The Roberts Court Slowly Inters Justice Kennedy’s Ephemeral “Jurisprudence of Doubt”

Two years ago, Justice Kennedy announced that he would retire from the Supreme Court. One of my earliest thoughts was, “I will never have to edit another Kennedy opinion for the casebook!” My follow-up thought was, “How long will I have to keep the Kennedy opinions in the casebook, once they are overruled or whittled away.” The whittling away has already begun. The Roberts Court is slowly, but surely interring Justice Kennedy’s ephemeral “jurisprudence of doubt.” Blue June has already buried at least three precedents with Justice Kennedy in the majority: Boumediene v. BushWhole Woman’s Health, and Footnote 3 of Trinity Lutheran.

Boumediene v. Bush

Boumediene suffered two major blows during Blue June. The first hit came in DHS v. Thuraissigiam (see here and here). Justice Alito’s majority required a very precise fit between history and the Petitioner’s claim.

Despite pages of rhetoric, the dissent is unable to cite a single pre-1789 habeas case in which a court ordered relief that was anything like what respondent seeks here.

Justice Kennedy’s 2008 majority opinion relied on history in a very fluid fashion. In dissent, Justice Sotomayor wrote that Boumediene “never demanded the kind of precise factual match with pre-1789 case law that today’s Court demands.” She’s right.

As I read Thuraissigiam, the Court has closed the door to any future expansion of the Suspension Clause jurisprudence, unless there is a close analogue to historical practice in 1789. Indeed, Mike Dorf finds an even greater limitation:

In both St. Cyr and Boumediene v. Bush, the Supreme Court said that the Suspension Clause protects a right to habeas that is “at the absolute minimum” as expansive as the scope of habeas in 1789, leaving open the possibility of further expansion. Justice Alito’s opinion (1) finds that the scope in 1789 does not benefit Thuraissigiam and (2) does not go beyond that minimum.

The Court has now rejected any possible “evolving” notion of habeas. The Great Writ is solidified in amber.

Boumediene took another hit in a sleeper case of the term, Agency for Int’l Development v. Alliance for Open Society. Justice Kavanaugh’s nine-page decision resolved a really important constitutional question with very little fanfare. He wrote:

First, it is long settled as a matter of American constitutional law that foreign citizens outside U. S. territory do not possess rights under the U. S. Constitution. Plaintiffs do not dispute that fundamental principle. Tr. of Oral Arg. 58–59; see, e.g., Boumediene v. Bush, 553 U. S. 723, 770– 771 (2008); Hamdi v. Rumsfeld, 542 U. S. 507, 558–559 (2004) (Scalia, J., dissenting); United States v. Verdugo-Urquidez, 494 U. S. 259, 265–275 (1990); Johnson v. Eisentrager, 339 U. S. 763, 784 (1950); United States ex rel. Turner v. Williams, 194 U. S. 279, 292 (1904); U. S. Const., Preamble.

Justice Kavanaugh posed this precise question during oral argument:

JUSTICE KAVANAUGH:  Good morning, counsel. I want to clarify, first, one thing from your colloquy with Justice Ginsburg. You agree, I assume, that unaffiliated foreign entities acting abroad have no constitutional rights under this Court’s precedents.

MR. BOWKER: We do, Your Honor.

This concession was unwise. And I also think it was wrong.

Justice Breyer’s dissent explains the Court has never actually reached this sweeping conclusion.

Even taken on its own terms, the majority’s blanket assertion about the extraterritorial reach of our Constitution does not reflect the current state of the law. The idea that foreign citizens abroad never have constitutional rights is not a “bedrock” legal principle. At most, one might say that they are unlikely to enjoy very often extraterritorial protection under the Constitution. Or one might say that the matter is undecided. But this Court has studiously avoided establishing an absolute rule that forecloses that protection in all circumstances.

Breyer explains that Boumediene, which Kavanaugh cited, rejects such a categorical rule.

Nor do the cases that the majority cites support an absolute rule. See ante, at 3. The exhaustive review of our precedents that we conducted in Boumediene v. Bush (2008), pointed to the opposite conclusion. In Boumediene, we rejected the Government’s argument that our decision in Johnson v. Eisentrager, (1950),”adopted a formalistic” test “for determining the reach” of constitutional protection to foreign citizens on foreign soil. This is to say, we rejected the position that the majority propounds today. Its “constricted reading” of Eisentrager and our other precedents is not the law. See Boumediene, 553 U. S., at 764.

The law, we confirmed in Boumediene, is that constitutional “questions of extraterritoriality turn on objective factors and practical concerns” present in a given case, “not formalism” of the sort the majority invokes today.

Well, with AMK in the middle, Boumediene rejected “formalism.” But now “formalism” is the law with JGR in the middle. And five votes endorse Justice Jackson’s observation from Eisenstrager.

Boumediene is basically a dead letter. Never overruled, but currently interred.

Whole Woman’s Health v. Hellerstedt

Whole Woman’s Health was decided in June 2016, shortly after Justice Scalia passed away. The vote was 5-3. Justice Breyer’s majority opinion expanded upon the framework from Planned Parenthood v. Casey: courts should balance two factors: (1) whether the law imposed an “undue burden” on abortion access and (2) whether the law provides an actual benefits. Of course, Justice Kennedy assigned that majority opinion to Justice Breyer. And Kennedy no doubt realized that Breyer was departing from Casey. But 2016 was a bizarre year. Justice Kennedy also reversed his own opinion on affirmative action from Fisher I to Fisher II, that conflicted with his vote in the Michigan affirmative action cases. In any event, 2016 was so four years ago.

In June Medical, Chief Justice Roberts vote to uphold the Louisiana abortion law–and only the Louisiana abortion law. His concurrence casts serious doubt on Whole Woman’s Health. Indeed, he seems to suggest that WWH departed from Casey. Yesterday, I noted:

Going forward, there are five votes to limit the Court’s abortion framework to consider a a law’s burdens, without weighing the law’s benefits.  The Chief has effectively overruled Whole Woman’s Health to the extent it departs from Casey. The Chief didn’t swing to the left; at most, he feinted left for this Blue June.

For reasons unknown, Roberts considers the Casey plurality (three votes) a valid precedent, but the WWH majority (five votes) is not a valid precedent. In any event, Justice Kennedy’s 2017 vote on abortion will be interred. But his 1992 vote on abortion is now, apparently, settled law. Go figure.

Trinity Lutheran v. Comer—Footnote 3

The vote in Trinity Lutheran was deceiving. On its face, the Court split by a 7-2 vote. But the majority was fractured. Justice Breyer only concurred in judgment. Chief Justice Roberts, and Justice Kennedy, Alito, and Kagan joined the majority opinion in full. And Justices Thomas and Gorusch joined the majority opinion, except for Footnote 3. Footnote 3 stated:

This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.

In other words, Trinity Lutheran only concerned a case in which the state denies funding to the church because of its status as a house of worship. The case did not involve a denial of funding to the church because it would use money for “religious uses.” For example, instead of using funds to purchase tire scraps for the playground, the church could purchase funds to purchase books for religious instruction.

In a partial concurrence, Justice Gorsuch, joined by Justice Thomas, wrote that this distinction is flimsy.

First, the Court leaves open the possibility a useful distinction might be drawn between laws that discriminate on the basis of religious status and religious use. Respectfully, I harbor doubts about the stability of such a line.

In any event, the bulk of Trinity Lutheran was precedent, but Footnote 3 was not; it only garnered four votes. And could be disregarded just as quickly. Fast-forward to today, with Espinoza. Chief Justice Roberts wrote a majority opinion that was joined in full.

The Chief flagged the status/use distinction from Trinity Lutheran:

Some Members of the Court, moreover, have questioned whether there is a meaningful distinction between discrimination based on use or conduct and that based on status. See Trinity Lutheran, (GORSUCH, J., joined by THOMAS, J., concurring in part). We acknowledge the point but need not examine it here. It is enough in this case to conclude that strict scrutiny applies under Trinity Lutheran because Montana’s no-aid provision discriminates based on religious status.

Later, Roberts suggested that he was not tied to Footnote 3.

A plurality declined to address discrimination with respect to “religious uses of funding or other forms of discrimination.” Trinity Lutheran at n. 3. The plurality saw no need to consider such concerns because Missouri had expressly discriminated “based on religious identity,” which was enough to invalidate the state policy without addressing how government funds were used.

The key word is “plurality.” Not a majority. It seems that the Chief added Footnote 3 in Trinity Lutheran to assuage Justices Kagan and/or Kennedy. For the Chief, FN 3 was just another move in a game of 87-dimensional chess. He sacrificed a pawn to set up the Espinoza checkmate. Now, three years later, he no longer needs Justice Kennedy’s vote, and will not need to secure Justice Kagan’s on this case.

Trinity, and now Espinoza, also move away from the Rehnquist-Court era decision, Locke v. Davey. Michael Moreland observes that “Chief Justice Rehnquist wrote a narrow, almost case-specific holding (a characteristic Rehnquistian move)” in that case.

Justice Breyer seems miffed that the Court has abandoned the “play in the joints” line from Locke:

Although the majority refers in passing to the “play in the joints” between that which the Establishment Clause forbids and that which the Free Exercise Clause requires, its holding leaves that doctrine a shadow of its former self.

He’s right. There is no longer any need to appease Anthony Kennedy or Sandra Day O’Connor.

Going forward, I presumptively treat any 5-4 decision with Kennedy in the majority as persuasive, at best.

from Latest – Reason.com https://ift.tt/31wsitf
via IFTTT

UCLA Academic Freedom Committee Statement Related to the Gordon Klein Controversy

Just posted by the UCLA Academic Senate Committee on Academic Freedom, about the controversy discussed here on June 10:

Statement of the Academic Freedom Committee

June 30, 2020

In response to a recent controversy surrounding an e-mail reply to a student by Gordon Klein (a Lecturer in Accounting at the Anderson School), the UCLA Senate Committee on Academic Freedom underlines all instructors’ freedom (protected by APM-010) to express their views on grading policy as they determine to be appropriate.

Some people may well disagree with Prof. Klein’s views, and think that he should have responded differently to a student’s request that the grading structure be changed to “exercise compassion and leniency with Black students in our major.” But instructors are entitled and empowered to say “no” to such requests;[1] and, just as students have every right to express their views on such matters to faculty and to others, instructors are entitled to explain their views in turn to students. When any of us ask people to do things, especially based on a moral or political argument about current events, those people are entitled to respond with their own moral or political views.

The process of evaluating the situation is proceeding at the Anderson School, and our committee has no direct role in that process. Our concern instead is that any public announcement that an instructor is being placed on administrative leave for what appears to be a particular statement—whether the statement happened in class, in an e-mail responding to a student, on social media, or wherever else—creates a chilling effect for other instructors, especially untenured ones. It is the committee’s role to try to prevent such chilling effects.

An academic institution like UCLA must remain a place for the expression of a wide diversity of views and interpretations. It should also be a site of vigorous debate—including by students, by faculty, and by others—so that those exposed to or participating in these discussions have the opportunity to hear a range of opinions as they formulate their own views.

[1] See, e.g., Academic Senate Memo on Spring 2020 Final Exams, which reaffirms that instructors have “the flexibility to change their method of final assessments” so long as the final grade “reflect[s] the student’s achievement in the course” and is “based upon adequate evaluation of the achievement,” but does not require instructors to make any particular changes.

Disclosure: I am one of the several members of the Committee.

from Latest – Reason.com https://ift.tt/3eQSPoY
via IFTTT

The Problem With Government “Contact Tracing”

The Problem With Government “Contact Tracing”

Tyler Durden

Tue, 06/30/2020 – 19:25

Authored by James Ketler via The Mises Institute,

As states move through phases of reopening, “contact tracing” has remained a topic of national interest. For months now, talking heads in the government and media have hailed the strategy as the country’s saving grace. One NBC headline read, “Coronavirus contact tracing could stop COVID-19 and reopen America,” and a CNN article declared, “the US — or really any country — can’t safely reopen without significant amounts of contact tracing and testing”.

With this starry-eyed perception, dozens of states have rushed to train and hire tens of thousands of contact tracers – what former CDC director Tom Frieden gleefully described as an “army” of tracers. 

It’s true that contact tracing has been an indispensable asset many times in the past – helping to snuff out viruses by diligently tracking their spread. So it’s no mystery why some health experts are flocking to it in the current crisis. 

In short, this is how it works: contact tracers conduct short, over-the-phone interviews of newly-diagnosed patients about who they have recently been in close, physical contact with. The fear is that these recent contacts could have contracted the virus from the patient before he was diagnosed. These contacts are then phoned by tracers, informing them of this risk and encouraging them to seek testing and self-quarantine immediately. Tracers continue this process on down the line, with the aim of reducing the instances where the virus is transmitted

A few states have also begun developing smartphone apps to conduct a digital form of contact tracing. Phones running the app exchange unique, encrypted numbers via Bluetooth, which are then stored on their devices. If an app user is diagnosed with COVID, he’s supposed to notify the app, which then publishes the log of numbers his phone received in the last fourteen days. If one of these numbers matches one stored on the device of another user, the app will send that user an alert that he’d been in recent contact with a newly-diagnosed COVID patient. 

So far, the adoption of these apps has been left completely voluntary in the US, unlike other countries like China and South Korea. Overall, though, most of the states have yet to show much excitement towards digital tracing. The main focus remains on building an “army” to track the virus’ spread, no matter what it might cost the country.

Financial Costs

Contact tracing job positions are temporary—lasting for months or up to a year, with annual salaries ranging from $40,000 to $70,000. Those numbers are about on-par with the entry-level salaries of registered nurses, for a job that anyone completing a free, six-hour course can be hired for. Few, however, have questioned whether such pay is excessive or this use of taxpayer money prudent. It’s all been blindly okayed under the hallowed pretense of “public health”.

With experts recommending that the country hire a total of 150,000 contact tracers, these programs may end up costing the states somewhere between $1 billion and $10.5 billion altogether. On top of that sum lie whatever additional costs the handful of states developing digital tracing apps incur. Worse, bills currently floating around the House and Senate would, if made law, establish a federally-led contact tracing program with a price tag as high as $100 billion. To government budget-breakers, that may just look like zeros and decimal places, but there’s a serious economic toll to be reckoned with. 

Increased government spending is often accompanied by a rise in taxes, and almost always by an expansion of the money supply. In either case, people’s wealth is subsequently decreased. Individuals and their families must, accordingly, cut back on the amount of money they save, which in turn decreases the stock of loanable funds from the level that would have otherwise been available. As a result, the amount of investment in the economy falls, dulling the momentum of economic growth. That could severely dampen the economy’s post-recession recovery. 

In our present crisis—unlike any before—many businesses were shut down for months not by economic circumstance, but by state decree. That contributed to the sharpest ever employment crisis in the US, with more than 20 million workers being cut from payrolls in April alone. Some of these cuts were temporary furloughs, but a part of that number reflects permanent job loss—either from companies being forced to slash operating costs or going bankrupt outright.

Some of the proponents of the state’s contact tracing programs see themselves as killing two birds with one stone—helping to eliminate COVID, while also putting people back to work. Senator Kamala Harris (D-CA) made this clear when stumping for the federal contact tracing bill she co-sponsored: “Our policies must meet the needs of the current moment, and that means getting creative about how we get people back to work”. 

But government jobs programs don’t actually create employment in any way besides superficially. The reality is that they siphon labor away from potentially productive ventures at wages propped up at artificially high rates. This too will defer the economy’s recovery and must—for the good of private enterprise—be halted immediately. But by the looks of it, the program will continue forward uninterrupted, as it plays perfectly into the narrative that the state can solve all of society’s ills—no matter what the economics and epidemiology really say about it.

Public Health Doublethink

Much of how the public should respond to the virus hinges on the question of how common asymptomatic transmission of it is. Unfortunately, the research available on this is limited and contradictory, allowing cunning politicians to play both sides of the fence in order to get their way.

Some early findings suggest that the virus undergoes considerable shedding in patients not showing symptoms, meaning that asymptomatic transmission is indeed common. Viewed through this narrow lens, it would seem that there’s cause to worry. However, the data suggesting the prevalence of asymptomatic transmission is ultimately rather paltry, and there’s evidence pointing to the contrary.

WHO spokeswoman Maria van Kerkhove recently claimed that based on “a number of reports from countries who are doing very detailed contact tracing,” asymptomatic transmission is “very rare”—directly contradicting what public health officials had long assumed about the virus. If the risk of contagion remains low until after symptoms appear, patients are far less likely to spread the virus to others. This notion too, though, is based on data that is, as of yet, incomplete, leaving the question of asymptomatic transmission unsolved and open to further inquiry. But whatever the underlying reality is, a significant problem must inevitably emerge for defenders of the government’s pandemic response efforts. 

At the outset, governors imposed the lockdowns for fear that asymptomatic carriers were spreading the virus. Since anybody could unknowingly be infected and contagious, lockdowns were put in place as a proactive quarantine on the entire population. But according to Dr. Don Printz, a former research leader at the CDC, if there’s “shedding 2-5 days before any signs or symptoms, I would think [contact tracing] would be almost impossible”. Indeed, with an incubation period lasting between two and fourteen days, many patients would remain contagious for a long time without ever showing symptoms. New chains of transmission would easily emerge, generating exponential growth in the number of new cases. By the time contact tracers tried to map the probable path of transmission, the virus would have already spread to a number of other people—and on and on after that. 

On the flip-side, if asymptomatic transmission is “very rare,” as van Kerkhove asserted, contact tracing may be a successful strategy. If only symptomatic patients are spreading the virus, though, the whole rationale for the lockdowns is then completely destroyed. For all the economic, political, social, and psychological damage the lockdowns caused, they would have yielded absolutely no public health benefit. It boils down to this: it’s either (1) that the lockdowns were effective or (2) that the contact tracing is effective, but politicians can’t have it both ways. 

Still, the government’s big-spenders have pushed forward without delay. In fact, they’ve doubled down on their self-contradictions. The CDC, for instance, declared that “asymptomatic transmission enhances the need to scale up the capacity for … thorough contact tracing”. That is, of course, a repetition of the perennial call for more funding—oh, how our problems would disappear if only we spent more. Funneling more money towards programs that are inherently faulty won’t lead to better or more effective results, but to programs just as faulty, only with larger personnels.

Trying to Trace COVID Probably Won’t Work Anyway

Even casting aside politicians’ obvious public health duplicity, their contact tracing plans don’t stand up to scientific scrutiny. Whatever the case with asymptomatic transmission may be, COVID’s characteristics pose contact tracers unique and probably insurmountable challenges, leaving the US’ tracing “army” already besieged.

The first problem is that catching COVID is not activity-specific, unlike other viruses like, say, HIV. Anyone in close proximity to a contagious COVID patient is at-risk for inhaling virus-ridden droplets that had been coughed, sneezed, or breathed out—it doesn’t matter where people are or what they’re doing. That suggests that the virus may often be transmitted between complete strangers, in which case contact tracing is rendered impossible, as tracing relies upon patients recalling their recent contacts. 

This has only been exacerbated over the past month with the Black Lives Matter riots springing up across the country—a perfect storm for the virus’ spread. Research has shown activities like yelling, singing, and chanting to extend the distance that infectious droplets are spewed into the air. Not only does this lead to more new cases, but it also makes it much more difficult—even impossible—for tracers to figure out who passed the virus to whom.

The second problem arises once symptoms begin to show. The way COVID manifests itself is multifarious, with some patients only exhibiting irregular symptoms not usually associated with the virus, like loss of smell, rash, and delirium. Many of its key symptoms—including dry cough, fever, and shortness of breath—are found in a variety of other illnesses, further muddying the waters. That leaves gaping holes in the health record and may lead to new, hard-to-trace outbreaks.

Though meant to increase efficiency and efficacy, digital tracing apps are also riddled with significant problems. If the apps aren’t downloaded by enough residents, many may easily fall through the cracks and infect others. The apps only confer public health boons if they’re in common and widespread use. But today, nearly 20% of Americans still don’t own smartphones and a recent poll indicated that only half of those who do would consider downloading a tracing app. And that’s not even to mention the fact that people don’t always have their phones on their person, meaning that many interactions could take place untraced and under the radar.

In focusing entirely on proximity, digital tracing continues to get it wrong. Indoor air flow poses a risk of spreading infectious droplets across rooms and throughout entire buildings—far beyond the six-foot proximity the apps look for. This summer, that risk may be augmented by AC ventilation. Then there’s also the risk of touching infected surfaces, which may harbor traces of the virus for hours or up to a few days. The apps simply can’t account for this sort of spread, chipping further away at their overall effectiveness.

Moreover, there are some instances where people who are physically close together are extraordinarily unlikely to become infected, like in a supermarket checkout line, separated from the clerk by a plexiglass shield. Nonetheless, this would trigger an alert to be sent to people’s phones, warning them of possible COVID exposure with no further explanation—triggering a false alarm and probably a lot of worry and confusion. Divorcing the human factor from the process takes an undeniable toll on its reliability, when it was never that reliable in the first place.

Why should anyone still have faith in the government when it’s made fatal stumbles at every step of the pandemic? Public health officials were unable to stop the first instances of community spread of COVID in late January and even remained in denial that the virus was spreading uncontrollably until the end of February. The notion that contact tracing is right now serving as a useful strategy in the US—with active cases hovering around 1 million—is preposterous.

Officials may feign confidence in the decisions they make, but that’s fueled by pure optics, not science. Across all fifty states, these programs are on track to reroute billions of dollars and more than one hundred thousand workers away from otherwise valuable uses. And for what? All to spin our wheels and sink into a false sense of hope and security.

via ZeroHedge News https://ift.tt/38fgmgZ Tyler Durden

Trump Never Briefed On Unvetted Russian Bounty Intel Because NSA “Strongly Dissented”  

Trump Never Briefed On Unvetted Russian Bounty Intel Because NSA “Strongly Dissented”  

Tyler Durden

Tue, 06/30/2020 – 19:05

On Tuesday, the same day that Joe Biden finally emerged to hold his first press conference in 89 days in order to lash out at what he called Trump’s “dereliction of duty” over the NY Times Russian bounties for Taliban militants to kill American troops in Afghanistan story, The Wall Street Journal issued this bombshell:

The National Security Agency strongly dissented from other intelligence agencies’ assessment that Russia paid bounties for the killing of U.S. soldiers in Afghanistan, according to people familiar with the matter.

The disclosure of the dissent by the NSA, which specializes in electronic eavesdropping, comes as the White House has played down the revelations, saying that the information wasn’t verified and that intelligence officials didn’t agree on it.



NSA headquarters in Maryland, file image.

As we noted before, it appears a return this week to mainstream media’s prior years of near daily breathless Russiagate reporting, with “anonymous intelligence sources” issuing new leaks of unvetted raw intel to the press.

The WSJ points out that it was primarily the NSA’s firm dissent that kept the Russian bounties allegation out of the president’s daily briefing  which both further confirms the White House’s denials of the initial Friday Times reporting, as well as contradicts the NYT “revelation” itself. 

Because of that [NSA dissent], President Trump was never personally briefed on the threat, the White House said, although a key lawmaker said the information apparently was included in written intelligence materials prepared for Mr. Trump,” WSJ underscores.

No details were given as to precisely how the NSA differed in its assessment of the Russian bounty allegations. For those keeping score, this marks the third major formal distancing from the substance of the NYT reporting by US intelligence agencies and intel community leadership.

Also recall this isn’t the first instance of significant NSA pushback concerning explosive charges aimed at Russia: 

On Saturday Director of National Intelligence John Ratcliffe said in a statement that he had “confirmed that neither the President nor the Vice President were ever briefed on any intelligence alleged by the New York Times in its reporting.” 

CIA Director Gina Haspel also appeared to vindicate the White House’s assertion of lack of credible intelligence behind it in a Monday statement. Essentially the CIA director seemed to reference the danger of “cherry-picking” from lower level unvetted raw information.“When developing intelligence assessments, initial tactical reports often require additional collection and validation,” Haspel said.

“Leaks compromise and disrupt the critical interagency work to collect, assess, and ascribe culpability,” she added, strongly suggesting that indeed there was not enough to go on concerning the Russian bounty allegations for it to rise to the level of the commander-in-chief. In actually this was further a CIA condemnation of the “anonymous” leakers out of which the whole narrative was spun. 

via ZeroHedge News https://ift.tt/3gezUF3 Tyler Durden

Think The “Cancel” Mobs Can’t Get Any Worse? Think Again

Think The “Cancel” Mobs Can’t Get Any Worse? Think Again

Tyler Durden

Tue, 06/30/2020 – 18:45

Authored by Harlan Hill via RealClearPolitics.com,

America is in the midst of one of the great moral panics in our nation’s history. If we don’t stand up for our nation’s core values, the situation could get even worse – and soon. If you’ve spent any time on social media in the last three weeks, you’ve probably noticed the organized campaigns to get college and even high schoolstudents expelled or denied admission based on their political views. You’ve also seen gleeful mobs celebrating as Americans lose their jobs for running afoul of someone’s momentary political obsessions.

In every sector of American society, people are having their careers destroyed to the pitiless baying of the “woke” masses. It’s happening in business. CrossFit CEO Greg Glassman spent 20 years building the fitness brand into a multi-billion dollar company, only to be thrown out of the empire he built for declining to go along with the “racism is a public health crisis”  dogma.

It’s happening in journalism. New York Times editor James Bennet, a liberal, was fired for publishing an op-ed by a sitting Republican senator advocating for a military response to nationwide rioting — a position the majority of Americans agreed with. The same fate befell Philadelphia Inquirer editor Stan Wischowski, who was terminated for approving an article that condemned looting and arson.

It’s happening in entertainment, in academia, and pretty much anywhere someone can be found who is not sufficiently supportive of the Black Lives Matter movement.

It’s even happening to people who didn’t do anything at all. An L.A. Galaxy soccer player was forced to resign because his wife tweeted that rioters should be shot. A lawyer in San Francisco was fired because his wife was rude to a man she thought was spray-painting BLM propaganda on a building that wasn’t his (it was). On Thursday, this Stasi-esque trend reached another level when a company called Equity Prime Mortgage fired the stepmother of the officer charged in the controversial shooting of drunk driver Rashad Brooks after he fought with and fired a taser at police. The stepmother was apparently fired for no reason other than family loyalty.

On Monday, the panic reached what one can only hope will be its peak when a San Diego Gas and Electric employee lost his job for “making a white supremacist hand gesture.” We’ve long since debunked the notion that the OK sign is somehow racist — that was just a fiction perpetrated by internet trolls — but in this case, this man lost his livelihood despite the fact he wasn’t even making an OK sign. He was apparently cracking his knuckles as he drove.

What America is going through right now is not merely another, more intense round of “cancel culture.” We’re now in the midst of a full-force, totalitarian remolding of our society, one that seeks to place the petty resentments of an outraged minority of leftist activists above everything else in American life. Because of their willingness to riot, loot, and assault anyone they perceive to be insufficiently sympathetic to their cause, leftists are able to bully ordinary people into submission. As a result, television shows such as “Cops” and “Live PD,” classic films such as “Gone With the Wind,” and iconic brands such as Aunt JemimaMrs. Buttersworth, and Uncle Ben’s rice are consigned to the “dustbin of history.”

I used to speak frequently to nervous conservatives who were convinced that if we only allowed the left to tear down Confederate war memorials, they would be satisfied. How quickly events have disproved that wishful thinking. From Christopher Columbus, George Washington, Thomas Jefferson, and the western pioneers, activists are now coming after cartoon sports mascots and college fight songsEverything — from the core of our country’s history to the values and norms undergirding American culture — must be uprooted to appease the mob. 

They are tearing down dozens of statues and facing no consequences whatsoever for vandalizing our public spaces — including memorials to our nation’s greatest heroes. When private citizens try to do the job the government won’t and protect our culture, our history, and our public property from destruction, local officials step in and remove the statues on behalf of the vandals, lest they injure themselves while imitating Iraqis celebrating the fall of Saddam Hussein.

These people are not seeking change at the margins. They are demanding a total cultural revolution, and cowardly public officials are giving it to them. If you look at this national outpouring of hatred and recrimination with horror verging on despair, I assure you that you are not alone. Tens of millions of Americans feel exactly the same way.

President Trump is doing exactly what an American president should do in a crisis like this. He is working to maintain law and order and prevent cowed local officials from allowing political violence to flare again. He issued an executive order to add to his legacy of reform and address legitimate concerns about law enforcement in this country. He also issued a separate executive order targeting the systemic bias in Silicon Valley’s censorship offices, which has allowed our social media platforms to become echo chambers for left-wing extremism and “cancel culture.”

The only thing that could make the situation worse at this moment would be handing the White House to a doddering and unprincipled establishment politician beholden to the “cancel culture” mob. Presumptive Democratic nominee Joe Biden would immediately delegate de facto control over the vast justice, civil rights, and regulatory apparatus of the federal government to the loudest voices in his coalition: the woke activist class.

At this moment, there is a veritable army of lawyers and bureaucrats who have spent the last three and a half years subsisting on resentment and salivating at the prospect of regaining power. Things are bad enough now, but conditions will become much worse if the “cancel culture” born on social media is augmented with the force of law and given the full attention of Biden appointees imbued with the sweeping powers of the federal bureaucracy.

Dark forces have been unleashed in this country. Even now, we are only seeing the tip of the iceberg. If we don’t want to find out how much damage it can inflict on the ship of state, we must prevent those forces from taking control of the federal government.

via ZeroHedge News https://ift.tt/3dL0MuM Tyler Durden

The Roberts Court Slowly Inters Justice Kennedy’s Ephemeral “Jurisprudence of Doubt”

Two years ago, Justice Kennedy announced that he would retire from the Supreme Court. One of my earliest thoughts was, “I will never have to edit another Kennedy opinion for the casebook!” My follow-up thought was, “How long will I have to keep the Kennedy opinions in the casebook, once they are overruled or whittled away.” The whittling away has already begun. The Roberts Court is slowly, but surely interring Justice Kennedy’s ephemeral “jurisprudence of doubt.” Blue June has already buried at least three precedents with Justice Kennedy in the majority: Boumediene v. BushWhole Woman’s Health, and Footnote 3 of Trinity Lutheran.

Boumediene v. Bush

Boumediene suffered two major blows during Blue June. The first hit came in DHS v. Thuraissigiam (see here and here). Justice Alito’s majority required a very precise fit between history and the Petitioner’s claim.

Despite pages of rhetoric, the dissent is unable to cite a single pre-1789 habeas case in which a court ordered relief that was anything like what respondent seeks here.

Justice Kennedy’s 2008 majority opinion relied on history in a very fluid fashion. In dissent, Justice Sotomayor wrote that Boumediene “never demanded the kind of precise factual match with pre-1789 case law that today’s Court demands.” She’s right.

As I read Thuraissigiam, the Court has closed the door to any future expansion of the Suspension Clause jurisprudence, unless there is a close analogue to historical practice in 1789. Indeed, Mike Dorf finds an even greater limitation:

In both St. Cyr and Boumediene v. Bush, the Supreme Court said that the Suspension Clause protects a right to habeas that is “at the absolute minimum” as expansive as the scope of habeas in 1789, leaving open the possibility of further expansion. Justice Alito’s opinion (1) finds that the scope in 1789 does not benefit Thuraissigiam and (2) does not go beyond that minimum.

The Court has now rejected any possible “evolving” notion of habeas. The Great Writ is solidified in amber.

Boumediene took another hit in a sleeper case of the term, Agency for Int’l Development v. Alliance for Open Society. Justice Kavanaugh’s nine-page decision resolved a really important constitutional question with very little fanfare. He wrote:

First, it is long settled as a matter of American constitutional law that foreign citizens outside U. S. territory do not possess rights under the U. S. Constitution. Plaintiffs do not dispute that fundamental principle. Tr. of Oral Arg. 58–59; see, e.g., Boumediene v. Bush, 553 U. S. 723, 770– 771 (2008); Hamdi v. Rumsfeld, 542 U. S. 507, 558–559 (2004) (Scalia, J., dissenting); United States v. Verdugo-Urquidez, 494 U. S. 259, 265–275 (1990); Johnson v. Eisentrager, 339 U. S. 763, 784 (1950); United States ex rel. Turner v. Williams, 194 U. S. 279, 292 (1904); U. S. Const., Preamble.

Justice Kavanaugh posed this precise question during oral argument:

JUSTICE KAVANAUGH:  Good morning, counsel. I want to clarify, first, one thing from your colloquy with Justice Ginsburg. You agree, I assume, that unaffiliated foreign entities acting abroad have no constitutional rights under this Court’s precedents.

MR. BOWKER: We do, Your Honor.

This concession was unwise. And I also think it was wrong.

Justice Breyer’s dissent explains the Court has never actually reached this sweeping conclusion.

Even taken on its own terms, the majority’s blanket assertion about the extraterritorial reach of our Constitution does not reflect the current state of the law. The idea that foreign citizens abroad never have constitutional rights is not a “bedrock” legal principle. At most, one might say that they are unlikely to enjoy very often extraterritorial protection under the Constitution. Or one might say that the matter is undecided. But this Court has studiously avoided establishing an absolute rule that forecloses that protection in all circumstances.

Breyer explains that Boumediene, which Kavanaugh cited, rejects such a categorical rule.

Nor do the cases that the majority cites support an absolute rule. See ante, at 3. The exhaustive review of our precedents that we conducted in Boumediene v. Bush (2008), pointed to the opposite conclusion. In Boumediene, we rejected the Government’s argument that our decision in Johnson v. Eisentrager, (1950),”adopted a formalistic” test “for determining the reach” of constitutional protection to foreign citizens on foreign soil. This is to say, we rejected the position that the majority propounds today. Its “constricted reading” of Eisentrager and our other precedents is not the law. See Boumediene, 553 U. S., at 764.

The law, we confirmed in Boumediene, is that constitutional “questions of extraterritoriality turn on objective factors and practical concerns” present in a given case, “not formalism” of the sort the majority invokes today.

Well, with AMK in the middle, Boumediene rejected “formalism.” But now “formalism” is the law with JGR in the middle. And five votes endorse Justice Jackson’s observation from Eisenstrager.

Boumediene is basically a dead letter. Never overruled, but currently interred.

Whole Woman’s Health v. Hellerstedt

Whole Woman’s Health was decided in June 2016, shortly after Justice Scalia passed away. The vote was 5-3. Justice Breyer’s majority opinion expanded upon the framework from Planned Parenthood v. Casey: courts should balance two factors: (1) whether the law imposed an “undue burden” on abortion access and (2) whether the law provides an actual benefits. Of course, Justice Kennedy assigned that majority opinion to Justice Breyer. And Kennedy no doubt realized that Breyer was departing from Casey. But 2016 was a bizarre year. Justice Kennedy also reversed his own opinion on affirmative action from Fisher I to Fisher II, that conflicted with his vote in the Michigan affirmative action cases. In any event, 2016 was so four years ago.

In June Medical, Chief Justice Roberts vote to uphold the Louisiana abortion law–and only the Louisiana abortion law. His concurrence casts serious doubt on Whole Woman’s Health. Indeed, he seems to suggest that WWH departed from Casey. Yesterday, I noted:

Going forward, there are five votes to limit the Court’s abortion framework to consider a a law’s burdens, without weighing the law’s benefits.  The Chief has effectively overruled Whole Woman’s Health to the extent it departs from Casey. The Chief didn’t swing to the left; at most, he feinted left for this Blue June.

For reasons unknown, Roberts considers the Casey plurality (three votes) a valid precedent, but the WWH majority (five votes) is not a valid precedent. In any event, Justice Kennedy’s 2017 vote on abortion will be interred. But his 1992 vote on abortion is now, apparently, settled law. Go figure.

Trinity Lutheran v. Comer—Footnote 3

The vote in Trinity Lutheran was deceiving. On its face, the Court split by a 7-2 vote. But the majority was fractured. Justice Breyer only concurred in judgment. Chief Justice Roberts, and Justice Kennedy, Alito, and Kagan joined the majority opinion in full. And Justices Thomas and Gorusch joined the majority opinion, except for Footnote 3. Footnote 3 stated:

This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.

In other words, Trinity Lutheran only concerned a case in which the state denies funding to the church because of its status as a house of worship. The case did not involve a denial of funding to the church because it would use money for “religious uses.” For example, instead of using funds to purchase tire scraps for the playground, the church could purchase funds to purchase books for religious instruction.

In a partial concurrence, Justice Gorsuch, joined by Justice Thomas, wrote that this distinction is flimsy.

First, the Court leaves open the possibility a useful distinction might be drawn between laws that discriminate on the basis of religious status and religious use. Respectfully, I harbor doubts about the stability of such a line.

In any event, the bulk of Trinity Lutheran was precedent, but Footnote 3 was not; it only garnered four votes. And could be disregarded just as quickly. Fast-forward to today, with Espinoza. Chief Justice Roberts wrote a majority opinion that was joined in full.

The Chief flagged the status/use distinction from Trinity Lutheran:

Some Members of the Court, moreover, have questioned whether there is a meaningful distinction between discrimination based on use or conduct and that based on status. See Trinity Lutheran, (GORSUCH, J., joined by THOMAS, J., concurring in part). We acknowledge the point but need not examine it here. It is enough in this case to conclude that strict scrutiny applies under Trinity Lutheran because Montana’s no-aid provision discriminates based on religious status.

Later, Roberts suggested that he was not tied to Footnote 3.

A plurality declined to address discrimination with respect to “religious uses of funding or other forms of discrimination.” Trinity Lutheran at n. 3. The plurality saw no need to consider such concerns because Missouri had expressly discriminated “based on religious identity,” which was enough to invalidate the state policy without addressing how government funds were used.

The key word is “plurality.” Not a majority. It seems that the Chief added Footnote 3 in Trinity Lutheran to assuage Justices Kagan and/or Kennedy. For the Chief, FN 3 was just another move in a game of 87-dimensional chess. He sacrificed a pawn to set up the Espinoza checkmate. Now, three years later, he no longer needs Justice Kennedy’s vote, and will not need to secure Justice Kagan’s on this case.

Trinity, and now Espinoza, also move away from the Rehnquist-Court era decision, Locke v. Davey. Michael Moreland observes that “Chief Justice Rehnquist wrote a narrow, almost case-specific holding (a characteristic Rehnquistian move)” in that case.

Justice Breyer seems miffed that the Court has abandoned the “play in the joints” line from Locke:

Although the majority refers in passing to the “play in the joints” between that which the Establishment Clause forbids and that which the Free Exercise Clause requires, its holding leaves that doctrine a shadow of its former self.

He’s right. There is no longer any need to appease Anthony Kennedy or Sandra Day O’Connor.

Going forward, I presumptively treat any 5-4 decision with Kennedy in the majority as persuasive, at best.

from Latest – Reason.com https://ift.tt/31wsitf
via IFTTT

UCLA Academic Freedom Committee Statement Related to the Gordon Klein Controversy

Just posted by the UCLA Academic Senate Committee on Academic Freedom, about the controversy discussed here on June 10:

Statement of the Academic Freedom Committee

June 30, 2020

In response to a recent controversy surrounding an e-mail reply to a student by Gordon Klein (a Lecturer in Accounting at the Anderson School), the UCLA Senate Committee on Academic Freedom underlines all instructors’ freedom (protected by APM-010) to express their views on grading policy as they determine to be appropriate.

Some people may well disagree with Prof. Klein’s views, and think that he should have responded differently to a student’s request that the grading structure be changed to “exercise compassion and leniency with Black students in our major.” But instructors are entitled and empowered to say “no” to such requests;[1] and, just as students have every right to express their views on such matters to faculty and to others, instructors are entitled to explain their views in turn to students. When any of us ask people to do things, especially based on a moral or political argument about current events, those people are entitled to respond with their own moral or political views.

The process of evaluating the situation is proceeding at the Anderson School, and our committee has no direct role in that process. Our concern instead is that any public announcement that an instructor is being placed on administrative leave for what appears to be a particular statement—whether the statement happened in class, in an e-mail responding to a student, on social media, or wherever else—creates a chilling effect for other instructors, especially untenured ones. It is the committee’s role to try to prevent such chilling effects.

An academic institution like UCLA must remain a place for the expression of a wide diversity of views and interpretations. It should also be a site of vigorous debate—including by students, by faculty, and by others—so that those exposed to or participating in these discussions have the opportunity to hear a range of opinions as they formulate their own views.

[1] See, e.g., Academic Senate Memo on Spring 2020 Final Exams, which reaffirms that instructors have “the flexibility to change their method of final assessments” so long as the final grade “reflect[s] the student’s achievement in the course” and is “based upon adequate evaluation of the achievement,” but does not require instructors to make any particular changes.

Disclosure: I am one of the several members of the Committee.

from Latest – Reason.com https://ift.tt/3eQSPoY
via IFTTT

WaPo Does Damage Control After “Far More Damaging” Biden-Ukraine Tapes Disclosed

WaPo Does Damage Control After “Far More Damaging” Biden-Ukraine Tapes Disclosed

Tyler Durden

Tue, 06/30/2020 – 18:25

The Washington Post is trying to get ahead of what Rudy Giuliani says are “far more damaging” tapes of 2016 phone calls between former Vice President Joe Biden and former Ukrainian President Petro Poroshenko, which are set for release over the summer by a former Ukrainian diplomat.

To review, Biden conditioned a $1 billion US loan guarantee on the firing of Ukraine’s chief prosecutor, who was leading a wide-ranging investigation into Burisma – a Ukrainian energy company which hired Hunter Biden to sit on its board.

In May, Ukrainian MP Andrii Derkach released recordings of Biden and Poroshenko which explicitly detail the quid-pro-quo arrangement to fire the prosecutor, Victor Shokin (which Biden already admitted to).

Biden’s campaign says the tapes are part of a ‘conspiracy theory to smear him’ – while Poroshenko claims they are fabricated.

In one of the May tapes, Poroshenko reports back with “positive news” that Shokin – “despite of the fact that we didn’t have any corruption charges” – had been fired.

Last week, more recordings of Biden and Poroshenko were published to the YouTube channel, “NABU Leaks,” where the two can be heard discussing ongoing efforts by the United States to help Ukraine with various matters.

And according to a Tuesday report in the Washington Post, more tapes are coming.

Both Giuliani and Lev Parnas, a Ukrainian-American businessman who served as his fixer in Ukraine, confirmed that they sought tapes of Biden last year. Giuliani said he received assistance in his pursuit from a source within the State Department, who he claimed pointed him to the dates of certain conversations between Biden and Poroshenko by accessing an official U.S. government archive.

Giuliani told The Washington Post that he did not know the recently released recordings were coming before they were posted online last month. But in a recent interview with OAN, the former New York mayor claimed to be aware of other tapes that were “far more damaging,” saying, “I would hope that those tapes are put out also.” –Washington Post

The Post calls the clips “heavily edited” and paints Derkach, the Ukrainian MP, as essentially a proxy for Vladimir Putin. They also suggest that “the efforts to promote the recordings in Ukraine and the United States — and pledges by other Trump allies to release more in the coming months — suggest a new push by foreign forces to sway American voters in the run-up to the 2020 election,” and claim that the NABU leaks “further illustrate Trump’s willingness to benefit from foreign intervention in U.S. elections,” despite offering no evidence that Trump is involved in the leaks.

Well-worn playbooks aside, the Biden campaign had this to say of the audio clips:

“All the president’s men, both within our country and outside of it, have been constantly trafficking in objectively false, malicious conspiracy theories targeting Joe Biden since before he even entered the race. And their efforts have invariably fallen apart — because the American people know Joe Biden, his character, and his values.”

Derkach, meanwhile, said of the attempts to smear him as a Russian operative “There is not a single confirmed or reliable fact of my illegal activity or wrongful connections.”

More damage control by WaPo:

The hunt by the president’s allies for the Biden tapes and their subsequent release have echoes of the 2016 campaign, when Trump publicly asked Russia to find emails of his Democratic rival Hillary Clinton. Trump later said the comment was a joke, even as GOP operatives mounted a serious but unsuccessful operation to obtain her emails from hackers claiming to have them.

Democratic emails stolen by Russian intelligence officers were ultimately released through WikiLeaks, as special counsel Robert S. Mueller III detailed in his report. The sequence of events sparked a nearly two-year investigation, multiple congressional inquiries and federal charges against 12 Russian military intelligence officers. –Washington Post

 And here it is:

U.S. intelligence officials have warned that Russia could reprise its efforts to influence the race for the White House again this year.

And they keep going with the Russia angle, to the surprise of nobody:

Michael Carpenter, a Biden foreign policy adviser and former senior Defense Department official, called the tape snippets that Derkach is releasing “a KGB-style disinformation operation tied to pro-Russian forces in Ukraine whose chief aim is to make deceptive noise in the U.S. election campaign to advance the interests of their oligarchic backers, the Kremlin, and the faltering Trump campaign.”

The report also names non Russians (who might be secret Russians) who could be behind the tapes, including former Ukrainian Diplomat Andrii Telizhenko, and Ukrainian gas tycoon and former lawmaker Oleksandr Onyshchenko.

According to Telizhenko “This summer there will be more release of conversations, with full transcripts,” adding “I’m going to release everything all together when the time is right.”

Can we say “deadman’s switch?”

via ZeroHedge News https://ift.tt/3g63WL8 Tyler Durden

Daily Briefing – June 30, 2020

Daily Briefing – June 30, 2020


Tyler Durden

Tue, 06/30/2020 – 18:10

Managing editor Ed Harrison joins Dave Floyd, founder of Aspen Trading Group, to discuss how to evaluate markets from a technical perspective. Believing that it’s important to “follow the tape” and trade what an investor sees, Floyd shares where he believes bonds and the S&P are headed and how both technical and fundamental analysis inform each other in a market rocked by COVID-19. Harrison and Floyd also touch on distortions of market signals, volatility, currencies, and silver. In the intro, Nick Correa discusses the potential impact of the Payroll Protection Program on small businesses and how the spread of the virus in the US further hurts their chances of making it through the pandemic.

via ZeroHedge News https://ift.tt/31uP6cS Tyler Durden

The Real Pandemic Was A Nursing Home Problem

The Real Pandemic Was A Nursing Home Problem

Tyler Durden

Tue, 06/30/2020 – 18:05

Authored by Peter Earle via The American Institute for Economic Research,

Over the last week, many governors have reinstituted coronavirus policy implementations which had been in various phases of cessation. Why? This is because of an alleged “spike” in new COVID-19 infections. Other states have abbreviated their phased lifting of lockdowns. This is despite the fact that current US deaths from COVID-19 are now 90% off their peak. 

Washington State is considering criminalizing the refusal to wear a mask. New York State governor Andrew Cuomo has imposed new out-of-state visitor bans (with the comment that “in addition to law enforcement, [he] … expect[s] individuals such as hotel clerks … to question travelers from select states”). Democratic Presidential candidate Joe Biden’s comments that if he were to win the presidency, a federal mask mandate may follow. The Speaker of the House quickly voiced her support for that measure.

These and other developments suggest that rather than approaching the end of the government-created crisis, we may be at the threshold of a new beginning. That the recent rise in infections is mostly an artifact of massively expanded testing capabilities seems to occur to no one in the government or media. Equally unnoticed is that the apparently much wider spread of COVID-19 infections, many of which show middling symptoms or are treated as annoyances, should result in a decrease of concern: it appears that many times the number of people estimated early on have been infected by the novel coronavirus to little or no consequence. 

And further still, that some of the spike is accountable to the civil unrest in the wake of the murder of George Floyd. The prevalence of new COVID-19 infections among mostly Gen-Zs and Millennials (beside their prevalence in jobs that require COVID testing, such as in the fast food and service industries) undoubtedly had much to do with the disingenuity of political officials who ordered them to stay home, out of work and away from social occasions, yet responded with deafening silence as protests, demonstrations, and rioting broke out. 

Note the recent data trend in California:

Or in Minnesota:

As other statistics regarding the toll of the novel coronavirus outbreak firm up, certain patterns are beginning to come into focus.

With increasing certainty we can say that locked down states have seen four times the death toll of those which did not. The effectiveness of masking is, as well, being revealed as suspect, as is social distancing in the absence of testing and contact tracing (the efficacy of the latter of which is additionally questionable). 

A more important revelation of the ongoing deluge of data has been either missed (or ignored) by the press. At AIER, we noted the stunning death rates in long-term care facilities back in the third week of May. 

Just a few days ago, the New York Times reported that 54,000 deaths due to COVID-19 — 43% of all deaths in the United States — occurred in nursing home residents and workers:

In 24 states, the number of residents and workers who have died accounts for either half or more than half of all deaths from the virus. Infected people linked to nursing homes also die at a higher rate than the general population. The median case fatality rate – the number or deaths divided by the number of cases – at facilities with reliable data is 17 percent, significantly higher than the 5 percent fatality rate nationwide. 

New York State was only one of several states, though, which enacted orders increasing the virus death tolls. 

States that issued orders similar to Cuomo’s recorded comparably grim outcomes. Michigan lost 5% of roughly 38,000 nursing home residents to COVID-19 since the outbreak began. New Jersey lost 12% of its more than 43,000 residents. In Florida, where such transfers were barred, just 1.6% of 73,000 nursing home residents died of the virus. California, after initially moving toward a policy like New York’s, quickly revised it. So far, it has lost 2% of its 103,000 nursing home residents.

And keep in mind that this 43% average is massively dragged down because five states had zero deaths in nursing homes while other states had as many of 80% of their deaths in nursing homes. 

Source: NYT

This development is magnified in its awfulness upon close inspection of the document which informed the lockdown policies. The second-to-last paragraph in the original 2006 Nature article — the blueprint for the lockdowns, entitled “Strategies for Mitigating an Influenza Pandemic” reads,

Lack of data prevent us from reliably modeling transmission in the important context of residential institutions (for example, care homes, prisons) and health care settings; detailed planning for use of antivirals, vaccines, and infection control measures in such settings are needed, however. We do not present projections of the likely impact of personal protective measures (for example, face masks) on transmission, again due to a lack of data on effectiveness. 

The apparent omission of considerations regarding individuals in long-term care facilities by epidemiologists and policymakers, and the consequently disproportionate number of total fatalities among that same population, provides context for a series of hastysurreptitious actions by politicians to duck accountability (and harvest more power). 

It thus becomes increasingly clear that despite driving the U.S. economy into an artificial depression, destroying tens of thousands of businesses and the lives of millions of citizens, and elevating rates of domestic violencedivorcesubstance abuse, and suicide, US government policies failed to protect the most vulnerable segment of the population: individuals in nursing homes and other long-term care facilities. 

And furthermore, that despite 14 years between the publication of the “Strategies” paper and its real-world implementation, apparently no research was conducted that would have extended its conclusions to those particularly at-risk populations.

This, of course, is a vastly more fundamental issue than the inability of even the most complex computational methods to incorporate and account for social science phenomena. The susceptibility of the elderly and institutionalized, and in particular those with pre-existing conditions, was a ubiquitous consideration of virtually all medical protocols. Yet somehow between the 1970s and today, human knowledge regarding disease prevention and control — a product of informal institutions and cultural mores — was lost or forgotten; and into the vacuum swept the rigidities of top-down edicts informed by scientism: technocrats wielding agent-based models. 

Americans expect government agencies to lie and their prognoses and diagnoses to fail. Policy failures are vastly more common than successes, and successes — where they may be found — are always and everywhere a veritable font of unintended consequences. 

Far from producing better responses, models and simulations used as detailed outlines (rather than for high-level, mostly abstract insights) amplify, rather than attenuate, the failures of central planning. The model-driven response to the coronavirus pandemic, which now includes directly sacrificing the most vulnerable segment of the population to the virus, is only the latest. And it joins a growing heap of episodes which include the Fed’s response to the late 1920s financial boom and more recently the destruction of Iraq over WMDs that scarcely existed and the botched emergency response to Hurricane Katrina. 

Why do we continue to listen?

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