Throughout most of the impeachment trial, Chief Justice Roberts said little, and he did it very well. But at several junctures, when tested, Roberts handled himself with composure and poise. Consider a few examples.
First, Senator Elizabeth Warren posed a written question that was a not-too-thinly veiled criticism of the Chief. Roberts, without flinching, read the question aloud:
“At a time when large majorities of Americans have lost faith in government, does the fact that the chief justice is presiding over an impeachment trial in which Republican senators have thus far refused to allow witnesses or evidence contribute to the loss of legitimacy of the chief justice, the Supreme Court, and the Constitution?”
Roberts showed no visible reaction after reading the question. Ultimately, Warren’s question may have backfired. Senator Murkowski may have voted against subpoenas in light of Warren’s attack on the Chief. She explained, “It has also become clear some of my colleagues intend to further politicize this process, and drag the Supreme Court into the fray, while attacking the chief justice.”
Had Murkowski voted to subpoena witnesses, the Senate would have split 50-50. Would Roberts have broken the tie? Senator Schumer posed this question in the form of a parliamentary inquiry. He asked if Roberts was aware that Chief Justice Chase cast two tie-breaking votes during the Johnson Impeachment trial
Roberts read from a prepared statement(my rough transcript):
I am Mr. Leader. The one concerned a motion to adjourn, the other concerned a motion to close deliberations. I do not regard those isolated episodes 150 years ago as sufficient to support a general authority to break ties. If the members of this body elected by the people and accountable to them divide equally on a motion, the normal rule is that the motion fails. I think it would be inappropriate for me, an unelected official from a different branch of government to assert the power to change that result so that the motion would succeed.
By the time Schumer had asked this question, the critical votes had already been cast. It is not clear why Schumer failed to pose this question earlier.
I hope, in due time, to address some of the responses that followed my New York Times op-ed. For now, I will flag an addendum co-blogger Keith Whittington graciously added to his post. I briefly explained how Alan Dershowitz went far, far beyond my position on mixed motives.
There is a simple, but important distinction between me and Dershowitz. In my view, an action taken with mixed motives–both personal political advantage and for promoting the general welfare–should not be considered an abuse of power. For Dershowitz, an action taken solely based on advancing personal political advantage cannot be an abuse of power, precisely because promoting personal politics is in the national interest.
Given the current schedule, the trial will likely draw to a close on Wednesday.
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Putting yourself in the mind of someone who commits an act of illegality is perhaps the only way we can begin to understand the motivation behind the transgression. A common reflex reaction to the most heinous of crimes is to simply call for the perpetrator to be removed from society and put in prison. Out of sight, out of mind. Whilst this is not an unreasonable expectation, it does not get to the root of why he or she became a criminal.
We can take a similar stance when it comes to globalism. If a self appointed elite who permeate institutions like the Bank for International Settlements and the IMF share a desire to concentrate world power through a centralised network of global governance, rather than simply rebel against this vision is it not equally as important to try and understand the vision from the perspective of those who created it? I would argue that to comprehend the minds of global planners it is necessary to mentally place yourself into their way of thinking.
A couple of years ago I published an article called, Order Out of Chaos: A Look at the Trilateral Commission, where I examined some of the key motivations behind this particular institution’s goals. I quoted past members of the Commission openly rejecting national sovereignty and championing the interdependence of nations. One of those quotes was from Sadako Ogata, a former member of the Trilateral Commission’s Executive Committee, who at an event to mark 25 years of the institution remarked how ‘international interdependence requires new and more intensive forms of international cooperation to counteract economic and political nationalism‘.
Shortly after the Trilateral Commission was founded in 1973, one of its members, Richard Gardner, wrote an essay for Foreign Affairs magazine (the official publication of the Council on Foreign Relations). In ‘The Hard Road to World Order‘, Gardner emphasised the objective of dismantling national sovereignty:
In short, the ‘house of world order’ will have to be built from the bottom up rather than from the top down. It will look like a great ‘booming, buzzing confusion,’ to use William James’ famous description of reality, but an end run around national sovereignty, eroding it piece by piece, will accomplish much more than the old-fashioned frontal assault.
With Britain in the process of leaving the European Union, you could argue that one of the main planks of the Commission’s agenda has failed. If the global elite want the integration of European nations, and for the majority of those nations to be controlled through a centralised behemoth like the EU, surely seeing the UK become independent from the union goes against everything they believe in? Not necessarily.
Back in 2014 and before globalists began touting political protectionism / nationalism as a danger to financial stability, the Trilateral Commission published a paper called,’Credible European Governance‘. Within the paper the UK’s membership of the single market is discussed, an issue which has been central to the narrative on Brexit since the referendum:
A debate on competences has been launched by the British government on Britain’s future position in Europe where reference is made to the Single Market. Today, most EU countries accept that the euro area represents what President Van Rompuy calls the “symbolic heart of the European Union”. For the United Kingdom, the single market is the essence of the EU. Can these two visions continue to coexist within the EU, now that the euro area is surmounting its “existential crisis”?
I asked in 2017 whether this passage in particular was not only questioning the UK’s position inside the single market, but by extension it’s membership of the European Union. It was the same paper that quoted Jean Monnet, one of the founding fathers of the European Union:
People only accept change when they are faced with necessity, and only recognize necessity when crisis is upon them.
As I have discussed in previous articles, this philosophy gives credence to the theory that crisis scenarios, rather than being a detriment to the aspirations of globalists, present an opportunity to further their grip on power.
At the latter end of 2015, just months before the EU referendum, the Commission produced another paper conceived by four David Rockefeller fellows – ‘EUROPE’S NEW NORMAL: SIMULTANEOUS CRISES THAT THREATEN TO UNRAVEL THE EU‘. The authors wrote at length about the growing distrust of ‘ever closer union‘ following the European debt crisis that originated after the collapse of Lehman Brothers:
Many Europeans have come to suspect that the EU’s institutions have become overly powerful and some think that they have even used the latest crises for a further power grab.
A solution put forward by the fellows was that ‘some flow into the opposite direction might help Europeans to regain trust in the European process‘.
One interpretation of this remark is that countries be granted a platform to express their grievances with the European Union, perhaps even to the point of seeking renewed independence or opting to withdraw from the bloc altogether. From their own perspective the union desires a sharing of sovereignty rather than individual expressions of it. Therefore, a nation instigating a greater level of autonomy (dubbed protectionism / populism in some quarters) might eventually suffer lasting consequences given the steadfast and federalist nature of the supranational EU. Over time countries demonstrating more nationalistic tendencies could quite easily unravel into crisis. Especially if separation from the union results in a nation being compromised economically. In this scenario, might those same Europeans opposed to further integration become more receptive to the idea?
The ultimate question then is whether the outbreak of a ‘crisis’ is organic, in the sense that it happens beyond the control of government and globalist institutions. Or whether instances such as Brexit were designed to happen to further the agenda for more power. You may ask why the UK would be permitted to leave the EU when the objective is for ‘ever closer union‘. But without Brexit and further instances of a rise in ‘populism‘, calls for reform have no traction. Crisis must either originate or be instigated to achieve the desired response from the electorate. Calling for reform inside a vacuum of no discernible unrest on a geopolitical level leaves institutions like the EU exposed to greater scrutiny.
Here, Chatham House observed that ‘the process of globalization demanded that all states adapt to being part of a shared project and subject themselves to its norms and laws‘, and that ‘the European Union became the vanguard of this process of post‑nationalism.’
They identified that European identity was essentially anti-nationalist in nature. But the growth of nationalism witnessed throughout Europe over the past five years has distorted this belief. Combating it will require ‘investing over the coming years in the legitimacy of major international institutions such as the United Nations, World Trade Organization, and the International Monetary Fund.’
According to Chatham House, without investment, ‘these institutions will find they are increasingly ineffective.’ In short, the advent of a new wave of nationalism has created a narrative that global bodies will require more power to shore up both trade and economic stability now and into the future.
At the same time this article was published, it was announced at the World Economic Forum that businessman George Soros is to launch a ‘global network of higher education‘ against nationalism, with investment of $1 billion. By coincidence or otherwise, Chatham House is involved in the initiative. Here is what Soros himself said about it:
I believe that as a long-term strategy our best hope lies in access to quality education, specifically an education that reinforces the autonomy of the individual by cultivating critical thinking and emphasising academic freedom.
The tide turned against open societies after the crash of 2008 because it constituted a failure of international co-operation. This in turn led to the rise of nationalism, the great enemy of open society.
But is a resurgence of nationalism really the ‘great enemy‘ that Soros makes out, given that crisis on a global scale invariably leads to opportunity? One example is from an op-ed written by former IMF Deputy Director Mohamed A. El-Erian, who in 2017 questioned whether a rise in populism and nationalism throughout the world could be remedied by revamping the IMF’s Special Drawing Rights:
So, do today’s anti-globalisation winds – caused in part by poor global policy coordination in the context of too many years of low and insufficiently inclusive growth – create scope for enhancing the SDR’s role and potential contributions?
We have seen as well how the EU and the World Trade Organisation have presented proposals for the wide scale reformation of the WTO in the wake of renewed nationalism. And as regular readers will know, central banks led by the BIS and IMF are rapidly advancing plans to reform global payment systems and introduce digital currencies. These were not public considerations prior to the likes of Brexit. They only started to gather momentum after nationalism became a permanent fixture on the geopolitical landscape.
The overriding sentiment from globalists has been that a combination of political and economic protectionism is a direct threat to financial stability. The IMF, the BIS and the World Bank have all over recent months been ramping up warnings about the dangers of an impending economic downturn. Two weeks ago the IMF’s new Managing Director Kristalina Georgieva commented at the Peterson Institute of International Economics in Washington:
We have to learn the lessons of history while adapting them for our times. We know that excessive inequality hinders growth and hollows out a country’s foundations. It erodes trust within society and institutions. It can fuel populism and political upheaval.
Now is the time to put yourself into the mind of a globalist. Whether it be the Innovation BIS 2025 project or the UN’s Agenda 2030 sustainability goals, what circumstances would benefit these people the most in furthering their ambitions? What would have to occur for the elite to gain widespread public support for policies that would fundamentally change our way of life? If an increased break out of trade protectionism and political populism triggered an economic collapse, would this impair the autonomy of global institutions? Or would it serve to reinvigorate them in the sense of scapegoating nationalism as being responsible for the rupture of the ‘rules based global order‘ founded after World War Two?
From a globalist perspective, national sovereignty – the independent nation state – has no place in an interconnected world. It is an outmoded concept. The goal is always to further centralise power. But by what means exactly?
Recall what Richard Gardner said back in 1974: ‘an end run around national sovereignty, eroding it piece by piece, will accomplish much more than the old-fashioned frontal assault.’
The institutions cited in this article are not ignorant to the plight of the global economy. The policies enacted since 2008, from near zero interest rates and trillions of dollars in quantitative easing measures to rising interest rates and quantitative tightening, has brought the financial system to where it is today. Central banks know perfectly well the effect their policies have on the health of economies, evidenced by comments from Federal Reserve chairman Jerome Powell back in 2012:
Right now, we are buying the market, effectively, and private capital will begin to leave that activity and find something else to do. So when it is time for us to sell, or even to stop buying, the response could be quite strong; there is every reason to expect a strong response.
Meanwhile, we look like we are blowing a fixed-income duration bubble right across the credit spectrum that will result in big losses when rates come up down the road. You can almost say that that is our strategy.
From a UK standpoint, the country’s departure from the EU may appear on the surface to be rallying against the tide of globalism. But my concern is that globalists will successfully manage to position Brexit and the spectre of a global trade conflict as causes for an economic collapse, when in fact it is monetary policy over the last twelve years which will be the primary culprit.
Rather than heavy handedly marching into western nations and claiming their sovereignty, I would be concerned that the global elite will allow nationalist movements to fall on their own sword, and for the onset of a series of crises to consume geopolitics throughout the next decade. The job then would be to implement a whole raft of reforms and to educate the next generation on the perils of self determination.
The realisation of a ‘new world order‘ means tearing down existing structures, or at the very least jeopardising them to the point of collapse, to facilitate the new. Out of resurgent nationalism may come a swathe of centralised directives that make today’s level of globalisation seem tame by comparison.
Throughout most of the impeachment trial, Chief Justice Roberts said little, and he did it very well. But at several junctures, when tested, Roberts handled himself with composure and poise. Consider a few examples.
First, Senator Elizabeth Warren posed a written question that was a not-too-thinly veiled criticism of the Chief. Roberts, without flinching, read the question aloud:
“At a time when large majorities of Americans have lost faith in government, does the fact that the chief justice is presiding over an impeachment trial in which Republican senators have thus far refused to allow witnesses or evidence contribute to the loss of legitimacy of the chief justice, the Supreme Court, and the Constitution?”
Roberts showed no visible reaction after reading the question. Ultimately, Warren’s question may have backfired. Senator Murkowski may have voted against subpoenas in light of Warren’s attack on the Chief. She explained, “It has also become clear some of my colleagues intend to further politicize this process, and drag the Supreme Court into the fray, while attacking the chief justice.”
Had Murkowski voted to subpoena witnesses, the Senate would have split 50-50. Would Roberts have broken the tie? Senator Schumer posed this question in the form of a parliamentary inquiry. He asked if Roberts was aware that Chief Justice Chase cast two tie-breaking votes during the Johnson Impeachment trial
Roberts read from a prepared statement(my rough transcript):
I am Mr. Leader. The one concerned a motion to adjourn, the other concerned a motion to close deliberations. I do not regard those isolated episodes 150 years ago as sufficient to support a general authority to break ties. If the members of this body elected by the people and accountable to them divide equally on a motion, the normal rule is that the motion fails. I think it would be inappropriate for me, an unelected official from a different branch of government to assert the power to change that result so that the motion would succeed.
By the time Schumer had asked this question, the critical votes had already been cast. It is not clear why Schumer failed to pose this question earlier.
I hope, in due time, to address some of the responses that followed my New York Times op-ed. For now, I will flag an addendum co-blogger Keith Whittington graciously added to his post. I briefly explained how Alan Dershowitz went far, far beyond my position on mixed motives.
There is a simple, but important distinction between me and Dershowitz. In my view, an action taken with mixed motives–both personal political advantage and for promoting the general welfare–should not be considered an abuse of power. For Dershowitz, an action taken solely based on advancing personal political advantage cannot be an abuse of power, precisely because promoting personal politics is in the national interest.
Given the current schedule, the trial will likely draw to a close on Wednesday.
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Over half a million Americans are currently homeless.
After a period of progress and decline,Statista’s Niall McCarthy notes thatthe U.S. homeless population has increased slightly by three percent according to a report from the Department of Housing and Urban Development. It now stands at 567,715 with 63 percent of that total living in sheltered accommodation. The national increase is primarily due to a leap in homelessness in California where it grew 16.4 percent between 2018 and 2019.
More than half of all unsheltered homeless people in the U.S. – some 53 percent – are in California. That’s nearly nine times as many as the state with the second-highest total of unsheltered homeless which is Florida.
Homelessness is primarily an urban issue and more than half of the homeless population is scattered across the country’s 50 biggest cities. Nearly a quarter of them live in just two cities – New York and Los Angeles. Despite its considerable homeless population, New York can at least claim that the vast majority of its rough sleepers are given sheltered accommodation with only 4.4 percent estimated to be living on the streets. The same cannot be said of the state of California where 71.7 percent of all homeless people are unsheltered.
The infographic below also shows the top-10 worst cities for homelessness across the U.S. with New York in first place with 78,604.
It’s important to mention that in this comparison, the data is broken down by CoC – those are Continuums of Care that are local planning bodies coordinating responses to the issue.
Los Angeles is in second place with over 56,000 while Seattle/King County comes third with 11,199.
A persistent American lawyer has uncovered the undeniable fact that the FBI has been continuously lying, including giving false testimony in court, in response to Freedom of Information requests for its records on Seth Rich. The FBI has previously given affidavits that it has no records regarding Seth Rich.
A Freedom of Information request to the FBI which did not mention Seth Rich, but asked for all email correspondence between FBI Head of Counterterrorism Peter Strzok, who headed the investigation into the DNC leaks and Wikileaks, and FBI attorney Lisa Page, has revealed two pages of emails which do not merely mention Seth Rich but have “Seth Rich” as their heading. The emails were provided in, to say the least, heavily redacted form.
Before I analyse these particular emails, I should make plain that they are not the major point. The major point is that the FBI claimed it had no records mentioning Seth Rich, and these have come to light in response to a different FOIA request that was not about him. What other falsely denied documents does the FBI hold about Rich, that were not fortuitously picked up by a search for correspondence between two named individuals?
To look at the documents themselves, they have to be read from the bottom up, and they consist of a series of emails between members of the Washington Field Office of the FBI (WF in the telegrams) into which Strzok was copied in, and which he ultimately forwarded on to the lawyer Lisa Page.
The opening email, at the bottom, dated 10 August 2016 at 10.32am, precisely just one month after the murder of Seth Rich, is from the media handling department of the Washington Field Office. It references Wikileaks’ offer of a reward for information on the murder of Seth Rich, and that Assange seemed to imply Rich was the source of the DNC leaks. The media handlers are asking the operations side of the FBI field office for any information on the case. The unredacted part of the reply fits with the official narrative. The redacted individual officer is “not aware of any specific involvement” by the FBI in the Seth Rich case. But his next sentence is completely redacted. Why?
It appears that “adding” references a new person added in to the list. This appears to have not worked, and probably the same person (precisely same length of deleted name) then tries again, with “adding … for real” and blames the technology – “stupid Samsung”. The interesting point here is that the person added appears not to be in the FBI – a new redacted addressee does indeed appear, and unlike all the others does not have an FBI suffix after their deleted email address. So who are they?
(This section on “adding” was updated after commenters offered a better explanation than my original one. See first comments below).
The fourth email, at 1pm on Wednesday August 10, 2016, is much the most interesting. It is ostensibly also from the Washington Field Office, but it is from somebody using a different classified email system with a very different time and date format than the others. It is apparently from somebody more senior, as the reply to it is “will do”. And every single word of this instruction has been blanked. The final email, saying that “I squashed this with …..”, is from a new person again, with the shortest name. That phrase may only have meant I denied this to a journalist, or it may have been reporting an operational command given.
As the final act in this drama, Strzok then sent the whole thread on to the lawyer, which is why we now have it. Why?
It is perfectly possible to fill in the blanks with a conversation that completely fits the official narrative. The deletions could say this was a waste of time and the FBI was not looking at the Rich case. But in that case, the FBI would have been delighted to publish it unredacted. (The small numbers in the right hand margins supposedly detail the exception to the FOIA under which deletion was made. In almost every case they are one or other category of invasion of privacy).
And if it just all said “Assange is talking nonsense. Seth Rich is nothing to do with the FBI” then why would that have to be sent on by Strzok to the FBI lawyer?
It is of course fortunate that Strzok did forward this one email thread on to the lawyer, because that is the only reason we have seen it, as a result of an FOI(A) request for the correspondence between those two.
Finally, and perhaps this is the most important point, the FBI was at this time supposed to be in the early stages of an investigation into how the DNC emails were leaked to Wikileaks. The FBI here believed Wikileaks to be indicating the material had been leaked by Seth Rich who had then been murdered. Surely in any legitimate investigation, the investigators would have been absolutely compelled to check out the truth of this possibility, rather than treat it as a media issue?
We are asked to believe that not one of these emails says “well if the publisher of the emails says Seth Rich was the source, we had better check that out, especially as he was murdered with no sign of a suspect”. If the FBI really did not look at that, why on earth not? If the FBI genuinely, as they claim, did not even look at the murder of Seth Rich, that would surely be the most damning fact of all and reveal their “investigation” was entirely agenda driven from the start.
In June 2016 a vast cache of the DNC emails were leaked to Wikileaks. On 10 July 2016 an employee from the location of the leak was murdered without obvious motive, in an alleged street robbery in which nothing at all was stolen. Not to investigate the possibility of a link between the two incidents would be grossly negligent. It is worth adding that, contrary to a propaganda barrage, Bloomingdale where Rich was murdered is a very pleasant area of Washington DC and by no means a murder hotspot. It is also worth noting that not only is there no suspect in Seth Rich’s murder, there has never been any semblance of a serious effort to find the killer. Washington police appear perfectly happy simply to write this case off.
I anticipate two responses to this article in terms of irrelevant and illogical whataboutery:
Firstly, it is very often the case that family members are extremely resistant to the notion that the murder of a relative may have wider political implications. This is perfectly natural. The appalling grief of losing a loved one to murder is extraordinary; to reject the cognitive dissonance of having your political worldview shattered at the same time is very natural. In the case of David Kelly, of Seth Rich, and of Wille Macrae, we see families reacting with emotional hostility to the notion that the death raises wider questions. Occasionally the motive may be still more mixed, with the prior relationship between the family and the deceased subject to other strains (I am not referencing the Rich case here).
You do occasionally get particularly stout hearted family who take the opposite tack and are prepared to take on the authorities in the search for justice, of which Commander Robert Green, son of Hilda Murrell, is a worthy example.
(As an interesting aside, I just checked his name in the Wikipedia article on Hilda, which I discovered describes Tam Dalyell “hounding” Margaret Thatcher over the Belgrano and the fact that ship was steaming away from the Falklands when destroyed with massive loss of life as a “second conspiracy theory”, the first of course being the murder of Hilda Murrell. Wikipedia really has become a cesspool.)
We have powerful cultural taboos that reinforce the notion that if the family do not want the question of the death of their loved one disturbed, nobody else should bring it up. Seth Rich’s parents, David Kelly’s wife, Willie Macrae’s brother have all been deployed by the media and the powers behind them to this effect, among many other examples. This is an emotionally powerful but logically weak method of restricting enquiry.
Secondly, I do not know and I deliberately have not inquired what are the views on other subjects of either Mr Ty Clevenger, who brought his evidence and blog to my attention, or Judicial Watch, who made the FOIA request that revealed these documents. I am interested in the evidence presented both that the FBI lied, and in the documents themselves. Those who obtained the documents may, for all I know, be dedicated otter baiters or believe in stealing ice cream from children. I am referencing the evidence they have obtained in this particular case, not endorsing – or condemning – anything else in their lives or work. I really have had enough of illogical detraction by association as a way of avoiding logical argument by an absurd extension of ad hominem argument to third parties.
* * *
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India Rejects That It Spent Years Pumping Fake GDP Data
Just as the Indian economy expanded at a much slower pace in 2019, and electricity consumption in the country over the year plunged, there’s new criticism that Indian officials have been publishing phony economic statics to boost growth numbers.
Overinflated GDP data started to print when the country shifted to a 2011-12 base year on Jan. 30, 2015,Bloomberg noted.
However, Finance Minister Nirmala Sitharaman told Parliament on Friday that there was no “misestimation of growth” after the country overhauled the data.
“Correctly specified models that account for all unobserved differences among countries, as well as differential trends in GDP growth across countries, fail to find any misestimation of growth in India or other countries,” Sitharaman said.
“Concerns of a misestimated Indian GDP are unsubstantiated by the data and are thus unfounded.”
Harvard’s Center for International Development Arvind Subramanian argues that the overhaul overstated GDP figures by at least two percentage points from 2012 to 2017.
Fifty-one countries have also had over-estimated GDP growth since 2011, said Subramanian. Several advanced economies, including the U.K., Germany, and Singapore, have also been found to overestimate economic growth.
Prime Minister Narendra Modi rode the wave of fake GDP data from 2014 through 2017, but growth started to turn down by 2018; he has since been heavily criticized for a slumping economy.
GDP controversy has become a national topic in Indian newspapers, which is a big blow to Modi, who has promised to “Make India Great Again” with a $5 trillion economy.
“People have raised issues about the dodginess of the Indian numbers, and that is a real problem,” said Steve Hanke, a professor of applied economics at Johns Hopkins University. “Once you lose confidence in the statistical services, it creates a lot of uncertainty in the markets. From the investor’s point of view, it raises a red flag.”
It has largely gone unnoticed thanks to the impeachment news. But, on Wednesday, a closely divided US Court of Appeals for the Firth Circuit voted against en banc review of the December panel decision in the Obamacare severability case. The court voted against en banc reconsideration by a closely divided 8-6 margin. The official order is here. Had the vote gone the other way, the case would have been reconsidered by the full Fifth Circuit.
The case involves a lawsuit filed by twenty Republican “red” state governments arguing that the Obamacare individual health insurance mandate (which requires most Americans to buy government-approved health insurance) is now unconstitutional because the December 2017 tax reform law enacted by the then-GOP controlled Congress zeroed out the monetary fine imposed on violators, thereby making it impossible for the mandate to be considered a tax any longer (the theory that it could be so considered was the only basis on which the Supreme Court upheld the mandate in NFIB v. Sebelius (2012)). More controversially—and with much greater practical significance—the plaintiff states argue that the rest of the Affordable Care Act must fall along with the now-largely neutered mandate, because the remainder of the Act cannot be “severed” from the unconstitutional part.
To me, it makes no sense to conclude that a largely-toothless mandate is so essential to the overall structure of Obamacare that Congress could not have intended the broader law to continue functioning without it. Along with a cross-ideological group of other legal scholars, co-blogger Jonathan Adler and I developed this argument in greater detail in two amicus briefs we have filed in this case (see here and here).
This position is not driven by any great love for Obamacare. I authored an amicus brief against the Obamacare individual mandate in the initial 2011-12 challenge to its constitutionality, and also wrote a coauthored book and variousarticles arguing that it and some other parts of the law are unconstitutional. I would be more than happy to see the ACA repealed.
The Fifth Circuit’s decision to deny en banc consideration is not all that surprising. Neither the majority nor the dissenting judges provided any explanation for their votes (which is not unusual in such cases). But it would be unusual to take a case en banc when the three-judge panel has not even conclusively resolved the biggest issue involved (in this case, severability).
Still, the close division suggests something more may be going on. It’s possible the judges differ because some believe it is important to provide a quick resolution to this case (thereby eliminating uncertainty about the future of the ACA), while others are more inclined to follow normal procedures. Obviously, those supporting en banc rehearing may also take a dimmer view of the substance of the panel decision than those opposing it.
It is also notable that all eight judges voting against en banc review were Republican appointees. By contrast, five of the six judges voting in favor were appointed by Democratic presidents.
The one GOP-appointed judge who voted for en banc review was Judge Jerry Smith, who was appointed by Ronald Reagan. It so happens, I clerked for Judge Smith in 2001-02. But, in case, any members of the media happen to read this post, I hasten to add that I have not discussed this case with Judge Smith (it would have been inappropriate to do so), nor do I have any inside information on why he voted the way he did. I do not even know whether he has read any of my writings about the case, and—if so—whether he agrees with anything I said.
Thus, I cannot say whether Judge Smith supported en banc review because he 1) differs with the panel majority on the constitutionality of the mandate, 2) differs on severability, 3) just thinks it important to resolve the case as fast as possible, or 4) some combination of more than one of these reasons. It’s even possible it could be some reason I have not thought of. If I had to guess, I would say that scenarios 2 and 3 (or some combination thereof) are probably more likely than 1.
The views of the Fifth Circuit judges who voted on the en banc issue could turn out to be important when this case returns to the appellate level, which could easily happen later this year. At that time, there may again be attempts to force en banc review of whatever decision the panel makes.
In the meantime, a group of blue states that have intervened to defend the ACA when the Trump administration declined to do so, are trying to get the Supreme Court to take the case as soon as possible, without waiting for further lower court decisions. But that effort has not fared well so far, and it is unlikely the Court will consider the case before the end of the year. The blue states clearly want a quick Supreme Court decision on the case, and they sought to go directly to the Supreme Court. The attempt to initiate en banc review was at the behest of one of the Fifth Circuit’s own judges, not any of the parties to the case.
For the moment, it looks like the wheels of justice will keep grinding in this case for some time to come. But it is entirely possible we will have additional rulings before the November election, so the issue may not be out of the public eye for long.
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It has largely gone unnoticed thanks to the impeachment news. But, on Wednesday, a closely divided US Court of Appeals for the Firth Circuit voted against en banc review of the December panel decision in the Obamacare severability case. The court voted against en banc reconsideration by a closely divided 8-6 margin. The official order is here. Had the vote gone the other way, the case would have been reconsidered by the full Fifth Circuit.
The case involves a lawsuit filed by twenty Republican “red” state governments arguing that the Obamacare individual health insurance mandate (which requires most Americans to buy government-approved health insurance) is now unconstitutional because the December 2017 tax reform law enacted by the then-GOP controlled Congress zeroed out the monetary fine imposed on violators, thereby making it impossible for the mandate to be considered a tax any longer (the theory that it could be so considered was the only basis on which the Supreme Court upheld the mandate in NFIB v. Sebelius (2012)). More controversially—and with much greater practical significance—the plaintiff states argue that the rest of the Affordable Care Act must fall along with the now-largely neutered mandate, because the remainder of the Act cannot be “severed” from the unconstitutional part.
To me, it makes no sense to conclude that a largely-toothless mandate is so essential to the overall structure of Obamacare that Congress could not have intended the broader law to continue functioning without it. Along with a cross-ideological group of other legal scholars, co-blogger Jonathan Adler and I developed this argument in greater detail in two amicus briefs we have filed in this case (see here and here).
This position is not driven by any great love for Obamacare. I authored an amicus brief against the Obamacare individual mandate in the initial 2011-12 challenge to its constitutionality, and also wrote a coauthored book and variousarticles arguing that it and some other parts of the law are unconstitutional. I would be more than happy to see the ACA repealed.
The Fifth Circuit’s decision to deny en banc consideration is not all that surprising. Neither the majority nor the dissenting judges provided any explanation for their votes (which is not unusual in such cases). But it would be unusual to take a case en banc when the three-judge panel has not even conclusively resolved the biggest issue involved (in this case, severability).
Still, the close division suggests something more may be going on. It’s possible the judges differ because some believe it is important to provide a quick resolution to this case (thereby eliminating uncertainty about the future of the ACA), while others are more inclined to follow normal procedures. Obviously, those supporting en banc rehearing may also take a dimmer view of the substance of the panel decision than those opposing it.
It is also notable that all eight judges voting against en banc review were Republican appointees. By contrast, five of the six judges voting in favor were appointed by Democratic presidents.
The one GOP-appointed judge who voted for en banc review was Judge Jerry Smith, who was appointed by Ronald Reagan. It so happens, I clerked for Judge Smith in 2001-02. But, in case, any members of the media happen to read this post, I hasten to add that I have not discussed this case with Judge Smith (it would have been inappropriate to do so), nor do I have any inside information on why he voted the way he did. I do not even know whether he has read any of my writings about the case, and—if so—whether he agrees with anything I said.
Thus, I cannot say whether Judge Smith supported en banc review because he 1) differs with the panel majority on the constitutionality of the mandate, 2) differs on severability, 3) just thinks it important to resolve the case as fast as possible, or 4) some combination of more than one of these reasons. It’s even possible it could be some reason I have not thought of. If I had to guess, I would say that scenarios 2 and 3 (or some combination thereof) are probably more likely than 1.
The views of the Fifth Circuit judges who voted on the en banc issue could turn out to be important when this case returns to the appellate level, which could easily happen later this year. At that time, there may again be attempts to force en banc review of whatever decision the panel makes.
In the meantime, a group of blue states that have intervened to defend the ACA when the Trump administration declined to do so, are trying to get the Supreme Court to take the case as soon as possible, without waiting for further lower court decisions. But that effort has not fared well so far, and it is unlikely the Court will consider the case before the end of the year. The blue states clearly want a quick Supreme Court decision on the case, and they sought to go directly to the Supreme Court. The attempt to initiate en banc review was at the behest of one of the Fifth Circuit’s own judges, not any of the parties to the case.
For the moment, it looks like the wheels of justice will keep grinding in this case for some time to come. But it is entirely possible we will have additional rulings before the November election, so the issue may not be out of the public eye for long.
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Chinese President Xi Jinping is leading a scientific ‘People’s War’ against the coronavirus…
President Xi Jinping formally told WHO head Tedros Ghebreyesus, at their meeting in Beijing earlier this week, that the coronavirus epidemic “is a devil and we cannot allow the devil to hide.”
Ghebreyesus for his part could not but praise Beijing for its extremely swift, coordinated response strategy – which includes fast identification of the genome sequence. Chinese scientists have already handed over to Russian counterparts the virus genome, with snap tests able to identify it in a human body within two hours. A Russia-China vaccine is under development.
The devil, of course, is always in the details. In a matter of a few days, at the peak of the most congested travel period of the year, China did manage to quarantine an urban environment of over 56 million people, including megalopolis Wuhan and three nearby cities. This is an absolute first in terms of public health, anytime in history.
Wuhan, with a GDP growth of 8.5% a year, is a significant business center for China. It lies at the strategic crossroads of the Yangtze and Han rivers and at a railway crossroads as well – between the north-south axis linking Guangzhou to Beijing and the east-west axis linking Shanghai to Chengdu.
As premier Li Keqiang was sent to Wuhan, President Xi visited the strategic southern province of Yunnan, where he extolled the immense government apparatus to boost control and sanitary prevention mechanisms to limit propagation of the virus.
Coronavirus catches China at an extremely sensitive juncture – after the (failed) Hybrid War tactics displayed in Hong Kong; an American pro-Taiwan offensive; the trade war far from solved by a mere “phase 1” deal while more sanctions are being plotted against Huawei; and even the assassination of Maj. Gen. Qasem Soleimani, which ultimately is about targeting the expansion of the Belt and Road Initiative (BRI) in Southwest Asia (Iran-Iraq-Syria).
The Big Picture spells out Total Information War and non-stop weaponization of the China “threat” – now even metastasized, with racist overtones, as a bio-threat. So how vulnerable is China?
A people’s war
For almost five years now a maximum-security biolab has been operating in Wuhan dedicated to the study of highly pathogenic micro-organisms – set up in partnership with France after the SARS epidemic. In 2017, Nature magazine was warning about the risks of dispersion of pathogenic agents out of this lab. Yet there’s no evidence this might have happened.
In crisis management terms, President Xi has lived up to the occasion – ensuring that China fights coronavirus with nearly total transparency (after all, the internet wall remains in place). Beijing has warned the whole government apparatus in no uncertain terms not to attempt any cover-ups. A real-time webpage, in English, here, is available to everyone. Whoever is not doing enough will face serious consequences. One can imagine what awaits the party chief in Hubei, Jiang Chaoliang.
A post that went viral all over the mainland this past Sunday states, “We in Wuhan have truly entered the stage of people’s war against the new viral pneumonia”; and many people, “mainly Communist Party members” have been confirmed as “volunteers and observers according to street units.”
Crucially, the government directed everyone to install a “Wuhan Neighbors” applet downloaded from WeChat. That determines “our home’s quarantine address through satellite positioning, and then lock on our affiliated community organization and volunteers. Thenceforth, our social activities and information announcements would be connected to the system.”
Theoretically, this means that “anyone who develops a fever will report their condition through the network as soon as possible. The system will immediately provide an online diagnosis, and locate and register your quarantine address. If you need to see a doctor, your community will arrange a car to send you to the hospital through volunteers. At the same time, the system will track your progress: hospitalization, treatment at home, discharge, death, etc.”
So here we have millions of Chinese citizens totally mobilized in what’s routinely described as a “people’s war” using “high technology to fight against illness.”Millions are also drawing their own conclusions when comparing it with the use of app software to fight against the police in Hong Kong.
The biogenetic puzzle
Apart from crisis management, the speed of the Chinese scientific response has been breathtaking – and obviously not fully appreciated in an environment of Total Information War. Compare the Chinese performance with the American CDC, arguably the top infectious disease research agency in the world, with an $11 billion annual budget and 11,000 employees.
During the Ebola epidemic in West Africa in 2014 – considered a maximum urgency, and facing a virus with a 90% fatality rate – the CDC took no less than two months from getting the first patient sample to identifying the complete genomic sequence. The Chinese did it in a few days.
During the swine flu in the US in 2009 – 55 million infected Americans, 11,000 killed – the CDC took over a month and a half to come up with identification kits.
The Chinese took only one week from the first patient sample to complete, vital identification and sequencing of coronavirus. Right away, they went for publication and deposit in the genomics library for immediate access by the whole planet. Based on this sequence, Chinese biotech companies produced validated essays within a week – also a first.
And we’re not even talking about the now notorious building of a brand new state of the art hospital in Wuhan in record time just to treat victims of coronavirus. No victims will pay for their treatment. Additionally, Healthy China 2030, the reform of the health/development system, will be boosted.
Coronavirus opens a true Pandora’s box on biogenetics. Serious questions remain about experiences in vivo in which the consent of “patients” will not be required – considering the collective psychosis initially developed by Western corporate media and even the WHO around coronavirus. Coronavirus could well become a pretext for genetic experiments via vaccines.
Meanwhile, it’s always enlightening to remember Great Helmsman Mao Zedong. For Mao, the top two political variables were “independence” and “development.” That implies full sovereignty. As Xi seems determined to prove a sovereign civilization-state is able to win a scientific “people’s war,” that does not exactly spell out “vulnerability.”
China’s Crackdown On Pajama-Wearers Sparks Surveillance-State Backlash
Avid Zero Hedge readers are probably aware that the Communist Party leadership has managed to construct a surveillance apparatus in the country’s largest cities that tracks its citizens with panoptic precision. Spit your gum out on the sidewalk in Beijing, and your ‘social credit score’ – a government ‘rating’ that quantifies your obedience to laws and social customs – might take a hit.
While this system is also used for more nefarious purposes – minority Muslims in the far Western state of Xinjiang have been placed under constant surveillance as President Xi and the Party work to undermine adherence to Islam and mold the ethnic Uyghurs into obedient Communists – Beijing also uses it for more mundane purposes, like catching thieves who steal toilet paper from public restrooms.
But recently, the government triggered a rare backlash against the Chinese security state – a terrifying glimpse of how governments might leverage digital control to keep their people docile – when officials in a city in Eastern China launched a campaign to end “uncivilized behavior.”
As the New York Times tells it, this campaign was basically Rudy Giuliani’s ‘broken windows’ strategy on steroids.. And on Monday, the urban management department of Suzhou, the Chinese city of six million in Anhui Province, started the controversy by publishing photos taken by street cameras of seven young residents wearing pajamas in public.
Along with the photos, police published the names of the offenders, government ID numbers and locations where the “uncivilized behavior” took place. But residents responded that the young residents were simply being kids, and many criticized the police for their overzealousness.
According to the NYT, the backlash was a rare moment of resistance from a population that has seemingly accepted their totalitarian rulers.
Earlier, a government post on WeChat laid out the reasoning for shaming the pajama-wearers.
“Uncivilized behavior refers to when people behave and act in ways that violate public order because they lack public morals,” read a post on WeChat, a common social messaging app, which has since been deleted.
“Many people think that this is a small problem and not a big deal,” the post said. “Others believe public places are truly ‘public,’ where there is no blame, no supervision and no public pressure.”
“This has brought about a kind of complacent, undisciplined mind set,” it concluded.
While the use of facial recognition technology in security cameras remains taboo around the world, in China, it’s widely accepted. Powerful software allows the state security panopticon to quickly match offenders with their identities.
Some users of Chinese social media warned that the technology should be used cautiously.
“Facial recognition technology should be used with caution,” a user named Xiu Li De Xiao Wo wrote on Sina Weibo, a popular microblogging platform. “They should really be restricting access.”
The Suzhou ban on pajamas in public isn’t the first time Chinese authorities tried to crack down on unacceptable dress codes. Police have also cracked down on the “Beijing bikini,” a look where men roll up their shirts and bare their belly during the hot summer months.
While the debate over facial recognition tech can be light-hearted at times, reports about advances in video-tracking technology have raised fears about the government or private companies engaging in this level of extreme monitoring in the US. Last weekend, the New York Times published a blockbuster story about ClearView, a company that had invented a facial-recognition technology on par with anything used in China.
Then again, with such advanced surveillance tech at their disposal, we’re certain the Chinese authorities would have no problem identifying the source of the coronavirus outbreak, not to mention tracking all of those who might have been exposed. Though if this were true, how come so many infected victims were allowed to leave the country?
