Classes #12 Separation of Powers II and Easements III

Class 12: The Separation of Powers II—The Removal Power

  • Seila Law v. CFPB (2020)

 

Class 12: Easements III

  • Assignability of Easements: Miller v. Lutheran Conference & Camp Association, 799-807
  • Scope of Right Acquired: Brown v. Voss, 807-818

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The First Rule of Court Packing is you do not talk about Court Packing.

I recently rewatched the movie Fight Club for the first time in nearly two decades. The premise of the movie is that there is a secret fight club, where men fight each other. And the club is a secret. Or at least, it is supposed to be a secret. In one of the more memorable scenes, the Tyler Durden character, played by Brad Pitt, announces the rules of fight club.

The first rule of Fight Club is—you do not talk about Fight Club.

The second rule of Fight Club is—you DO NOT talk about Fight Club.

And so on.

I thought of this scene when I watched the debate last night.

Chris Wallace asked Vice President Biden about whether he would support packing the Supreme Court. Biden’s response refused to even acknowledge that Court Packing was an option.

Chris Wallace: [I]f Senate Republicans go ahead and confirm Justice Barrett there has been talk about ending the filibuster or even packing the court, adding to the nine justices there. You call this a distraction by the President. But, in fact, it wasn’t brought up by the President. It was brought up by some of your Democratic colleagues in the Congress. So my question to you is, you have refused in the past to talk about it, are you willing to tell the American tonight whether or not you will support either ending the filibuster or packing the court?

Biden: Whatever position I take on that, that’ll become the issue. The issue is the American people should speak. You should go out and vote. You’re voting now. Vote and let your Senators know strongly how you feel.

Trump: Are you going to pack the court?

Biden: Vote now.

Trump: Are you going to pack the court?

Biden: Make sure you, in fact, let people know, your Senators.

Trump: He doesn’t want to answer the question.

Biden: I’m not going to answer the question.

Trump: Why wouldn’t you answer that question? You want to put a lot of new Supreme Court Justices. Radical left.

Biden: Will you shut up, man?

I think Biden was trying to suggest that the people should vote for him now, so he could then make the decision after the election. In other words, he will not comment on this issue because there is an election going on. Sort of a variant of the Garland rule. In any event, Biden cannot claim to be running on a mandate to pack the Court. He refused to even acknowledge it.

Senator Kamala Harris gave a very similar answer:

“You know, let’s. I think that — first of all — Joe has been very clear that he is going to pay attention to the fact, and I’m with him on this 1,000 percent, pay attention to the fact that right now, Lawrence, people are voting,” she said.

Because the election is ongoing, it is not proper to talk about an issue on which the people are voting.

Court packing is like Fight Club. We all know it’s there. We all know it will happen. It will be bloody and painful. But we can’t talk about it till it happens–after the election. And when it happens, there will be mayhem.

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Remy: Trump-Biden Debate Rap

imageYTv4

Remy is grossed out by what counts as discourse these days. He also brought taffy.

Written and performed by Remy; mastering by Ben Karlstrom; video produced by Meredith and Austin Bragg.

LYRICS

[Trump]”I brought back football.”
Nice, I brought back taffy
This is a joke debate
Why is nobody laughing?

Wait, this is the real thing?
This is absurd
What are we even watching?
I can’t get in a word

I don’t criticize supporters!
However zany
So stand down and stand by
Ayatollah Khameni

[BIDEN] “Will you shut up, man
Oh, so that’s how it’s presented?
Well back up out my way
Y’all about to get out-presidented!

The rule of law is important
On that we agree
That’s why, if I lose
I will never concede!

Fake news is a problem
It’s breaking the nation
It’s—wait a minute
I gotta retweet this misinformation…

Think he’s strong on the military?
Please, don’t bother
He’s going through generals like
The Harlem Globetrotters

They’re dropping like flies
I’m your ideal pick
He’s lost more mad dogs
Than Michael Vick

A return to normalcy
Wouldn’t that be endearing?
A time of civility
like the Kavanaugh hearings

Who’d even WANT this job?
You’d have to be a fool
Ain’t had a job THIS bad since I cleaned
Jerry Falwell’s pool

He’s better on Covid?
I’d have to make an objection
I’ve seen essential oils with better
Virus protection

Shoot, I’m gonna get emails…
Not the best placement
Mr. Biden?
Can I hide in your basement?

Undecided voters
I offer this take
You both have a very important
Decision to make.

This can’t be the new normal.

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Military Personnel Outnumber Civilian Scientists In US Vaccine Program

Military Personnel Outnumber Civilian Scientists In US Vaccine Program

Tyler Durden

Wed, 09/30/2020 – 19:20

Authored by Mac Slavo via SHTFplan.com,

Military personnel outnumber civilian scientists in the United States government’s Operation Warp Speed vaccine program. With the military so heavily involved in the distribution of this vaccine, is it any surprise that most Americans don’t want anything to do with it?

An organizational chart obtained by Stat shows, raising concerns about whether military officials are qualified to lead the massive public health campaign. The military is used for war. Rolling it out to distribute a rushed vaccine signals one thing to the public if you’re brave enough to admit it: this vaccine distribution is a war on the public perpetrated by the government. Wake up.

This vaccine won’t be voluntary by any sense of the word.  You don’t have to take it, but if you don’t, you won’t be able to eat, buy food, pay rent, or leave your house that will be taken from you if you cannot pay the mortgage because you refuse the vaccine. That doesn’t sound like anyone will have much of a choice.

This vaccine could be ready before the election, however, it may not be. Political chaos surrounding the elections is all a part of this vaccine agenda.  The goal is to have everyone tracked, traced, monitored, and under authoritarian control. The goal is the New World Order.

The Health and Human Service’s $300 million “pandemic-related” ad campaign (propaganda rollout) touched off an outcry, and rightfully so, after Politico reported leaked details. Among the concerns were its funding sources: Food and Drug Administration contributed $15 million for pre-campaign work, while most of the program’s $300 million budget was requisitioned from the Center for Disease Control and Prevention funds appropriated by Congress, Politico revealed.

Additionally, the Ohio national guard was called upon to help provide “security” for the presidential debate. Around 300 members were sent to the city to “ensure a safe and secure environment for those attending Tuesday’s presidential debate in Cleveland.”

The military will be increasingly used in the coming months and it’s rollout will be seen as a way to provide peace and safety. Please remain vigilant and prepared. Stay alert and know all the possibilities of what could be coming, as it’ll give you an idea of the additional preps that will be needed. As of right now, refuse to live in fear, and make sure you can defend yourself and your family, especially if you intend to deny the vaccine.

Changes are coming, so prepare and stay alert.

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

One Ohio Hospital Went Offline For A Week, Surgeries Canceled, Amid Spate Of Ransomware Attacks

One Ohio Hospital Went Offline For A Week, Surgeries Canceled, Amid Spate Of Ransomware Attacks

Tyler Durden

Wed, 09/30/2020 – 19:00

Earlier we detailed that computer systems for Universal Health Systems (UHS), a major hospital and healthcare provider with over 400 locations across the U.S., was hit with what appears to be one of the largest medical cyberattacks in US history.

Demonstrating just how prone America’s vital infrastructure remains to large-scale cyber attacks which could debilitate the country’s response efforts in emergency situations, the spate of ransomware attacks have impacted the operations of 53 US health care providers or health care systems so far this year, according a cybersecurity firm cited in the latest NBC report on the attacks.

The worst and most recent instance was centered on a major Cleveland area hospital, which was taken offline for a full week following an apparent cyberattack. The damage from the hack of the Ashtabula County Medical Center’s systems was so bad that all elective procedures at the hospital had to be postponed, reports NBC.

The facility’s computer systems have been offline since Monday, Sept. 21, according to hospital officials. It’s as yet unclear when full hospital operations will be restored, though elective procedures are expected to begin again this week. 

“As a result of this incident, we have postponed all elective procedures through Wednesday, Sept. 30,” the medical center CEO Michael Habowski said. “Our emergency department remains open to life-threatening emergencies and walk-in patients, and our outpatient departments and physician offices are continuing to provide care for patients.”

Once inside a system via malicious software which encrypts key files, hackers typically demand payment as a condition for restoring network capabilities. That appears to have happened in this case, part of a broader worrisome trend of hackers targeting American health and industrial sectors



Ashtabula County Medical Center in Ohio.

The NBC report did not delve into the possibility that any particular nefarious outside state actor or entity are behind the surge in cyberattacks, though prior allegations from the State Department and FBI have previously pointed the finger at China and Iran.

These two countries in particular are believed after valuable coronavirus research and vaccine information; however, they would likely attempt to conceal their intrusions.

via ZeroHedge News https://ift.tt/2GcJKec Tyler Durden

Civil War 2.0: “The Country Is Now Out Of Its Mind”

Civil War 2.0: “The Country Is Now Out Of Its Mind”

Tyler Durden

Wed, 09/30/2020 – 18:40

Authored by James Howard Kunstler via The Daily Reckoning,

America has a new manufactured crisis, ElectionGate, as if all the other troubles piling up like tropical depressions marching across the September seas were not enough.

America needs a constitutional crisis like a hole in the head, and that’s exactly what’s being engineered for the holiday season by the clever folks in the Democratic Party’s Lawfare auxiliary.

Here’s how it works:

  • The complicit newspapers and cable news channels publish polls showing Joe Biden leading in several swing states, even if it’s not true.

  • Facebook and Twitter amplify expectations of a Biden victory.

  • This sets the stage for a furor when it turns out that he loses on election night.

  • On cue, Antifa commences to riot all around the country. Meanwhile, a mighty harvest of mail-in votes pours into election districts utterly unequipped to validate them.

  • Lawfare cadres agitate in the contested states’ legislatures to send rogue elector slates to the electoral college. The dispute ends up in congress, which awaits a seating of newly-elected representatives on January 4, hopefully for Lawfare, mostly Democrats. Whoops…!

  • Turns out, the Dems lost their majority there too. Fighting in the streets ramps up and overwhelms hamstrung police forces in Democratic-run cities.

  • January 20 — Inauguration Day — rolls around, and the Dems ask the military to drag Trump out of the White House “with great dispatch!” as Mr. Biden himself put it so nicely back in the summer.

The U.S. military breaks into two factions. Voilà: Civil War Two.

You didn’t read that here first, of course. It’s been all over the web for weeks, since the Democratic Party-sponsored Transition Integrity Project (cough cough) ran their summer “war game,” intending to demonstrate that any Trump election victory would be evidence of treason and require correction by any means necessary, including sedition, which they’d already tried a few times in an organized way since 2016 (and botched).

The Democrats are crazy enough now to want this. They have driven themselves crazy for years with the death-wish of eradicating western civ (and themselves with it). There are many reasons for this phenomenon, mostly derived from Marxist theories of revolution, but my own explanation departs from that.

The matter was neatly laid out a year ago during the impeachment ploy: After the color revolution in Ukraine, 2014, Mr. Biden was designated not just as “point man” overseeing American interests in that sad-sack country, but specifically as a watchdog against the notorious deep corruption of Ukraine’s entire political ecosystem — as if, you understand, the internal workings of Ukraine’s politics was any of our business in the first place.

The evidence aired publicly last year suggests that Mr. Biden jumped head-first and whole-heartedly into the hog-trough of loose money there, netting his son Hunter and cohorts millions of dollars for no-show jobs on the board of natural gas company, Burisma.

And then, of course, Mr. Biden stupidly bragged on a recorded panel session at the Council on Foreign Relations about threatening to withhold U.S. aid money as a lever to induce Ukraine President Petro Poroshenko to fire a prosecutor looking into Burisma’s sketchy affairs.

Naturally, the Democratic Party impeachment crew accused Mr. Trump of doing exactly what Mr. Biden accomplished a few years earlier.

The impeachment fizzled, but the charges and the odor of the Biden-Burisma scandal lingered without resolution — all the while that Mr. Biden posed as a presidential candidate in the primaries.

This week, the Senate released a report detailing findings of their investigation into the Biden family’s exploits abroad. It didn’t look good.

Also implicated are the State Department officers in the Kiev embassy who pretended not to notice any of this, pointing also to their engagement in further shenanigans around the Trump-Clinton election of 2016 — a lot of that entwined in the Clinton-sponsored RussiaGate scheme.

Of course, the Senate was not so bold as to issue criminal referrals to the Justice Department.

If Mr. Biden actually shows up at this week’s debate, do you suppose that Mr. Trump will fail to bring up the subject?

Does this finally force Mr. Biden’s withdrawal from what has been the most hollow, illusory, and dispirited campaign ever seen at this level in U.S. political history?

All of which is to say that the Democratic Party has other things to worry about, besides who will replace Ruth Bader Ginsburg on the Supreme Court.

That may be hard to believe, but it’s how things are now after four years of implacable, seditious perfidy from the party.

A week ago, all the talk centered around the Democrats’ election coup plan, as publicized stupidly by the so-called Transition Integrity Project. Nice try. What if all those mail-in ballots sent out recently have Joe Biden’s name on them and it turns out that he is no longer a candidate?

Hmmmm…. No doubt the recipients were so eager to fill them in and send them out that there’s no going back on that scam. Apparently, a Biden withdrawal was not one of the scenarios scrimmaged out in the Transition Integrity Project’s “war game.”

What then? A do-over?

Hence, panic in the swamp. Joe Biden’s misadventures, and his pitiful fate, are but the outer rainbands of the brewing storm.

There’s the threat of further and widespread riots, of course, but since when has insurrection proved to be a winning campaign strategy in a country not entirely gone to the dogs?

People who are not insane usually object to their businesses being torched and their homes invaded. At this point, after months of violent antics by criminal nihilists, one can even imagine Multnomah County, Oregon, turning Trumpwise.

The orgy of political hysteria, insane thinking and violence is a psychotic reaction to the collapsing techno-industrial economy — a feature of it, actually.

When all familiar social and economic arrangements are threatened, people go nuts. Interestingly, the craziness actually started in the colleges and universities where ideas (the products of thinking) are supposed to be the stock-in-trade.

The more pressing the practical matters of daily life became, the less intellectuals wanted to face them. So, they desperately generated a force-field of crazy counter-ideas to repel the threat, a curriculum of wishful thinking, childish utopian nostrums and exercises in boundary-smashing.

As all this moved out of the campuses (the graduation function), it infected every other corner of American endeavor, institutions, business, news media, sports, Hollywood, etc.

The country is now out of its mind… echoes of France, 1793… a rhyme, not a reprise.

via ZeroHedge News https://ift.tt/3n8mnDl Tyler Durden

Navy SEALs Adopt Gender-Neutral Language In Official Ethos 

Navy SEALs Adopt Gender-Neutral Language In Official Ethos 

Tyler Durden

Wed, 09/30/2020 – 18:20

The U.S. Navy SEALs and the Navy Special Warfare Combatant-craft Crewmen (SWCC) have no women in their ranks, but according to a new report from American Military News (AMN), these elite commando units have modified their ethos and creed statements by removing gendered terms like “brotherhood” to reflect a more gender-neutral presentation. 

The SEALs and SWCC removed wordings like “men” and “brothers” to replace them with “warriors” and “citizens.” 

One of the changes can be seen here: “A common man with uncommon desire to succeed” to “Common citizens with uncommon desire to succeed.”

In an emailed statement, Naval Special Warfare spokesman Lt. Cmdr. Matthew Stroup told AMN that changes to the ethos and creed to gender-neutral complies with the rule to allow women in the SEALs and SWCC.

“Naval Special Warfare continues to deliberately develop a culture of tactical and ethical excellence that reflects the nation we represent, and that draws upon the talents of the all-volunteer force who meet the standards of qualification as a SEAL or SWCC,” Stroup said.

“The previous versions of the SEAL Ethos and SWCC Creed were written prior to the law allowing women to serve as operators in Naval Special Warfare,” he continued. “The changes do not in any way reflect lowering standards of entry, rather they ensure that all those who meet the requirements to train to become a SEAL or SWCC are represented in the ethos or creed they live out. This improves the posture of the NSW force by ensuring we draw from the greatest pool of talent available.”

“To date, no women completed the SEAL or SWCC qualification training pipelines,” he added.

The modifications did not go so well with Eddie Gallagher, the former Navy SEAL chief who was accused of committing war crimes. He wrote an Instagram post, calling the SEALs’ more gender-neutral approach as “a joke,” adding that “to be honest I thought the ethos was always B.S. Now I know it is. A creed or ethos is supposed to be written in stone, obviously ours is not and will sway to whatever political agenda is being put out.” 

Some Instagram users were very unhappy about the changes; one person called called it “unbelievable” and someone else said it was “atrocious… wow.” 

A little more than a year after President Trump banned transgender individuals from serving in the military, the SEALs are openly pushing back against the president’s position on LGBTQ people serving in the military. 

via ZeroHedge News https://ift.tt/3n4R2Bb Tyler Durden

The First Rule of Court Packing is you do not talk about Court Packing.

I recently rewatched the movie Fight Club for the first time in nearly two decades. The premise of the movie is that there is a secret fight club, where men fight each other. And the club is a secret. Or at least, it is supposed to be a secret. In one of the more memorable scenes, the Tyler Durden character, played by Brad Pitt, announces the rules of fight club.

The first rule of Fight Club is—you do not talk about Fight Club.

The second rule of Fight Club is—you DO NOT talk about Fight Club.

And so on.

I thought of this scene when I watched the debate last night.

Chris Wallace asked Vice President Biden about whether he would support packing the Supreme Court. Biden’s response refused to even acknowledge that Court Packing was an option.

Chris Wallace: [I]f Senate Republicans go ahead and confirm Justice Barrett there has been talk about ending the filibuster or even packing the court, adding to the nine justices there. You call this a distraction by the President. But, in fact, it wasn’t brought up by the President. It was brought up by some of your Democratic colleagues in the Congress. So my question to you is, you have refused in the past to talk about it, are you willing to tell the American tonight whether or not you will support either ending the filibuster or packing the court?

Biden: Whatever position I take on that, that’ll become the issue. The issue is the American people should speak. You should go out and vote. You’re voting now. Vote and let your Senators know strongly how you feel.

Trump: Are you going to pack the court?

Biden: Vote now.

Trump: Are you going to pack the court?

Biden: Make sure you, in fact, let people know, your Senators.

Trump: He doesn’t want to answer the question.

Biden: I’m not going to answer the question.

Trump: Why wouldn’t you answer that question? You want to put a lot of new Supreme Court Justices. Radical left.

Biden: Will you shut up, man?

I think Biden was trying to suggest that the people should vote for him now, so he could then make the decision after the election. In other words, he will not comment on this issue because there is an election going on. Sort of a variant of the Garland rule. In any event, Biden cannot claim to be running on a mandate to pack the Court. He refused to even acknowledge it.

Senator Kamala Harris gave a very similar answer:

“You know, let’s. I think that — first of all — Joe has been very clear that he is going to pay attention to the fact, and I’m with him on this 1,000 percent, pay attention to the fact that right now, Lawrence, people are voting,” she said.

Because the election is ongoing, it is not proper to talk about an issue on which the people are voting.

Court packing is like Fight Club. We all know it’s there. We all know it will happen. It will be bloody and painful. But we can’t talk about it till it happens–after the election. And when it happens, there will be mayhem.

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Remy: Trump-Biden Debate Rap

imageYTv4

Remy is grossed out by what counts as discourse these days. He also brought taffy.

Written and performed by Remy; mastering by Ben Karlstrom; video produced by Meredith and Austin Bragg.

LYRICS

[Trump]”I brought back football.”
Nice, I brought back taffy
This is a joke debate
Why is nobody laughing?

Wait, this is the real thing?
This is absurd
What are we even watching?
I can’t get in a word

I don’t criticize supporters!
However zany
So stand down and stand by
Ayatollah Khameni

[BIDEN] “Will you shut up, man
Oh, so that’s how it’s presented?
Well back up out my way
Y’all about to get out-presidented!

The rule of law is important
On that we agree
That’s why, if I lose
I will never concede!

Fake news is a problem
It’s breaking the nation
It’s—wait a minute
I gotta retweet this misinformation…

Think he’s strong on the military?
Please, don’t bother
He’s going through generals like
The Harlem Globetrotters

They’re dropping like flies
I’m your ideal pick
He’s lost more mad dogs
Than Michael Vick

A return to normalcy
Wouldn’t that be endearing?
A time of civility
like the Kavanaugh hearings

Who’d even WANT this job?
You’d have to be a fool
Ain’t had a job THIS bad since I cleaned
Jerry Falwell’s pool

He’s better on Covid?
I’d have to make an objection
I’ve seen essential oils with better
Virus protection

Shoot, I’m gonna get emails…
Not the best placement
Mr. Biden?
Can I hide in your basement?

Undecided voters
I offer this take
You both have a very important
Decision to make.

This can’t be the new normal.

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Democratic Policy & Communications Committee Cites “Unprecedented”

The Democratic Policy & Communications Committee released a report titled “How the Right-wing Capture of Our Courts Threatens Health Care and Reproductive Rights for Millions of Americans.” I am happy they cited my 2013 book, Unprecedented: The Constitutional Challenge to Obamacare. Here is an excerpt:

As soon as the law passed in 2010, the dark-money-funded National Federation of Independent Business8 (NFIB) and twenty-six Republican attorneys general all sued, arguing a key aspect of the law was unconstitutional.9 When the litigation started, “the idea that the Act’s mandate to purchase health insurance might be unconstitutional was, in the view of most legal professionals and academics, simply crazy.”10 However, a coordinated effort by the Heritage Foundation and other dark-money-funded organizations moved this radical argument into the right-wing mainstream.11 The organizations collaborated with the Republican attorneys general who filed suit and conscripted law professor Randy Barnett to draft an influential report on the constitutionality of the ACA.12 According to its legal director Todd Gaziano, Heritage hoped the report would “convince [professors] to write” articles, op-eds, and blog posts to lay the foundation for future constitutional challenges.13 Heritage also courted Congressional staffers in order to get the paper in the legislative record.14 Other dark-money organizations directly funded NFIB’s litigation.15

12 Todd Gaziano, Randy Barnett, & Nathaniel Stewart, the Personal Mandate to Buy Health Insurance Is Unprecedented and Unconstitutional, THE HERITAGE FOUNDATION (Dec. 9, 2009), available at https://ift.tt/33dTJbU; Josh Blackman, How Randy Barnett joined the constitutional challenge to Obamacare, THE VOLOKH CONSPIRACY (Sept. 10, 2013), http://volokh.com/2013/09/10/randy-barnett-joined-constitutional-challenge-obamacare/.

13 Josh Blackman, UNPRECEDENTED: THE CONSTITUTIONAL CHALLENGE TO OBAMACARE 44 (2013).

14 Id.

I’m not sure they actually read the book, but a citation is a citation.

When I wrote Unprecedented in 2013, I could not have fathomed that we would still be arguing about the constitutionality of Obamacare in the year 2020.

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