Here’s The Truth Behind Biden’s 24/7 Port Operations Pledge

Here’s The Truth Behind Biden’s 24/7 Port Operations Pledge

Written by Lori Ann LaRocco, author of: “Trade War: Containers Don’t Lie, Navigating the Bluster” (Marine Money Inc., 2019) “Dynasties of the Sea: The Untold Stories of the Postwar Shipping Pioneers” (Marine Money Inc., 2018). First published on FreightWaves

When you tear away the frills of President Biden’s supply chain announcement, it is essentially a political pawn to push the infrastructure bill. The ugly truth is the congestion will not be alleviated anytime soon and it will definitely not be any better in the next 90 days. Why? 

It’s common sense and math. 

You can’t blame private-sector companies for this plan’s future letdown. Trade takes people and coordination among all the players within the supply chain. The ports and all of the stakeholders within these ports must be on the same page when it comes to a 24/7 operation.

The holes in this announcement are numerous.

First, 3,500 additional containers moved in a week is 200 containers a day. During the month of August, the San Pedro Bay ports moved 1,241,896 TEUs. This projection of 3,500 does not move the needle at all. That’s a mere 14,000 containers — which translates into just 1% of the total TEUs. This plan is being called a “sprint.”

Biden’s announcement of 24/7 ports is not accurate. Only one terminal out of the 12 in San Pedro is operating 24 hours a day — Total Terminals International (TTI) at the Port of Long Beach — and that every-second schedule is only Monday through Thursday, making it a 24/4 situation, not 24/7.

A Port of Long Beach official said discussions were taking place with other terminals. But as of now, no other terminals have signed on. In the pursuit of 24/7, you need all the players to make this successful.

The 24/7 operation at the Port of Los Angeles is not even happening. When asked if the port was going 24/7 on Thursday, the day after this announcement, the port press office answered in an email:

“No(t) one marine terminal will go 24/7 tomorrow. This [is] a process to work the details of expanded hours leading to around-the-clock work in the private sector. It will take all private- and public-sector partners to operationalize this. There are no fast levers, but we have more cargo than ever and need to move it safely and securely. Gene [Seroka, executive director] will be meeting with industry associates tomorrow on this. No ETA as of today.”

So the ports as of right now are status quo as it relates to expanded operations.

The reason for this lack of 24/7 is because every facet of the supply chain must be participating in an equal fashion. Truckers are not going to work 24/7 if they can’t pick up containers at a warehouse that is closed. The flow of trade moves when everyone in that flow is working. The question is what can be done to change the behaviors of those in the supply chain to go to 24/7?

This frustration can be read in a press release from the Harbor Trucking Association, which said the Biden administration’s plan did not address the core issues that have been plaguing the supply chain.

The release stated,

“While steamship lines and their marine terminal partners have been pointing the finger at the trucking industry for not utilizing appointments during this crisis, the underlying causes have continued to compound unchecked. Challenges faced by truckers doing business at the ports stem from productivity and efficiency issues that are not alleviated by merely shifting to 24/7 gate operations.”

The HTA said thousands of empty containers currently are sitting in motor carrier yards on top of the chassis, preventing those chassis from moving an import container off the dock.

“So those appointments go unused. … This is not an issue of unwillingness to pick up cargo, the entire supply chain wants this cargo moved. It is instead a tangled web of shifting constraints that impede and discourage participation,” the statement read.

Also in this plan FedEx, UPS and Walmart were mentioned in stepping up in helping alleviate the supply chain. 

When asked for specifics, FedEx global media relations responded:

“FedEx Logistics President and CEO Dr. Udo Lange appreciated the opportunity to join other business leaders and the administration to share our expertise and discuss supply chain issues, but we have no other details to share at this time.”

Walmart spokesperson Ashley Nolan said:

“We’ll increase throughput by as much as 50% during the nighttime hours being added at the port.”

At the time of publication, UPS did not respond to comment.

In the sea of faces of those attending this press event, a critical piece of the supply chain was missing — the ocean carriers and the port terminals. 

When Transportation Secretary Pete Buttigieg’s office was asked why there was no participation, the response was vague:

“The administration has and will continue to have a regular dialogue with ocean carriers and terminal operators.” 

And yet, at least one of those carriers has not been contacted — Hapag-Lloyd, one of the largest ocean shipping lines in the world.

“We have not been approached,” confirmed a company spokesperson.

“Ships are already operating 24/7 whenever possible. The challenge is to get containers off the terminal by truck and rail because the warehouses will not/cannot take deliveries on weekends. It is a lot about shippers’ inability to take delivery of their goods and infrastructure bottlenecks in the U.S.”

The carriers and the terminal operators are key pieces to this puzzle. The terminals are the key segment of the supply chain that not only schedules the truck container pickups and drop-offs, they also request the  labor to unload the vessels.

So if this is a 90-day sprint, the U.S. supply chain needs more muscle and a massive shot of adrenaline.

Tyler Durden
Fri, 10/15/2021 – 19:10

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4 In 10 TSA Employees Remain Unvaccinated As Deadline Looms

4 In 10 TSA Employees Remain Unvaccinated As Deadline Looms

While we wait to see what remains of the US army after hundreds of thousands of unvaccinated troops are told to pack up for not complying with Biden’s executive order (and whether that’s the moment China will decided to attack), we wonder if soon nobody will be able to fly as a few weeks from now the Transportation Security Administration may simply cease to exist.

According to CNN, the TSA says 4-in-10 members of its workforce, including screeners, remain unvaccinated against Covid-19 just weeks ahead of a looming deadline. The deadline for civilian federal government workers to be fully vaccinated is November 22 – the Monday before Thanksgiving, which just happens to be the busiest travel time of the year.

“We have about 60% of our workforce has been vaccinated, that that number needs to go quite a bit higher over the next few weeks,” TSA Administrator David Pekoske told CNN.

The November 22 deadline for being fully vaccinated is still six weeks away, but the deadlines for receiving the vaccines are rapidly approaching or, in the case of the Moderna vaccine, have already passed, since an individual has to receive the full schedule of doses and wait two weeks before being considered fully vaccinated.

In order to meet that deadline, the last possible date for receiving the first dose of the Pfizer vaccine is October 18, while the latest possible date for the first dose of Moderna was October 11. According to CNN, the Pfizer vaccine requires a three-week waiting period in between first and second doses. Moderna requires a four-week wait. The last possible date to receive the single-dose Johnson & Johnson vaccine is November 8, two weeks before the November 22 deadline.

Pekoske said he is “very hopeful” that the agency’s employees can meet the deadline and that there will not be worker shortages, however in light of mandatory requirements that clearly will not happen.

“We are building contingency plans, for if we do have some staffing shortages as a result of this, but I hope to avoid that,” he said.

It wasn’t clear what, if any, these contingency plans are.

Tyler Durden
Fri, 10/15/2021 – 18:50

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#EmptyShelvesJoe Trends On Twitter Amid Supply Chain Snarls 

#EmptyShelvesJoe Trends On Twitter Amid Supply Chain Snarls 

The hashtag #EmptyShelvesJoe was one of the hottest trends across Twitter Thursday as people en masse are waking up to the fact that international supply chains are clogged, and shortages have resulted in empty store shelves at their local retailer. 

The hashtag, number one in the US on Thursday, comes one day after President Biden issued a port directive to operate 24/7 to alleviate snarled supply chains. But the move to have Ports of Los Angeles and Long Beach, a point of entry for 40% of all US containerized goods, work in hyperdrive to alleviate congestion is “too little, too late” to save Christmas, said one top toymaker. 

Earlier this week, 80 container ships are at anchor and 64 at berths across the twin ports. The backlog doesn’t stop there as it takes well more than a week for entry into the port. Once the containers are unloaded, it takes another week to leave the port to warehouses.

Those tweeting the hashtag placed most of the blame on Biden and Transportation Secretary Pete Buttigieg for their inability to normalize supply chains as congestion creates shortages of consumer goods and rapid inflation. 

An aerial visual of the backlog at the Port of Los Angeles shows tens of thousands of containers are sitting dockside. Some have said it’s the lack of truck drivers that have resulted in delays. 

“Are f**king container yards are stuffed,” said one Twitter user. 

As the hashtag continued to go viral on Thursday afternoon, Twitter police decided to remove it from the list of trending topics. 

“Empty store shelves” on Google trends are also surging to their highest point since the 2020 pandemic. 

Here are some tweets of people across the county complaining about empty store shelves and using the #EmptyShelvesJoe hashtag. 



According to the latest Rasmussen poll, “62% of Americans say they’ve already noticed shortages of basic items in stores where they live.”

Broken supply chains, raging inflation in energy, food, and housing, and the overall cost of living getting more expensive – compound this all with shortages of consumer goods, the president’s job approval number continues to tumble. 

One can assume with congested supply chains unlikely to abate anytime soon, Biden will be blamed on Twitter for ruining Christmas as certain consumer goods won’t make it under the tree this year.    

Finally, just in case you wondered who was to blame for “empty shelves”, here is Joe Biden himself explaining it last year… “We don’t have a food shortage problem — we have a leadership problem.”

Tyler Durden
Fri, 10/15/2021 – 18:10

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Seattle School Cancels Halloween “Pumpkin Parade”; Says It “Marginalizes Students Of Color”

Seattle School Cancels Halloween “Pumpkin Parade”; Says It “Marginalizes Students Of Color”

Authored by GQ Pan via The Epoch Times,

A public elementary school in the Seattle area has reportedly canceled a Halloween-themed parade after school district officials said it “marginalizes” students of color, especially those from the black community.

Benjamin Franklin Day (B.F. Day) Elementary School, which serves the neighborhood in a northeastern suburb of Seattle, decided to discontinue the “Pumpkin Parade” holiday tradition this year on the advice of the school’s racial equity team, according to Seattle-based conservative radio host Jason Rantz.

In an Oct. 8 newsletter to parents obtained by Rantz, the school explained the rationale behind the decision to cancel the Pumpkin Parade, which traditionally involves a procession of children in Halloween costumes.

“Halloween events create a situation where some students must be excluded for their beliefs, financial status, or life experience,” the letter read.

“Costume parties often become an uncomfortable event for many children, and they distract students and staff from learning.

Large events create changes in schedules with loud noise levels and crowds. Some students experience over stimulation, while others must deal with complex feelings of exclusion. It’s uncomfortable and upsetting for kids.”

Instead of the Halloween festivities, students at B.F. Day Elementary may participate in fall events that are considered more inclusive, such as “thematic units of study about the fall” or review “autumnal artwork” while “sharing all the cozy feelings of the season.”

In a statement provided to Rantz, a spokesperson for Seattle Public Schools said the district supports the decision to cancel the parade, which “historically marginalizes students of color” who don’t celebrate the holiday.

“In alliance with SPS’s unwavering commitment to students of color, specifically African American males, the staff is committed to supplanting the Pumpkin Parade with more inclusive and educational opportunities during the school day,” the spokesperson stated.

Some parents are upset with the cancellation of the parade.

David Malkin, whose 7-year-old son is enrolled at B.F. Day, questioned whether the move actually helps anyone.

“I don’t see any way in which this actually addresses any inequities to the extent that there are any inequities,” Malkin told Rantz on his show.

“You know, this just seems like grandstanding on behalf of the principal and the staff who are predominantly white.”

Malkin, who is Asian, also said the decision lacked input from him or other parents.

“I’m sure they don’t want to hear from anyone of any race or ethnicity that doesn’t really want to go along with them in lockstep,” he said.

Tyler Durden
Fri, 10/15/2021 – 17:50

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Biden Supreme Court Commission Releases “Discussion Materials” on Court-Packing, Term Limits, and Other Issues


SupremeCourt3

The Supreme Court.

 

Yesterday, President Biden’s Commission on the Supreme Court released “discussion materials” covering a variety of issues, including court-packing and term limits for Supreme Court justices. These are preliminary reports and do not include actual recommendations. But they do provide a helpful window on the views of the Commission members.

As I and others predicted based on the Commission’s composition, the reports are generally skeptical about court-packing, but favorable to the idea of term limits. If, as some conservatives feared, Biden wanted the Commission to produce an endorsement of court-packing in order to generate political momentum for that idea, he wouldn’t have included so many court-packing skeptics among the members. He would instead have packed the Commission with packers!

The report addressing court-packing provides a detailed overview of arguments for and against the idea, and various proposals to increase or modify the composition of the Court. While it notes that “some” commission members are sympathetic to packing as a way to offset what they see as illegitimate Republican manipulation of the Supreme Court nomination process, the dominant tone is one of skepticism.

The report emphasizes that even many of those Commissioners who strongly dislike the current composition of the Court believe that court-packing “is likely to undermine, rather than enhance, the Supreme Court’s legitimacy … and there are significant reasons to be skeptical that expansion would serve democratic values.”

I am far from the only observer to interpret the report that way. Both liberal and conservative commentators have taken a similar view of it, and the report’s skeptical view of “court expansion” has  already attracted the ire of court-packing advocates. In fairness, at least one member of the Commission—Volokh Conspiracy co-blogger Will Baude—has criticized the draft for not being negative enough about court-packing. I too would prefer a more forceful condemnation of the idea. But the report’s more moderate approach is still enough to forestall giving court-packing advocates any additional momentum, and to make the point that even many progressive legal scholars believe such proposals are dangerously misguided.

As I recently pointed out, the decline in the Court’s popularity over the last few months creates a potential window of opportunity for court-packing advocates (though I also emphasized that it will not be easy for Democrats to take advantage of it, and not clear that they even want to). The Commission’s preliminary report does more to throw cold water on this potential fire than to fuel it.

By contrast, the draft report on term limits is much more positive. It emphasizes the widespread bipartisan support for the idea among academics, jurists, and others, and the ways in which an 18 year term limit could help address a number of problems. The report correctly emphasizes that this proposal enjoys broader support than any other considered by the Commission.

I too support term limits, so I welcome the report’s apparent endorsement of the idea. The report indicates that Commissioners are divided over the question of whether term limits require a constitutional amendment or can be enacted by statute. In my view, an amendment is indeed necessary, and allowing Congress to do it by statute would set a very dangerous precedent. The term limits report also includes insightful discussions of various organizational issues that must be addressed in order to implement term limits, including how to manage the transition to a term limit system and how to prevent conflicts of interest potentially caused by justices’ desire to pursue additional career opportunities after they have to leave the Court.

Although it has attracted less attention than the court–packing and term limits reports, the Commission has also issued a report on other proposals to limit the Supreme Court’s power, most notably jurisdiction-stripping and legislative override of Supreme Court decisions. The latter idea is, in my view, as radical a plan to neuter the Court as court-packing would be.

This report provides a balanced discussion of the longstanding debate over the limits of Congress’ authority to strip courts of jurisdiction of various types of cases. Significantly, the Commission members seem most skeptical of the more radical jurisdiction-stripping proposals, that would deny jurisdiction over some types of cases to all federal courts, as opposed to merely channeling those cases to one court instead of another. They are even more skeptical of proposals to deny jurisdiction to state courts, as well as federal ones.

With regards to legislative override, the report strikes me as more skeptical than about jurisdiction-stripping. It suggests that any such proposals may well be unconstitutional, and—if enacted—would likely be invalidated by the courts, thereby potentially producing a constitutional crisis.

NYU law Professor Christopher Jon Sprigman interprets the report as much more favorable to jurisdiction-stripping and legislative override than I do. Readers will have to judge for themselves, which of us is right. Perhaps both of us are influenced by our respective priors (he supports these ideas, while I do not). But I think, at the very least, that it’s hard to argue that the report is favorable to more radical ideas along these lines. It repeatedly emphasize that they may be unconstitutional and could lead to dangerous confrontations between the judiciary and Congress.

I would only add that progressives sympathetic to the idea of US version of legislative override similar to Canada’s Notwithstanding Clause would do well to take a look at how the latter has actually been used. It’s most significant invocations have been to shield from judicial review discriminatory Quebec legislation targeting religious and linguistic minorities. Perhaps our state and federal legislators are more enlightened than their Canadian counterparts. But progressives inclined to take comfort in such thoughts should consider whether they feel that way about Republican-controlled Congresses and state governments.

Finally, the Commission has put out a report focused on the Court’s rules for case selection, and various other procedural issues.  It covers such issues as reform of the “shadow docket,” proposals for an ethical code for Supreme Court justices, and the use of cameras in court. I will leave this one to commentators with greater expertise on the relevant issues. But, at least in my preliminary assessment, this report doesn’t advocate any radical or seriously problematic reforms. I agree with its apparent suggestion that cameras in the Court would not be a problem, and that the Court should continue its recently established practice of livestreaming of oral arguments.

All four reports are valuable resources for scholars and others interested in the subjects they cover, because they do an excellent job of surveying the literature on these issues, and summarizing arguments for and against various reform proposals. That will experts and legal commentators happy, but won’t do much to mollify anyone who hoped that the Commission would provide a rousing endorsement of radical reform.

I hope that the term limits report will help generate momentum for this idea, though it will not be easy to enact the necessary constitutional amendment. The other reports are valuable resources for experts, but probably won’t have more than a very modest impact on public debate.

It’s possible that the Commission’s final report (which may well include actual recommendations for reform) will take different positions form these preliminary documents. At this point, I doubt that will be the case. But time will tell!

 

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Child Marriage Prosecution Opinion as to the Lev Tahor Ultra-Orthodox Group, Described by Some as “Jewish Taliban”

From the start of Judge Nelson Román’s (long) opinion, in U.S. v. Helbrans (S.D.N.Y.):

This case involves the removal of two minors … from their Mother in New York, by members of Lev Tahor, an “ultra-orthodox Hasidic Jewish community currently in Guatemala,” of which the Mother and the Minors were previously a part. Defendants Nachman Helbrans … and Mayer Rosner (“Rosner”)… are members of Lev Tahor charged in a six-count superseding indictment for their involvement in the removal of the Minors with (1) conspiracy to transport a minor with intent to engage in criminal sexual activity, in violation of 18 U.S.C. §§ 2423(a), (e); (2) conspiracy to travel with intent to engage in illicit sexual conduct, in violation of 18 U.S.C. § 2423(b) and (e); (3) conspiracy to commit international parental kidnapping, unlawfully use a means of identification, and enter by false pretenses the secure area of an airport, in violation of 18 U.S.C. § 371; and (4) two counts of international parental kidnapping, in violation of 18 U.S.C. § 1204, in connection with a December 2018 kidnapping. (Superseding Indictment (“S2”), ECF No. 229.) Helbrans is also charged with an additional count of international parental kidnapping in violation of 18 U.S.C. § 1204 in connection with a March 2019 attempted kidnapping. Defendants’ requests to represent themselves pro se were granted by this Court following in-person hearings in February 2021. A trial of Helbrans and Rosner is scheduled to commence on October 18, 2021.

The Government has moved in limine: (1) for the admission at trial of (A) testimony regarding instances of uncharged criminal conduct, wrongs, or bad acts in connection with the rules within the Lev Tahor community; (B) statements by co-conspirators in furtherance of the conspiracy which are admissible pursuant to Rule 801(d)(2)(E) and/or statements against the declarants’ penal interest under Rule 804(b)(3); and (C) certain business records on the basis of written declarations pursuant to Rule 803(6) and 902(11); and (2) to preclude the defense from raising irrelevant arguments at trial including: (A) historic persecution of Lev Tahor by the United States and Israel, (B) discriminatory prosecution based on their religious views, (C) that because the marriage between Minor-1 and J. Rosner was predicated on their religious beliefs, it cannot form the basis for a criminal charge; (D) that their conduct must be excused because the Minors consented to traveling with the Defendants out of the country and Minor-1 consented to have sex with an adult; and (E) the family court order giving the Mother custody of the Minors was fraudulently obtained.

Defendants have also moved in limine, and appear to seek (1) an order from the Court prohibiting the Government’s use of the terms (A) “kidnapping” or “abduction” to describe the Defendants’ actions because the Government admits the Minors were not removed by force, (B) “victims” to describe the Minors, or (C) “cult” or otherwise characterize Lev Tahor as a religious community in which leaders “control” the minds of the members of group or otherwise coerce them to practice their religion in a certain way. Broadly construed, Defendants papers and the exhibits attached thereto also suggest that Defendants intend to assert the following defenses at trial (1) they are not guilty of kidnapping and kidnapping conspiracy because (A) as the Government admits, no force was used against the Minors; (B) Defendants were rescuing the Minors from abuse, and therefore “unlawful” exercise of parental rights by the Mother; and (C) the Family Court order was improper and has no legal effect; and as to (2) Minor-1 consented to marry, be transported, and engage in sexual activity with Jacob Rosner, and any sexual relations between them were within their religious marriage, and therefore the sex trafficking charges do not hold water….

The Defendants are members of Lev Tahor, a Jewish religious community of about 250 members founded in the 1980s by the father of Defendant Helbrans (“the late Rabbi Helbrans”). Defendant Helbrans took over as the community’s leader after his father passed away in 2016 or 2017. Regardless of their age, all brides in the Lev Tahor community are required to have sex with their husbands on predetermined intervals and new brides and grooms are instructed by community leaders on when and how to have sex before they are married.

In or about 2017, Helbrans arranged to have Minor-1, his then-twelve-year-old niece, engaged to be religiously “married” to J. Rosner, who was eighteen years old at the time. Minor-1 and J. Rosner were religiously “married” the following year when she was thirteen and he was nineteen. They were never legally married. They immediately began a sexual relationship with the goal of procreation….

In or around early November 2018, the Mother and her six children, including the Minors, left Lev Tahor and relocated to the United States.

On or about November 14, 2018, the Kings County Family Court in Brooklyn, New York … granted the Mother temporary sole custody of her six children, including the Minors, and enjoined the children’s father, Aaron Teller …, a leader in the Lev Tahor community not named as a defendant in this case, from having any communication with the children. The orders of the Family Court are collectively referred to as “the Family Court Order.” …

After the Mother and her children left Guatemala, the Defendants and others devised a plan to return the Minors, then fourteen and twelve years old, to Lev Tahor. At approximately 3:00 A.M. on or about December 8, 2018, Helbrans, Mordechay Malka, J. Rosner, and others removed the Minors from a home in Woodridge, New York. They, along with others, took the Minors to a hotel where they were provided with new clothes before they were driven to Scranton International Airport in Pennsylvania. Helbrans and the Minors, dressed in secular clothing, and using passports bearing the names of two of Helbrans’s children proceeded through airport security in Scranton, flew to Washington, D.C., then to Texas, and then took a bus across the border to Mexico. Other Defendants, including Mordechay Malka and J. Rosner, took separate routes out of the country to Mexico. Once in Mexico, Helbrans and others transported the Minors to several hotels and residences with assistance from Lev Tahor members in the United States, Mexico, and Guatemala. At various times, Helbrans and the Minors were met by Rosner, J. Rosner, Matityau Moshe Malka, and others.

On or about December 18, 2018, Mexican law enforcement raided a house in San Miguel Tlaixpan, Mexico, and detained Helbrans, Rosner, J. Rosner, and Matityau Moshe Malka, among other individuals. On December 26, 2018, officials from Mexico’s immigration authority, Instituto Nacional de Migración (“INM”), informed the FBI that INM had elected to deport Helbrans, Rosner, J. Rosner, and Matityau Moshe Malka—all of whom were and are U.S. citizens—from Mexico and deliver them into the custody of the FBI. On December 27, 2018, two INM officials accompanied Helbrans, Rosner, J. Rosner, and Matityau Moshe Malka on a commercial flight from Mexico City to New York. The FBI arrested Helbrans, Rosner, and J. Rosner upon their arrival at John F. Kennedy International Airport …, pursuant to a Complaint alleging that Helbrans, Rosner, and J. Rosner conspired to kidnap two victims….

On or about December 27, 2018, the Minors were recovered at a hotel in Mexico. At the time, the Minors were accompanied by Shmiel and Yoil Weingarten. In and around December 2018, the entire Lev Tahor community was seeking asylum in Iran.

The court decision generally comes out against the defendants. Haaretz reports, as to the last point:

Hundreds of members of the Jewish ultra-orthodox Lev Tahor sect are trying to reach Iran, where they requested political asylum in 2019, but their relatives are afraid that Tehran may use the group, who hold Israeli and American citizenships, as bargaining chips.

On the other hand, from the Times of Israel:

The spokesman for an anti-Zionist Haredi cult was recorded praising the IDF in a clip retrieved by The Times of Israel Wednesday, in what could threaten the extremist group’s ongoing efforts to seek asylum in the Islamic Republic of Iran.

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Biden Supreme Court Commission Releases “Discussion Materials” on Court-Packing, Term Limits, and Other Issues


SupremeCourt3

The Supreme Court.

 

Yesterday, President Biden’s Commission on the Supreme Court released “discussion materials” covering a variety of issues, including court-packing and term limits for Supreme Court justices. These are preliminary reports and do not include actual recommendations. But they do provide a helpful window on the views of the Commission members.

As I and others predicted based on the Commission’s composition, the reports are generally skeptical about court-packing, but favorable to the idea of term limits. If, as some conservatives feared, Biden wanted the Commission to produce an endorsement of court-packing in order to generate political momentum for that idea, he wouldn’t have included so many court-packing skeptics among the members. He would instead have packed the Commission with packers!

The report addressing court-packing provides a detailed overview of arguments for and against the idea, and various proposals to increase or modify the composition of the Court. While it notes that “some” commission members are sympathetic to packing as a way to offset what they see as illegitimate Republican manipulation of the Supreme Court nomination process, the dominant tone is one of skepticism.

The report emphasizes that even many of those Commissioners who strongly dislike the current composition of the Court believe that court-packing “is likely to undermine, rather than enhance, the Supreme Court’s legitimacy … and there are significant reasons to be skeptical that expansion would serve democratic values.”

I am far from the only observer to interpret the report that way. Both liberal and conservative commentators have taken a similar view of it, and the report’s skeptical view of “court expansion” has  already attracted the ire of court-packing advocates. In fairness, at least one member of the Commission—Volokh Conspiracy co-blogger Will Baude—has criticized the draft for not being negative enough about court-packing. I too would prefer a more forceful condemnation of the idea. But the report’s more moderate approach is still enough to forestall giving court-packing advocates any additional momentum, and to make the point that even many progressive legal scholars believe such proposals are dangerously misguided.

As I recently pointed out, the decline in the Court’s popularity over the last few months creates a potential window of opportunity for court-packing advocates (though I also emphasized that it will not be easy for Democrats to take advantage of it, and not clear that they even want to). The Commission’s preliminary report does more to throw cold water on this potential fire than to fuel it.

By contrast, the draft report on term limits is much more positive. It emphasizes the widespread bipartisan support for the idea among academics, jurists, and others, and the ways in which an 18 year term limit could help address a number of problems. The report correctly emphasizes that this proposal enjoys broader support than any other considered by the Commission.

I too support term limits, so I welcome the report’s apparent endorsement of the idea. The report indicates that Commissioners are divided over the question of whether term limits require a constitutional amendment or can be enacted by statute. In my view, an amendment is indeed necessary, and allowing Congress to do it by statute would set a very dangerous precedent. The term limits report also includes insightful discussions of various organizational issues that must be addressed in order to implement term limits, including how to manage the transition to a term limit system and how to prevent conflicts of interest potentially caused by justices’ desire to pursue additional career opportunities after they have to leave the Court.

Although it has attracted less attention than the court–packing and term limits reports, the Commission has also issued a report on other proposals to limit the Supreme Court’s power, most notably jurisdiction-stripping and legislative override of Supreme Court decisions. The latter idea is, in my view, as radical a plan to neuter the Court as court-packing would be.

This report provides a balanced discussion of the longstanding debate over the limits of Congress’ authority to strip courts of jurisdiction of various types of cases. Significantly, the Commission members seem most skeptical of the more radical jurisdiction-stripping proposals, that would deny jurisdiction over some types of cases to all federal courts, as opposed to merely channeling those cases to one court instead of another. They are even more skeptical of proposals to deny jurisdiction to state courts, as well as federal ones.

With regards to legislative override, the report strikes me as more skeptical than about jurisdiction-stripping. It suggests that any such proposals may well be unconstitutional, and—if enacted—would likely be invalidated by the courts, thereby potentially producing a constitutional crisis.

NYU law Professor Christopher Jon Sprigman interprets the report as much more favorable to jurisdiction-stripping and legislative override than I do. Readers will have to judge for themselves, which of us is right. Perhaps both of us are influenced by our respective priors (he supports these ideas, while I do not). But I think, at the very least, that it’s hard to argue that the report is favorable to more radical ideas along these lines. It repeatedly emphasize that they may be unconstitutional and could lead to dangerous confrontations between the judiciary and Congress.

I would only add that progressives sympathetic to the idea of US version of legislative override similar to Canada’s Notwithstanding Clause would do well to take a look at how the latter has actually been used. It’s most significant invocations have been to shield from judicial review discriminatory Quebec legislation targeting religious and linguistic minorities. Perhaps our state and federal legislators are more enlightened than their Canadian counterparts. But progressives inclined to take comfort in such thoughts should consider whether they feel that way about Republican-controlled Congresses and state governments.

Finally, the Commission has put out a report focused on the Court’s rules for case selection, and various other procedural issues.  It covers such issues as reform of the “shadow docket,” proposals for an ethical code for Supreme Court justices, and the use of cameras in court. I will leave this one to commentators with greater expertise on the relevant issues. But, at least in my preliminary assessment, this report doesn’t advocate any radical or seriously problematic reforms. I agree with its apparent suggestion that cameras in the Court would not be a problem, and that the Court should continue its recently established practice of livestreaming of oral arguments.

All four reports are valuable resources for scholars and others interested in the subjects they cover, because they do an excellent job of surveying the literature on these issues, and summarizing arguments for and against various reform proposals. That will experts and legal commentators happy, but won’t do much to mollify anyone who hoped that the Commission would provide a rousing endorsement of radical reform.

I hope that the term limits report will help generate momentum for this idea, though it will not be easy to enact the necessary constitutional amendment. The other reports are valuable resources for experts, but probably won’t have more than a very modest impact on public debate.

It’s possible that the Commission’s final report (which may well include actual recommendations for reform) will take different positions form these preliminary documents. At this point, I doubt that will be the case. But time will tell!

 

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Child Marriage Prosecution Opinion as to the Lev Tahor Ultra-Orthodox Group, Described by Some as “Jewish Taliban”

From the start of Judge Nelson Román’s (long) opinion, in U.S. v. Helbrans (S.D.N.Y.):

This case involves the removal of two minors … from their Mother in New York, by members of Lev Tahor, an “ultra-orthodox Hasidic Jewish community currently in Guatemala,” of which the Mother and the Minors were previously a part. Defendants Nachman Helbrans … and Mayer Rosner (“Rosner”)… are members of Lev Tahor charged in a six-count superseding indictment for their involvement in the removal of the Minors with (1) conspiracy to transport a minor with intent to engage in criminal sexual activity, in violation of 18 U.S.C. §§ 2423(a), (e); (2) conspiracy to travel with intent to engage in illicit sexual conduct, in violation of 18 U.S.C. § 2423(b) and (e); (3) conspiracy to commit international parental kidnapping, unlawfully use a means of identification, and enter by false pretenses the secure area of an airport, in violation of 18 U.S.C. § 371; and (4) two counts of international parental kidnapping, in violation of 18 U.S.C. § 1204, in connection with a December 2018 kidnapping. (Superseding Indictment (“S2”), ECF No. 229.) Helbrans is also charged with an additional count of international parental kidnapping in violation of 18 U.S.C. § 1204 in connection with a March 2019 attempted kidnapping. Defendants’ requests to represent themselves pro se were granted by this Court following in-person hearings in February 2021. A trial of Helbrans and Rosner is scheduled to commence on October 18, 2021.

The Government has moved in limine: (1) for the admission at trial of (A) testimony regarding instances of uncharged criminal conduct, wrongs, or bad acts in connection with the rules within the Lev Tahor community; (B) statements by co-conspirators in furtherance of the conspiracy which are admissible pursuant to Rule 801(d)(2)(E) and/or statements against the declarants’ penal interest under Rule 804(b)(3); and (C) certain business records on the basis of written declarations pursuant to Rule 803(6) and 902(11); and (2) to preclude the defense from raising irrelevant arguments at trial including: (A) historic persecution of Lev Tahor by the United States and Israel, (B) discriminatory prosecution based on their religious views, (C) that because the marriage between Minor-1 and J. Rosner was predicated on their religious beliefs, it cannot form the basis for a criminal charge; (D) that their conduct must be excused because the Minors consented to traveling with the Defendants out of the country and Minor-1 consented to have sex with an adult; and (E) the family court order giving the Mother custody of the Minors was fraudulently obtained.

Defendants have also moved in limine, and appear to seek (1) an order from the Court prohibiting the Government’s use of the terms (A) “kidnapping” or “abduction” to describe the Defendants’ actions because the Government admits the Minors were not removed by force, (B) “victims” to describe the Minors, or (C) “cult” or otherwise characterize Lev Tahor as a religious community in which leaders “control” the minds of the members of group or otherwise coerce them to practice their religion in a certain way. Broadly construed, Defendants papers and the exhibits attached thereto also suggest that Defendants intend to assert the following defenses at trial (1) they are not guilty of kidnapping and kidnapping conspiracy because (A) as the Government admits, no force was used against the Minors; (B) Defendants were rescuing the Minors from abuse, and therefore “unlawful” exercise of parental rights by the Mother; and (C) the Family Court order was improper and has no legal effect; and as to (2) Minor-1 consented to marry, be transported, and engage in sexual activity with Jacob Rosner, and any sexual relations between them were within their religious marriage, and therefore the sex trafficking charges do not hold water….

The Defendants are members of Lev Tahor, a Jewish religious community of about 250 members founded in the 1980s by the father of Defendant Helbrans (“the late Rabbi Helbrans”). Defendant Helbrans took over as the community’s leader after his father passed away in 2016 or 2017. Regardless of their age, all brides in the Lev Tahor community are required to have sex with their husbands on predetermined intervals and new brides and grooms are instructed by community leaders on when and how to have sex before they are married.

In or about 2017, Helbrans arranged to have Minor-1, his then-twelve-year-old niece, engaged to be religiously “married” to J. Rosner, who was eighteen years old at the time. Minor-1 and J. Rosner were religiously “married” the following year when she was thirteen and he was nineteen. They were never legally married. They immediately began a sexual relationship with the goal of procreation….

In or around early November 2018, the Mother and her six children, including the Minors, left Lev Tahor and relocated to the United States.

On or about November 14, 2018, the Kings County Family Court in Brooklyn, New York … granted the Mother temporary sole custody of her six children, including the Minors, and enjoined the children’s father, Aaron Teller …, a leader in the Lev Tahor community not named as a defendant in this case, from having any communication with the children. The orders of the Family Court are collectively referred to as “the Family Court Order.” …

After the Mother and her children left Guatemala, the Defendants and others devised a plan to return the Minors, then fourteen and twelve years old, to Lev Tahor. At approximately 3:00 A.M. on or about December 8, 2018, Helbrans, Mordechay Malka, J. Rosner, and others removed the Minors from a home in Woodridge, New York. They, along with others, took the Minors to a hotel where they were provided with new clothes before they were driven to Scranton International Airport in Pennsylvania. Helbrans and the Minors, dressed in secular clothing, and using passports bearing the names of two of Helbrans’s children proceeded through airport security in Scranton, flew to Washington, D.C., then to Texas, and then took a bus across the border to Mexico. Other Defendants, including Mordechay Malka and J. Rosner, took separate routes out of the country to Mexico. Once in Mexico, Helbrans and others transported the Minors to several hotels and residences with assistance from Lev Tahor members in the United States, Mexico, and Guatemala. At various times, Helbrans and the Minors were met by Rosner, J. Rosner, Matityau Moshe Malka, and others.

On or about December 18, 2018, Mexican law enforcement raided a house in San Miguel Tlaixpan, Mexico, and detained Helbrans, Rosner, J. Rosner, and Matityau Moshe Malka, among other individuals. On December 26, 2018, officials from Mexico’s immigration authority, Instituto Nacional de Migración (“INM”), informed the FBI that INM had elected to deport Helbrans, Rosner, J. Rosner, and Matityau Moshe Malka—all of whom were and are U.S. citizens—from Mexico and deliver them into the custody of the FBI. On December 27, 2018, two INM officials accompanied Helbrans, Rosner, J. Rosner, and Matityau Moshe Malka on a commercial flight from Mexico City to New York. The FBI arrested Helbrans, Rosner, and J. Rosner upon their arrival at John F. Kennedy International Airport …, pursuant to a Complaint alleging that Helbrans, Rosner, and J. Rosner conspired to kidnap two victims….

On or about December 27, 2018, the Minors were recovered at a hotel in Mexico. At the time, the Minors were accompanied by Shmiel and Yoil Weingarten. In and around December 2018, the entire Lev Tahor community was seeking asylum in Iran.

The court decision generally comes out against the defendants. Haaretz reports, as to the last point:

Hundreds of members of the Jewish ultra-orthodox Lev Tahor sect are trying to reach Iran, where they requested political asylum in 2019, but their relatives are afraid that Tehran may use the group, who hold Israeli and American citizenships, as bargaining chips.

On the other hand, from the Times of Israel:

The spokesman for an anti-Zionist Haredi cult was recorded praising the IDF in a clip retrieved by The Times of Israel Wednesday, in what could threaten the extremist group’s ongoing efforts to seek asylum in the Islamic Republic of Iran.

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Texas’ Abortion Ban Will Remain In Place Until at Least December

Texas’ Abortion Ban Will Remain In Place Until at Least December

Texas’ abortion ban will remain in place until at least until early Dec. 6.

The Fifth Circuit Court of Appeals scheduled oral arguments in the week of Dec. 6 in a challenge to the law brought by clinics and reproductive rights advocates. 

In a split decision, ˚ for the same reasons other judges on the court denied the clinics’ request.

Most abortions in Texas will be banned until at least early December, after a federal appeals court in New Orleans said Thursday it will keep a trial judge’s ruling law on ice until the issue is taken up in a related challenge.

The 5th Circuit Court of Appeals has scheduled oral arguments in the week of Dec. 6.

Texas bans abortions after about the sixth week of pregnancy, before most women realize they’re pregnant.

Judges appointed by former Presidents Donald Trump and George W. Bush sided with Texas in the latest ruling, while a judge appointed by Bill Clinton.

Read the filing below:

00b477c9-e98d-42a9-bb7b-a800945feebd by

Tyler Durden
Fri, 10/15/2021 – 17:30

via ZeroHedge News https://ift.tt/3lKSR7X Tyler Durden

Short Circuit: A Roundup of Recent Federal Court Decisions

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

Qualified Immunity can be a confusing topic, especially if the people explaining it to you don’t understand it. So it is with Virginia gubernatorial candidates Terry McAuliffe and Glenn Youngkin, who have both come out in support of an imaginary version of that doctrine. But never fear! IJ Attorney Patrick Jaicomo and Assistant Director of Activism Chad Reese set them straight in the Washington Post.

  • Capitol Police officers have a habit of forgetting their guns in the bathroom. When one officer, with a history of disciplinary problems, emails a picture of one such gun to a reporter, creating a media frenzy, she is demoted for violating the department’s media policy. A First Amendment violation? D.C. Circuit: On one hand, this was a matter of public concern. On the other hand, the officer said she didn’t want the reporter to do anything with the photo and only claimed she had spoken on a matter of public concern months later. Balanced against the department’s interest in efficiency, harmony, and security, there’s no First Amendment violation.
  • Among a series of similar blockbuster rulings that came down on Thursday, the First Circuit holds for the first time that page 15, line 23 of its recent opinion in U.S. Bank, N.A. v. Desmond (In re Mbazira) should read “Id. (emphasis omitted).” and not “Id. (emphasis omitted).”
  • Having given this defendant’s plaint a thorough perscrutation, Judge Selya of the First Circuit undertakes a two-step pavane that pellucidly limns the reasons why, under the protean standard of reasonableness, a 46-month term of immurement was a condign punishment for a felon-in-possession charge. (Ed.: No vocab quiz this week; Selya didn’t use any obscure words.)
  • Federal law prohibits violence against those trying to exercise their religion at a “place of religious worship”—which, says the Second Circuit, does not include the card tables in Queens where members of the Falun Gong protest their treatment at the hands of the Chinese Communist Party. (Concurrence: What part of “violence at places of worship” counts as “interstate commerce,” exactly?)
  • Beating someone one time for being a Christian might not be “religious persecution.” Jailing someone briefly for being a Christian might not be. Threatening once to punish someone if he returns to church might not be. Third Circuit: Sure, guys, but all three together maybe could be, right?
  • Two years ago, the Supreme Court limited the SEC’s power to order disgorgement to situations where the disgorgement was “for the benefit of investors,” which, says the Fifth Circuit, is easily satisfied when the SEC demands you disgorge profits so it can give them back to specific defrauded investors.
  • Department of Housing and Urban Development: We may have promulgated rules limiting our discretion when tenants in Section 8 housing face substandard conditions, but those rules were really more like guidelines. Fifth Circuit (over a dissent): Sorry, those guidelines look a lot like rules. Follow ’em.
  • Perhaps you heard about the recent Texas law banning most abortions and deputizing the public to enforce that ban? No? Well, it was easy to miss. Anyway, the Fifth Circuit has now explained why it is allowing the law to remain in effect: The same reasons they previously allowed it to remain in effect.
  • The Township of Canton, Mich. has a tree ordinance that requires property owners to get a tree removal permit and to replant three trees for any “landmark trees” that are removed from a property (regular old trees must be replanted one to one). Developer: As applied to us, that’s a per se taking, a regulatory taking, and an unconstitutional condition. Sixth Circuit: We agree it’s an unconstitutional condition, but before we get to that, here are some fascinating anecdotes about the history of tree ordinances.
  • Lung-cancer patient is arrested and then (allegedly) denied his prescribed medication and forbidden from continuing his chemotherapy, resulting in his death. Which, says the Sixth Circuit, sounds awful, but also doesn’t sound like the fault of the Acting Commissioner for the Department of Corrections, who at most stood idly by while the prisoner was entrusted to a third-party medical contractor that proved inadequate.
  • Some famous legal doctrines can be remembered through mnemonics. The statute of frauds is remembered by the acronym “MY LEGS.” And the equitable doctrine of laches is remembered by the phrase “nothing is ever barred by laches.” On that note, the Sixth Circuit holds that a motion to enforce a consent decree was not barred by laches.
  • The Michigan Department of Corrections serves a universal religious diet to all prisoners with religious dietary needs. Since some religions prohibit eating meat, the diet is vegan. Uh oh! Two Jewish inmates believe their religion requires them to eat a meal with kosher meat and a meal with dairy on the Jewish Sabbath and four Jewish holidays (and also cheesecake on Shavuot). Is the forced vegan diet a RLUIPA violation? Prison officials: This could cost us up to $10,000 a year! Sixth Circuit: Your food budget is $39 million; there’s no compelling interest in avoiding a 0.02% increase.
  • If you’re a convicted felon, it’s best not to shoot up in a residential parking lot. If you are going to shoot up in a parking lot, though, it’s best not to leave a BB gun in plain sight in the back seat, because that might lead to a search of the car. But if you absolutely must leave a BB gun in plain sight in the back seat, it is strongly in your interest not to have a real gun in the front seat, because that is a federal crime. Sixth Circuit: Conviction for felon in possession affirmed.
  • The American Board of Medical Specialties is the nonprofit that decides which physicians are “Board Certified,” a credential that requires annual continuing education. The Association of American Physicians & Surgeons sues the Board, alleging that it violated the Sherman Act by conspiring with hospitals and insurers to make Board Certification effectively mandatory. Continuing education, they argue, produces no measurable benefits, yet the Board has convinced hospitals and insurers to deny staff privileges and in-network status to physicians who don’t pay for it. Seventh CircuitTwombly‘d!
  • In Arkansas, it’s a crime to sport a fully cracked windshield (i.e., one with a crack running from roof post to roof post). It is not, however, a crime to sport a partially cracked one. But what if a police officer sees your partially cracked windshield and pulls you over anyway? And searches you? And finds your handgun and methamphetamine? In those circumstances, you would be out of luck, says the Eighth Circuit.
  • In this appeal concerning whether a tax debt was discharged in bankruptcy, the Ninth Circuit, per District Judge Breyer (Stephen’s brother), just attaches the trial court ruling and says “ignore footnote six.” Kind of phoning it in, guys.
  • 2015: Man pleads guilty to charges predicated on the notion that conspiracy to commit Hobbs Act robbery is a crime of violence. 2019: Supreme Court says conspiracy to commit Hobbs Act robbery is not a crime of violence. Man: I would like to take back my plea. Ninth Circuit: You waived your appeal rights and thereby assumed the risk that the law might change in your favor. The conviction and 14-year sentence stand. But don’t let pass unnoticed the Ninth Circuit’s deplorably all-too-common characterization of O’Reilly Auto Parts as “O’Reilly’s Auto Parts.” IT’S NOT POSSESSIVE.
  • Do foreign nationals have a due-process right to enter the United States to attend a civil-forfeiture trial involving their property? No, says the Eleventh Circuit, in an uncharacteristically pleasing opinion (from a visual, typographical perspective). Improved margins? And is that a new font? Keep up the good work.
  • When Follies, a strip club in Chamblee, Ga. obtained a liquor license for 2018, it was allowed to sell booze until 3:00 a.m. But in February 2018, the City enacted an ordinance that required all businesses to stop selling liquor by 2:00 a.m. Monday through Saturday, and by 11:59 p.m. on Sunday. The club sues, alleging that they have a vested right to sell liquor until 3:00. Eleventh Circuit: You have a vested right in your liquor license, not in the specific hours you’re allow to serve liquor. (Doesn’t really matter one way or the other, though—the law drove Follies under last year.)
  • And in en banc news, all federal appellate judges in active service decided not to create any en banc news this week.

After Rudy Carey overcame his long battle with drug and alcohol addiction in 2007, he wanted to help others who were similarly struggling. So he studied and trained to become a substance-abuse counselor, and even won a “counselor of the year” award. But after five years of work, Virginia told him he could not be a counselor because of an assault conviction from 2004, when Rudy was still an addict. But people change, and when they do, they deserve a fresh start. That’s why—represented by IJ—Rudy is fighting back!

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