Bill Barr Crosses the Rubicon

For the first time in twenty years, the Justice Department is finally free to campaign for the encryption access bill it has always wanted.  Sens. Lindsey Graham (R-S.C.), Tom Cotton (R-Ark.), and Marsha Blackburn (R-Tenn.) introduced the Lawful Access To Encrypted Data Act. (Ars Technica, Press Release) As Nick Weaver points out in the news roundup, this bill is not a compromise. It’s exactly what DOJ wants – a mandate that every significant service provider or electronic device maker build in the ability, when served with a warrant, to decrypt any data it has encrypted.

In our interview, Under Secretary Chris Krebs, head of the Cybersecurity and Infrastructure Security Agency, drops in for a chat on election security, cyberespionage aimed at coronavirus researchers, why CISA needs new administrative subpoena authority, the value of secure DNS, and how cybersecurity has changed in the three years since he took his job.

Germany’s highest court has ruled that the German competition authority can force Facebook to obtain user consent for internal data sharing, to prevent abuse of a dominant position in the social networking market. Maury Shenk and I are dubious about the use of competition law for privacy enforcement. Those doubts could also send the ruling to a still higher forum – the European Court of Justice.

You might think that NotPetya is three years in the rear-view mirror, but the idea of spreading malware via tax software, pioneered by the GRU with NotPetya, seems to have inspired a copycat in China. Maury reports that a Chinese bank is requiring foreign firms to install a tax app that, it turns out, has a covert backdoor. (Ars Technica, Report, NBC)

The Assange prosecution is looking less like a first amendment case and more like a garden variety hacking conspiracy thanks to the government’s amended indictment. (DOJ, Washington Post) And, as usual, the more information we have about Assange, the worse he looks.

Jim Carafano, new to the podcast, argues that face recognition is coming no matter how hard the press and NGOs work to demonize it. And working hard they are. The ACLU has filed a complaint against the Detroit police, faulting them for arresting the wrong man based on a faulty match provided by facial recognition software. (Ars Technica, Complaint)

The Facebook advertiser moral panic is gaining adherents, including Unilever and Verizon, but Nick and I wonder if the reason is politics or a collapse in ad budgets. Whatever the cause, it’s apparently led Mark Zuckerberg to promise more enforcement of Facebook’s policies.

In short hits, the U.S. Department of Homeland Security sent a letter to chief executives of five large tech companies asking them to ensure social media platforms are not used to incite violence. Twitter has permanently suspended the account of leak publisher DDoSecrets. (Ars Technica, Cyber Scoop). Rep. Devin Nunes (R-Calif.) was told what he must have known when he filed his case: he cannot sue Twitter for defamation over tweets posted by a parody account posing as his cow. (Ars Technica, Ruling) Nick explains why it’s good news all around as Comcast partners with Mozilla to deploy encrypted DNS lookups on the Firefox browser. And Burkov gets a nine-year sentence for his hacking.

Download the 322nd Episode (mp3).

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.

 

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Three Risks For European Banks

Three Risks For European Banks

Tyler Durden

Tue, 06/30/2020 – 05:00

Authored by Daniel Lacalle,

The measures implemented by governments in the Eurozone have one common denominator: A massive increase in debt from governments and the private sector. Loans lead the stimulus packages from Germany to Spain. The objective is to give firms and families some leverage to pass the bad months of the confinement and allow the economy to recover strongly in the third and fourth quarter. This bet on a speedy recovery may put the troubled European banking sector in a difficult situation.

Banks in Europe are in much better shape than they were in 2008, but that does not mean they are strong and ready to take billions of higher risk loans. European banks have reduced their non-performing loans, but the figure is still large, at 3.3% of total assets according to the European Central Bank. Financial entities also face the next two years with poor net income margins due to negative rates and very weak return on equity.

The two most important measures that governments have used in this crisis are large loans to businesses partially guaranteed by the member states, and significant jobless subsidy schemes to reduce the burden of unemployment. Almost 40 million workers in the large European nations are under a subsidized jobless scheme, according to Eurostat and Bankia Research. Loans that add up to 6% of the GDP of the Eurozone have been granted to let businesses navigate the crisis. So, what happens if the recovery is weak and uneven and the third and fourth quarter growth figures disappoint, as I believe will happen? First, the rise in non-performing loans may elevate the total figure to 6% of total assets in the banking sector, or 1.2 trillion euros. Second, up to 20% of the subsidized unemployed workers will probably join full unemployment, which may increase the risk in mortgage and personal loans significantly.

Banks may face a tsunami of problems as three factors collide:

  1. rise in non-performing loans,

  2. deflationary pressures from a prolonged crisis and,

  3. central bank keeping negative rates that destroy banking profitability.

We estimate a rise in net debt to EBITDA of the largest corporations of the Stoxx 600 soaring to 3x from the current 1.8x. This means that banks may face a wall of delinquencies and weakening solvency and liquidity in the vast majority of their assets (loans) just as deflationary pressures hit the economy, growth weakens and the central bank implements even more aggressive but futile liquidity measures and damaging rate cuts.

This combination of three problems at the same time may generate a risk of a financial crisis created by using the balance sheet of banks massively to address the bailout of every possible sector. It may undo the entire improvement in the balance sheet of the financial entities achieved slowly and painfully in the past decade and destroy it in a few months.

Weakening the balance sheet of banks and hiding larger risk at lower rates in their balance sheets may be an extremely dangerous policy in the long run. Governments have pushed banks to give loans to businesses and families with very challenging financial conditions and this may come back like a boomerang and hit the European economy where 80% of the real economy is financed by the banking sector, according to the ECB.

Governments should have taken more prudent measures and address the covid-19 crisis with tax cuts and grants and not so much through massive loans, even if those are partially guaranteed by the states. If the sovereign debt crisis starts to creep again, there will be a fourth risk that may damage banks and the financing of the real economy.

The response of banks in this crisis has been positive but may be too much too soon and clearly, they are taking too much risk at too low rates. So far, financial entities are being prudent and have made large provisions to strengthen the balance sheet. However, these provisions may need to be doubled in the next quarters.

Taking measures to avoid creating a financial crisis from these extreme policies will be critical to avoid a larger problem in 2021-2022.

via ZeroHedge News https://ift.tt/2NE8agT Tyler Durden

Brickbat: Move Along Now

violin_1161x653

Video shows Aurora, Colorado, police using pepper spray to break up an apparently peaceful protest Saturday over the death of Elijah McClain, who died after officers placed him in a chokehold. The protest began early in the day. As night began to fall, a group of violinists began to play in honor of McClain, who was a violinist. But officers told the remaining protesters that it was now an “illegal gathering.” When they did not leave, the officers sprayed them with pepper spray.

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Brickbat: Move Along Now

violin_1161x653

Video shows Aurora, Colorado, police using pepper spray to break up an apparently peaceful protest Saturday over the death of Elijah McClain, who died after officers placed him in a chokehold. The protest began early in the day. As night began to fall, a group of violinists began to play in honor of McClain, who was a violinist. But officers told the remaining protesters that it was now an “illegal gathering.” When they did not leave, the officers sprayed them with pepper spray.

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‘Secure Our Future’ – Airbus CEO Warns Of Production And Job Cuts 

‘Secure Our Future’ – Airbus CEO Warns Of Production And Job Cuts 

Tyler Durden

Tue, 06/30/2020 – 04:15

“For the next two years – 2020/21 – we assume that production and deliveries will be 40% lower than originally planned,” Guillaume Faury, the chief executive officer of Airbus, told German national daily newspaper, Die Welt, on Monday, adding that output would normalize by 2025. 

Faury said the COVID-19 outbreak resulted in Airbus losing 40% of its civil aircraft business. He said that instead of planning for higher production of commercial aircraft, capacity in output and labor must be reduced as the aviation industry is facing the worst crisis in its history.

Airbus had announced previously it was slashing output by a third on average. We noted in March, Europe’s aerospace giant was expecting production cuts of its A330 output amid waning demand for its most popular wide-body airliner.

In April, Faury told employees in a memo seen by Reuters that the company is “bleeding cash” and needs cut costs to weather the coronavirus pandemic storm. 

“In April/May we were up to 80 % below our plan. Only 14 instead of 75 aircraft were delivered in April,” Faury said. “On the one hand, due to the travel restrictions, airline crews could not take delivery of their aircraft, on the other hand, there was no financial security at the airlines, but gradually it is getting better.”

Industry sources told Reuters a 40% cut in “single-aisle equivalent” output is expected to lead to layoffs and lower output capacity in jet making – the timing of the announcement could be in early July. 

Sources said 14,000 to 20,000 jobs could be eliminated – they also said the plan could be unveiled as early as Wednesday when Airbus has called an emergency session with its union. 

“It’s a brutal fact, but we must do it. It is about the necessary adjustment to the massive drop in production. It’s about securing our future,” Faury told Die Welt, while vaguely referring to restructuring details.

Faury doesn’t expect a recovery in output until 2025: 

“After market studies and discussions with the airlines, we assume that the previous volume will be back by 2025 at the latest. We expect that the demand for single-aisle aircraft will pick up faster than for the large-scale models. We therefore currently expect the A320 family to gradually increase production from 2022/2023. We anticipate low demand for wide-body aircraft over the next five years, as there was already an oversupply on the market before the crisis. At some point, a large replacement wave is expected for the Boeing 777 and the Airbus A330, but it is still a long way off,” he said.

Airbus shares have already retraced 61.8%-Fib from the low of 2009 (EUR 7.19) to the high (EUR 139.40) seen in January. 

Airbus CEO reiterated a similar warning that Boeing CEO Dave Calhoun made in April, indicating it would take 2 to 3 years for air travel growth to return to pre-corona levels, adding that long term growth trends could take even longer to recover. 

“Based on what we know now, we expect it will take two to three years for travel to return to 2019 levels and an additional few years beyond that for the industry’s long-term trend growth to return,” he said. 

To put things in perspective for readers, the world’s top commercial jet makers see no recovery in their business nor air travel for several years – the aviation industry supports 65.5 million jobs worldwide and supports $2.7 trillion (3.6%) of the world’s GDP. 

With Airbus and Boeing in the dumps, air travel collapsed, and the travel and tourism industry decimated – don’t expect a V-shaped recovery in the global economy anytime soon

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2022: A Vaccination Passport. The EU Keeps Quiet Over Suspicious Documents

2022: A Vaccination Passport. The EU Keeps Quiet Over Suspicious Documents

Tyler Durden

Tue, 06/30/2020 – 03:30

Authored by Daniele Pozzati via The Strategic Culture Foundation,

Surprise, surprise, the European Commission (EC) had a “Roadmap on Vaccination” ready months before the COVID-19 pandemic broke out.

The Roadmap should lead to a “commission proposal for a common vaccination card / passport for EU citizens by 2022”.

Last updated during the third quarter of 2019, the 10-page document was followed, on September 12th, by a “global vaccination summit” jointly hosted by the EC and the World Health Organization (WHO).

Under the header “Ten Actions Towards Vaccination for All – Everyone should be able to benefit from the power of vaccination”, the summit manifesto laments that:

“Despite the availability of safe and effective vaccines, lack of access, vaccine shortages, misinformation, complacency towards disease risks, diminishing public confidence in the value of vaccines and disinvestments are harming vaccination rates worldwide.”

And with them, arguably, the pharmaceutical companies’ profits.

In July 2017, for example, Italy made 12 vaccinations compulsory for children. In the aftermath, the prices of these very vaccines went up by 62%: from an average price per dose of € 14.02 up to € 22,74.

The global vaccination market is currently worth USD 27 billion a year. According to WHO estimates, it will reach USD 100 billion by 2025.

Since the EC-WHO global vaccination summit also discussed a renewed immunization agenda for 2030, the big pharma’s shareholders need not worry for the long-term performance of their stock.

One ought really not to “harm vaccination rates worldwide”.

The manifesto of the global vaccination summit goes on to list 10 “lessons (…) and actions needed towards vaccination for all”.

Each “lesson” is a gem of what the Italian neo-Marxist philosopher Diego Fusaro calls “the therapeutic capitalism”.

The wording is peremptory and leaves no room for nuance and debate. Adjectives such as “all” “everyone” “indisputably” abound. Statements in the conditional mood are absent.

More than a cautious, scientifically inspired and open-to-doubt plan of action, the tone – “to protect everyone everywhere”, “to leave no one behind” – is unsuitably messianic.

What about those who do not want to be “protected” that way? In Germany alone, roughly 10% of the whole population, or 8 million people, are strongly against a Corona vaccination.

But let’s look at what we can learn, so to speak, from these “lessons”.

Lesson 1 begins with: “Promote global political leadership and commitment to vaccination” – this seems what we are witnessing now, with governments worldwide suggesting that masks and social distancing will remain in place until a vaccine for Corona-Sars2 is found.

And what about those politicians who are against vaccinations?

Will their voters be told, as the EU budget commissioner Gunther Oettinger (in)famously did with Italian Lega voters in 2018, that “markets will teach them to vote for the right thing?”.

Will a new pandemic break out to teach people to vote for the right thing?

Lesson 4, “Tackle the root-causes of vaccine hesitancy, increasing confidence in vaccination,” looks like the blueprint for a major propaganda campaign, one that foresees – we read on the EU Roadmap on Vaccinations – the “development of e-learning training modules targeting GPs and primary healthcare providers focused on improving skills to address hesitant populations and promote behavioral change”.

Lesson 5, “Harness the power of digital technologies, so as to strengthen the monitoring of the performance of vaccination programs”, raises, in times of tracing apps and electronic wristbands, legitimate concerns over the further encroachment of technology in our lives – and bodies.

Which digital technologies are we talking about? Maybe a subcutaneous chip, like the one recently patented with the satanic-sounding number 060606 by the Bill and Melinda Gates Foundation?

Lesson 9 is, for the non-mainstream journalist, and for freedom of speech in general, the most threatening [the bolded type is mine]:

“Empower healthcare professionals at all levels as well as the mediato provide effective, transparent and objective information to the public and fight false and misleading informationincluding by engaging with social media platforms and technological companies.”

There we go: the fight against so-called Fake News is back. More work for Facebook’s self-appointed “Facts-Checkers”.

Fake News is of course Orwellian Newspeak for any non-aligned information, no matter its contents, origins and verifiability.

Indeed, the global vaccination manifesto provides no definition for “objective information”, or for “false and misleading information”.

If vaccines are as safe as the EU and WHO claim without offering any evidence, why then did the U.S. government create, already in the 1980’s, a body called National Vaccine Injury Compensation Program (VICP)?

To provide, we read in the VICP’s official website, “a no-fault alternative to the traditional legal system for resolving vaccine injury petitions.”

Quite successfully, it would seem.

In the period between 10/01/1988 (when the VICP begun awarding damage compensation) and 06/01/2020 (last available data), the VICP has awarded a total of USD 4,385,672,580.43 in compensation.

This figure excludes the compensation resulting from actual legal action, notably class actions, against Big Pharma.

But, as the Italian documentary-maker Massimo Mazzucco explains, the U.S. authorities did not stop there to protect Big Pharma from legal action.

In 2010, a landmark ruling by the U.S. Supreme Court quoted the U.S. Code Title 42 thus:

“The Act eliminates manufacturer liability for a vaccines unavoidable, adverse side effects.”

The same ruling further elaborates:

“No vaccine manufacturer shall be liable in a civil action for damages arising from vaccine-related injury or death associated with the administration of a vaccine after Oct.1, 1988…

…if the injury or death resulted from side-effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings”

1988 was of course the year in which the National Vaccine Injury Compensation Program begun awarding compensations to the victims of vaccine injury – sparing legal headaches to Big Pharma in the process.

As system biologist Dr. Shiva Ayyadurai points out, the impossibility to sue pharmaceutical companies over vaccines, combined with falling profits from drug sales, turned vaccines into Big Pharma’s new business model.

And now the EU and the Bill Gates-financed WHO go along with it.

“The government of the modern state,” Karl Marx famously wrote in his Communist Manifesto, “is but a committee for managing the common affairs of the whole bourgeoisie”.

Were Marx alive today, he might have concluded that governance by international organization is but a committee for managing the common affairs of the global elites.

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

How Long Will Europeans Work For?

How Long Will Europeans Work For?

Tyler Durden

Tue, 06/30/2020 – 02:45

Eurostat have released an interesting forecast about how long a person can expect to be active in the European labour market during his or her life.

The data is measured in years and it’s based on someone who was 15-years-old in 2019. On average, Statista’s Niall McCarthy notes that the expected duration of working life in the European Union was 35.2 years – 3.6 years longer than in 2000.

In individual member states, it ranges from 32 years in Italy to 42 years in Sweden…

Infographic: How Long Will Europeans Work For? | Statista

You will find more infographics at Statista

The data also includes several countries outside the EU and their figures are diverse.

In Turkey for example, a 15-year-old can expect a working life of 29.3 years. In Iceland, however, a 15-year-old can expect to work for far longer – 45.8 years in total. Elsewhere, the duration of work is estimated at 42.6 years in Switzerland and 39.8 years in Norway.

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The Chief Justices Battle over the Removal Power

Seila Law was the Court’s most significant separation of powers case since Noel Canning. Yet, this decisions is–at best–a symbolic victory for conservatives; not nearly enough to staunch the June gloom. I don’t think people will embroider “Overrule Humphrey’s Executor” on red baseball hats.

As a practical matter, this case will have little impact. Whether the President can fire the CFPB Director for cause, or at will, will not make much of a difference. (Had the broadly read the phrases “”inefficiency, neglect of duty, or malfeasance in office,” we could have see significant shifts in administrative law.) The more likely course is to simply wait for the Director’s five-year term to expire. Recall that President Trump chose not to fire Richard Cordray. (Conveniently, Cordray resigned to embark on a failed gubernatorial campaign.)

Perhaps the most significant–and rewarding–aspect of the case was the battle royale between the actual and de facto Chief Justices: John Roberts and Elena Kagan. They are the two leaders of the Court. And from my vantage point, the two best writers on the Court. It is a joy to read their prose.

Roberts writes with a level of surgical precision that every lawyer should emulate. There is seldom a wasted word. When I edit a Roberts opinion, there is very little to remove. He puts so much care and thought into every syllable. Meticulous and polished.

Kagan writes with a delightful conversational flair. I found myself chuckling at several of her quips. I adore her rhetorical questions:

  • What does the Constitution say about the separation of powers—and particularly about the President’s removal authority? (Spoiler alert: about the latter, nothing at all.)
  • The analysis is as simple as simple can be. The CFPB Director exercises the same powers, and receives the same removal protections, as the heads of other, constitutionally permissible independent agencies. How could it be that this opinion is a dissent?

I encourage people to emulate Roberts’s style. But don’t try to fake Kagan’s style. This type of wit cannot be forced. It must come naturally, and from within.

Justice Kagan name-dropped to great effect. In one spot, she relied on Justice Frankfurter’s attack on Chief Justice Taft’s Meyers decision:

Expressing veiled contempt as only he could, Justice Frankfurter wrote for the Court that Chief Justice Taft’s opinion had “laboriously traversed” American history and that it had failed to “restrict itself to the immediate issue before it.”No wonder Humphrey’s had “narrowly confined the scope of the Myers decision.” Justice Frankfurter implied that the “Chief Justice who himself had been President” was lucky his handiwork had not been altogether reversed.

Kagan referred to Taft as “a judicial presidentialist if ever there was one.”

Kagan criticized Roberts for misreading the FTC’s power. She name-dropped big names.

The majority’s reply that a court including Charles Evans Hughes, Louis Brandeis, Benjamin Cardozo, and Harlan Stone somehow misunderstood these powers lacks all plausibility

Roberts crushes on Chief Justice Hughes. That burn was personal.

Though, one name was surprisingly lacking in a case about the removal power: Scalia. In Bostock, the Justices fell over themselves to claim Nino’s mantle. But here, his famous dissent was barely mentioned. The majority didn’t cite Scalia’s dissent. And here is how Kagan described Morrison:

The Morrison Court, over a one-Justice dissent, upheld for-cause protections afforded to an independent counsel with power to investigate and prosecute crimes committed by high-ranking officials.

“A one-Justice dissent.” That’s it? Kagan previously praised Scalia’s writing in Morrison. But she did not praise its reasoning.

Justice Kagan also cited her famous article, Presidential Administration, twice. I previously criticized Justice Kavanaugh for citing himself. Here, the Kagan citations are against interest. In her article, she articulated a broad understanding of executive power. But in her Seila dissent, she defers to congressional limits on executive powers. Kagan was trying to signal that this dissent does not necessarily reflect her priors. Consider the cites:

And debates about the prudence of limiting the President’s control over regulatory agencies, including through his removal power, have never abated. FN1

FN1: In the academic literature, compare, e.g., Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2331–2346 (2001) (generally favoring presidential control over agencies), with, e.g., Strauss, Overseer, or “The Decider”? The President in Administrative Law, 75 Geo. Wash. L. Rev. 696, 704, 713–715 (2007) (generally favoring administrative independence).

She is contrasting her own work favoring presidential control, with Peter Strauss, who favors independence. Kagan makes this point later with a snappy signal:

The President’s engagement, some people say, can disrupt bureaucratic stag- nation, counter industry capture, and make agencies more responsive to public interests. See, well, Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2331–2346 (2001). At other times, the arguments favor greater independence from presidential involvement.

“Some people” is her. She says that. And then she rules in the opposite direction. Kagan But cf.‘d herself! (Justice Kavanaugh cited himself again in Agency for Int’l Development v. Alliance for Open Society–this time to Bluman v. FEC (D.D.C. 2011)).

Alas, Kagan flew too close to the rhetorical sun. In two spots, she made not-so-veiled attacks of President Trump. First, consider this comment about the Federal Reserve:

Insulation from political pressure helps ensure impartial adjudications. It places technical issues in the hands of those most capable of addressing them. It promotes continuity, and prevents short-term electoral interests from distorting policy. (Con- sider, for example, how the Federal Reserve’s independence stops a President trying to win a second term from manipulating interest rates.)

I wonder what President she could possibly be talking about?! Here, she is obviously alluding to the President’s never-ending badgering of the Fed to lower interest rates to help his re-election campaign. But her next barb in Footnote 11 was much worse.

Second, the majority complains that the Director’s five-year term may prevent a President from “shap[ing the agency’s] leadership” through appointments. Ante, at 24. But again that is true, to one degree or another, of quite a few longstanding independent agencies, including the Federal Reserve, the FTC, the Merit Systems Protection Board, and the Postal Service Board of Governors. (If you think the last is unimportant, just ask the current President whether he agrees.)

Here, Kagan is referring to the fact that Trump recently appointed a political donor to become the next Postmaster General. And, this appointment was closely related to Trump’s opposition to mail-in ballots. Of course, the Court already decided RNC v. DNC from Wisconsin. Moreover, Kagan broke the fourth-wall (or is it the third branch!?) by speaking to “the current President.” In Trump v. Hawaii, Roberts expressly distinguished “a particular” from “the Presidency itself.” I really wish Kagan dropped this line. It sullied an otherwise pitch-perfect dissent. I suspect Justice Breyer was not too keen about signing onto this footnote.

Kagan had one other topical reference, though it probably hit closer to home. In footnote 12, she discusses the Independent Counsel statute at issue in Morrison:

The majority, seeking some other way to distinguish Morrison, as- serts that the independent counsel’s “duties” were more “limited” than the CFPB Director’s. Ante, at 17–18. That’s true in a sense: All (all?) the special counsel had to do was decide whether the President and his top advisers had broken the law. But I doubt (and I suspect Presidents would too) whether the need to control those duties was any less “central to the functioning of the Executive Branch” than the need to control the CFPB’s.

Of course, Morrison did not involve an investigation of the President. But her former boss was investigated for years by Ken Starr. Another statement against interest.

One final detour. Roberts alluded, indirectly to special counsel Robert Mueller. He noted that the Office of Special Counsel (OSC, a federal investigatory agency) is different from the Special Counsel’s Office:

The OSC should not be confused with the independent counsel in Morrison or the special counsel recently appointed to investigate allegations related to the 2016 Presidential election. Despite sharing similar titles, those individuals have no relationship to the OSC

After sitting through the impeachment trial, I would have thought Roberts could have avoided this citation. But he didn’t.

I will have more to say about the specific moves in Seila Law in due course. Now, we wait. Opinions in about 7.5 hours.

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The Chief Justices Battle over the Removal Power

Seila Law was the Court’s most significant separation of powers case since Noel Canning. Yet, this decisions is–at best–a symbolic victory for conservatives; not nearly enough to staunch the June gloom. I don’t think people will embroider “Overrule Humphrey’s Executor” on red baseball hats.

As a practical matter, this case will have little impact. Whether the President can fire the CFPB Director for cause, or at will, will not make much of a difference. (Had the broadly read the phrases “”inefficiency, neglect of duty, or malfeasance in office,” we could have see significant shifts in administrative law.) The more likely course is to simply wait for the Director’s five-year term to expire. Recall that President Trump chose not to fire Richard Cordray. (Conveniently, Cordray resigned to embark on a failed gubernatorial campaign.)

Perhaps the most significant–and rewarding–aspect of the case was the battle royale between the actual and de facto Chief Justices: John Roberts and Elena Kagan. They are the two leaders of the Court. And from my vantage point, the two best writers on the Court. It is a joy to read their prose.

Roberts writes with a level of surgical precision that every lawyer should emulate. There is seldom a wasted word. When I edit a Roberts opinion, there is very little to remove. He puts so much care and thought into every syllable. Meticulous and polished.

Kagan writes with a delightful conversational flair. I found myself chuckling at several of her quips. I adore her rhetorical questions:

  • What does the Constitution say about the separation of powers—and particularly about the President’s removal authority? (Spoiler alert: about the latter, nothing at all.)
  • The analysis is as simple as simple can be. The CFPB Director exercises the same powers, and receives the same removal protections, as the heads of other, constitutionally permissible independent agencies. How could it be that this opinion is a dissent?

I encourage people to emulate Roberts’s style. But don’t try to fake Kagan’s style. This type of wit cannot be forced. It must come naturally, and from within.

Justice Kagan name-dropped to great effect. In one spot, she relied on Justice Frankfurter’s attack on Chief Justice Taft’s Meyers decision:

Expressing veiled contempt as only he could, Justice Frankfurter wrote for the Court that Chief Justice Taft’s opinion had “laboriously traversed” American history and that it had failed to “restrict itself to the immediate issue before it.”No wonder Humphrey’s had “narrowly confined the scope of the Myers decision.” Justice Frankfurter implied that the “Chief Justice who himself had been President” was lucky his handiwork had not been altogether reversed.

Kagan referred to Taft as “a judicial presidentialist if ever there was one.”

Kagan criticized Roberts for misreading the FTC’s power. She name-dropped big names.

The majority’s reply that a court including Charles Evans Hughes, Louis Brandeis, Benjamin Cardozo, and Harlan Stone somehow misunderstood these powers lacks all plausibility

Roberts crushes on Chief Justice Hughes. That burn was personal.

Though, one name was surprisingly lacking in a case about the removal power: Scalia. In Bostock, the Justices fell over themselves to claim Nino’s mantle. But here, his famous dissent was barely mentioned. The majority didn’t cite Scalia’s dissent. And here is how Kagan described Morrison:

The Morrison Court, over a one-Justice dissent, upheld for-cause protections afforded to an independent counsel with power to investigate and prosecute crimes committed by high-ranking officials.

“A one-Justice dissent.” That’s it? Kagan previously praised Scalia’s writing in Morrison. But she did not praise its reasoning.

Justice Kagan also cited her famous article, Presidential Administration, twice. I previously criticized Justice Kavanaugh for citing himself. Here, the Kagan citations are against interest. In her article, she articulated a broad understanding of executive power. But in her Seila dissent, she defers to congressional limits on executive powers. Kagan was trying to signal that this dissent does not necessarily reflect her priors. Consider the cites:

And debates about the prudence of limiting the President’s control over regulatory agencies, including through his removal power, have never abated. FN1

FN1: In the academic literature, compare, e.g., Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2331–2346 (2001) (generally favoring presidential control over agencies), with, e.g., Strauss, Overseer, or “The Decider”? The President in Administrative Law, 75 Geo. Wash. L. Rev. 696, 704, 713–715 (2007) (generally favoring administrative independence).

She is contrasting her own work favoring presidential control, with Peter Strauss, who favors independence. Kagan makes this point later with a snappy signal:

The President’s engagement, some people say, can disrupt bureaucratic stag- nation, counter industry capture, and make agencies more responsive to public interests. See, well, Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2331–2346 (2001). At other times, the arguments favor greater independence from presidential involvement.

“Some people” is her. She says that. And then she rules in the opposite direction. Kagan But cf.‘d herself!

Alas, Kagan flew too close to the rhetorical sun. In two spots, she made not-so-veiled attacks of President Trump. First, consider this comment about the Federal Reserve:

Insulation from political pressure helps ensure impartial adjudications. It places technical issues in the hands of those most capable of addressing them. It promotes continuity, and prevents short-term electoral interests from distorting policy. (Con- sider, for example, how the Federal Reserve’s independence stops a President trying to win a second term from manipulating interest rates.)

I wonder what President she could possibly be talking about?! Here, she is obviously alluding to the President’s never-ending badgering of the Fed to lower interest rates to help his re-election campaign. But her next barb in Footnote 11 was much worse.

Second, the majority complains that the Director’s five-year term may prevent a President from “shap[ing the agency’s] leadership” through appointments. Ante, at 24. But again that is true, to one degree or another, of quite a few longstanding independent agencies, including the Federal Reserve, the FTC, the Merit Systems Protection Board, and the Postal Service Board of Governors. (If you think the last is unimportant, just ask the current President whether he agrees.)

Here, Kagan is referring to the fact that Trump recently appointed a political donor to become the next Postmaster General. And, this appointment was closely related to Trump’s opposition to mail-in ballots. Of course, the Court already decided RNC v. DNC from Wisconsin. Moreover, Kagan broke the fourth-wall (or is it the third branch!?) by speaking to “the current President.” In Trump v. Hawaii, Roberts expressly distinguished “a particular” from “the Presidency itself.” I really wish Kagan dropped this line. It sullied an otherwise pitch-perfect dissent. I suspect Justice Breyer was not too keen about signing onto this footnote.

Kagan had one other topical reference, though it probably hit closer to home. In footnote 12, she discusses the Independent Counsel statute at issue in Morrison:

The majority, seeking some other way to distinguish Morrison, as- serts that the independent counsel’s “duties” were more “limited” than the CFPB Director’s. Ante, at 17–18. That’s true in a sense: All (all?) the special counsel had to do was decide whether the President and his top advisers had broken the law. But I doubt (and I suspect Presidents would too) whether the need to control those duties was any less “central to the functioning of the Executive Branch” than the need to control the CFPB’s.

Of course, Morrison did not involve an investigation of the President. But her former boss was investigated for years by Ken Starr. Another statement against interest.

One final detour. Roberts alluded, indirectly to special counsel Robert Mueller. He noted that the Office of Special Counsel (OSC, a federal investigatory agency) is different from the Special Counsel’s Office:

The OSC should not be confused with the independent counsel in Morrison or the special counsel recently appointed to investigate allegations related to the 2016 Presidential election. Despite sharing similar titles, those individuals have no relationship to the OSC

After sitting through the impeachment trial, I would have thought Roberts could have avoided this citation. But he didn’t.

I will have more to say about the specific moves in Seila Law in due course. Now, we wait. Opinions in about 7.5 hours.

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London Spins Out Of Control As Met Police Abandon Streets

London Spins Out Of Control As Met Police Abandon Streets

Tyler Durden

Tue, 06/30/2020 – 02:00

Authored by M.A.Richardson via TheDuran.com,

“The farther backward you can look, the farther forward you are likely to see.”

– Winston Churchill

Twenty-two police officers injured as Brixton party ends in violence

The US and Britain are at their most perilous point in one hundred years. Once stable democratic nation states made great through struggle and suffering to gain comparative freedom at huge sacrifice to their own population are throwing it all away.  The speed and ferocity of the attack is frightening, but this has been building for years, spreading from the 60s onwards through the university teaching  systems, unquestioned. It emerged into the public arena as political correctness as each generation of students became more radical. Then came the final push to silence opposition with wokism, virtue-signalling, identity politics, and now racial division, an aberration of democracy and freedom of speech.

The Trump presidency has been under a continual coup, even before taking office.  Involvement from the top down of Obama and his administration and security services is an inconvenience for the Democrats, and many Republicans feel the same. What it does show, is that at this moment in the history of the United States, the deep state are above the law. We are waiting for Attorney General Barr to prove otherwise, but since he has already stated it is unlikely that Obama or Biden will be called to testify, he has issued a free pass, move along, nothing to see. All is swept aside on a media tide of attacks on democracy and the rule of law by the radical left, as BLM take control and politicians scamper down rabbit holes trying to avoid the buckshot.  Those who control the media control the narrative, never more true than it is today, as truth becomes fiction and fiction fact.

History is no longer the ‘right’ history, facts are no longer facts but interpretations. Our language is corrupted by thought-speak and ‘wrong-thinking’. Intersectionality seeps through to the subconscious of the people as they are dissected, examined and re-assembled from parts into a whole, as independent thought lies discarded on the slab. The monster of BLM has screamed into the world, its children intent on destroying everything that will not acknowledge them, blind, unreasoning, malicious, merciless, they search for the meaning of their own existence and find nothing but their own image staring back from an iPhone.

We are at the turning point. All opposition is being de-platformed, demonetised and silenced by the tyranny of the social media monopolies of Google, Facebook, Twitter, in the great lurch left to totalitarianism.

Our language has been acquired, repossessed and annexed, a grand and despicable M&A, dismembered, rendered useless and sold off to the corporates and big tech.  They are laying off the workforce whom they consider obsolete and no longer useful for their purposes. The world has turned on its dark side, an unrecognisable corruption of reality.  Boris Johnson is presiding over a shift into anarchy. The Labour party cannot win through the ballot box, the BLM are useful to them. The radical left have co-opted and subjugated the old left, they are one and the same, because disorder and destruction are their only route to power, and they are taking it.

As temperatures rise and unrest spreads, London is braced for another week of anarchy.  A combination of  Covid-19 restrictions, a hands-off police policy, and subsequent breakdown of law and order follows years of devolution of police enforcement powers to local authorities, and pushes London towards breakdown.  Sadiq Khan, Mayor of London, has announced funding cuts to an already undermanned and demoralised front line police force of £110 million over the next 2 years, #BLM defund the police. The country is undergoing a communist insurrection, a cultural marxist revolution indulged and endorsed by the elites. Far left racial divisionists and mainstream media incite violence, pushing the marxist agenda, whilst the rest of the population is so punch- drunk with the speed of the takeover, it does not even recognise that it is about to hit the canvas.

THE TYRANNY OF BLM

BLM is a marketing exercise by the three founders, all trained radical Marxists.  Alicia Garza, Opal Tometi, and Patrisse Cullors. The public have been played.  No sympathy there. If you put your name or your money to a cause, the least you can do is look it up and see what you are supporting and find out what is behind the hype. Follow the money.

There is bet-hedging from ‘left-light’ political commentators who are afraid to declare the emperor has no clothes. They advocate that it is not BLM and the rise of cultural marxism that we should be worried about, but the rise of the far-right in reaction to it.  The far-right, or simply put, anyone who sees BLM for what they are, a cultural marxist totalitarian power-grab, are not the ones that require people to kneel before them, pull down and deface statues, injure police, the public and public property. BLM are the ones inciting riots through racial division, bullying small children,  calling to abolish the police, and end capitalism and the family. It is time to get off the bench and stop trying to play both sides of the field. It is cowardly and will end in your own demise as all is swept aside by the mob. Come the revolution, and it is coming, you want to know who will hold the line with you and who will run, so best to find out now.

BULLY

At a party in Harrow Road London this week, police were pelted with objects and prevented from entering the area by youths shouting “you’re not coming in”  The police released a statement:

“Following engagement within the local community we are hopeful that crowds are dispersing.”

A quick look on Google translate will tell you this means –they threw stuff at us, so we left’

The message is, don’t bother to call the council or the police, your neighbourhood is now run by youth mobs. The hardest hit by this lawlessness are in the poorest communities, in the council blocks, the housing association accommodation.  The gentrified can sell up and ship out with their kids, the same kids advocating and encouraging the cultural revolution and racial division that is destroying London. The same kids that will be the politicians of tomorrow.

Local authorities have the power to issue ASBOs (Anti-Social Behaviour Orders) noise abatement orders, and to seize equipment, but in most instances do not have the manpower or the resources to do so. They are the front line community police for out of control raves and parties, and they are the ones that engage with the local community and youth offenders and understand what is happening on the ground.  Most no longer operate ‘out of hour services’ which is a nonsense, since that is exactly the time they are needed. All that can be done is for a complaint to be lodged after the fact. The police rarely engage with locals, instead they have a faceless, distant, centralised Met police call centre.

Parliament have made mass gatherings and peaceful protests unlawful for the moment, but there is an exception.   Northumbria police issued this statement yesterday:

“We’ll be in attendance to facilitate a planned Black Lives Matter vigil at Keel Square in #Sunderland tonight.  A Section 14 order is in place forbidding any other public assembly, including counter-protests, to ensure the public’s safety.” – Northumbria Police

This was echoed yesterday in London as more subsets of BLM demonstrators were allowed into central London in a  Black Trans Lives Matter rally. Thousands of activists marched through central London in place of Pride celebrations that had been cancelled due to Covid-19 health fears. Banners of “White silence is violence” were held above the crowd, and a sign outside Parliament defaced, crossing out ‘Parliament’ and replacing it with “racists”. The law is no longer applied equally. Radical left marxists running BLM take over the centre of London each weekend and grow emboldened, realising the law does not apply to them.

London 16 Jun 2020:

“MPs have unanimously approved the Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No.3) Regulations 2020. This new law bans mass gatherings in London in a fight to stop the spread of the deadly virus”

In Westminster, the government in their elite London bubble, seem unwilling to admit to the sense of unease amongst the public as law-abiding citizens are beginning to wonder if they even cares, They know that Sadiq Khan is intent on causing as much pain as he can to the population of London.  It is likely the police will abandon the streets if a serious riot breaks out.  Londoners see this as a real possibility, it has happened before.

The last sustained rioting across London was sparked by the death of Mark Duggan in 2011. This saw disaffected youths vandalising property, looting, and assaulting people. Police were unable to respond to the speed of the rioting or to the numbers on the streets. The disorder spread to other parts of the UK and showed the power of social media to ignite and inflame tensions.  An astonishing 3,000 people were arrested and 1,000 criminal charges brought for various crimes related to the riots. It was anarchy.  There were 5 deaths and 16 injured as a direct result.

These riots are still fresh in the mind due to their speed and ferocity and the opportunistic and senseless nature of the crimes committed.  The same atmosphere is building, this time based on the BLM righteous rage and racial division agenda. If the police cannot shut down a party, they cannot contain a riot.

The BLM construct lights a fire under race relations, deliberately so. The law-abiding citizen is unprotected and demonised.  It is woke politics on steroids.

“Developing and delivering training, police monitoring and strategies for the abolition of police.”    –  gofundmeUK BLM 

BLM has seeped into all aspects of our lives, online, onto the streets and into the language. It is a very aggressive form of indoctrination and advertising, it is impossible to get away from on any media platform, television, radio, advertising and is being relentlessly pushed by corporates.  The premise is, if you are white you are a racist. BLM is controlling the news narrative.  The British and American public are under attack by a cult largely endorsed by their governments who, instead of defending the people that voted them into power, take the side of the mob.

We are living through a transition to totalitarianism. The attacks are coming in waves, each wave growing in intensity, consuming and feeding off the last. They carry with them the worst disruptors of society of which there are many. They are active at demonstrations,  as trained jihadists infiltrate and disrupt alongside Antifa and BLM activists.

In America, heavily armed populist militia groups are growing and forming a coalition with the police, preparing for the fight-back.  In the UK, there is no second amendment right to bear arms, so citizens are at the mercy of government policy.  The police and government are working against their own people, the only way to fight back is to move out and find relative safety, this is what is happening in London.

Left wing councils all over the UK are forcing agreement to marxist agenda. This is a battle between the people vs the elite political class. There is deep suspicion of all that they represent, government, corporate, education, media, church, all seem designed to silence those they claim to represent and to further their own, centralised globalist ideology. BLM are just another branch of this elite. This is Groundhog Day, the same argument that was played out after the Brexit referendum, that democracy does not matter, this is just the next battle in a far more extreme, pervasive and corrupt form.

This is a race war incited by woke identity politics, facilitated by middle class white malcontents and snowflakes, overindulged by their parents and allowed to continue tantrums far beyond their teens, encouraged and enabled by neoliberal university educators and group-think on social media. It is an assault on the soul of nations, aided by domestic terrorists with the blessing of big government. It is the opposite of the spirit of Brexit, the opposite of independent thought. It is against the rule of law, the constitution, it is the destruction of the West by a decadent and controlling elite completely out of touch with its own people.

On television, white primary school kids are humiliated and confused as they are asked to explain their white privilege.  This is the ultimate endorsement of bullying by a political elite.  BLM have ignited a race war, it is being played out in schools, on the streets and in the political arena, we are being told we must ‘see colour’, to actively encourage division by colour. There is no room for discussion or debate with this hypersensitive Facebook generation who are incapable of having an opinion unless it is ‘liked’ by consensus. Racial profiling is being endorsed across all mainstream media platforms.

Both Britain and America have governments that are weak and vulnerable, both countries are ripe for the taking. Shaun King could not have staged this uprising more skilfully, no doubt he has a strong hand in this and directs from his throne at Harvard Law School. Sadiq Khan and Cressida Dick do his bidding.

Norman Brennan, Director of the Law and Order Foundation, on Talk Radio London said of the anarchy in Britain:

“We are barely able to police everyday issues. We have lost 22,000 officers, 4,000 of them in the Met. Just look how that has depleted backing up their own colleagues dealing with any public disorders that we are beginning to see on our streets, almost daily now. It’s embarrassing, I feel for my colleagues. In thirty-one years of policing I can’ t recall a single time that I ran away from an incident. A). I knew I would be getting back-up and B). we had this sort of fearlessness amongst us that the criminal element were not allowed to run riot, they were not allowed to rule the streets. That’s our job, and we rule the streets on behalf of society. What the Commissioner does {Cressida Dick}, and she does it all the time, is to close it down, you can see her political stance.

What public order incident that breaks out on the streets, most probably in London,  is going to ignite wide scale public disorder throughout Britain? It takes one. At this moment in time, it’s like a litmus paper. Which incident is going to light it?”

BLM can only feel encouraged, just like a spoilt child testing how far they can go until the adult in the room says, no more.  The problem is, there are no adults in the room.

Boris Johnson and Priti Patel are full of platitudes, but they do nothing. This is no longer a Conservative party that are strong on public order, this is a Conservative Party far left of Tony Blair.  A party out of touch with its core voters, so much so that all it can do is steal the ideas from another party to win an election, as it did from Nigel Farage and the Brexit Party in 2019.  It seems to think that to deliver on Brexit is enough, but this terrible unease that has come over the country is at boiling point, as the law-abiding citizen is chastised and knocked back into silence again and again.

In London, you can feel the tension on the ground, simmering, mostly unsaid, but it is there. The elites in the London bubble don’t see this, and so it festers. They have no sense of place, only a sense of self.  For them it is an experiment in socialism, for the public it is a crisis. When a country has to take up arms to protect itself, will such a diversity of communities, such disparity in wealth, of ideas, of religions, be able to come together to defeat the enemy?  Will it even be able to identify who that enemy is when the government and their agencies, so contemptuous of the public, and yet so naive themselves, cannot.  That question will be answered soon.  The public will get no help, the elites have chosen to go to war against their own people. They have taken to a serpent to their bosom, an insidious viper that is sowing the seeds of racial unrest.  It is a construct by forces wishing to subvert and cause pain and to take power over those already weak and demoralised from Covid-19.  A woke, cultural revolution of media and government institutions against all that the British public hold dear.

“I believe that the mainstream media in Britain are stoking and inciting people to be disorderly on the streets of Britain. It’s almost as though they would love it if there were wide-scale public disorder.” – Norman Brennan

More than this, it is the aim of BLM, Antifa and the increasingly marxist socialist left, many of whom preside in Westminster, to cause exactly that.  The public are at this very moment being beaten into submission.

Anyone who lives in London becomes streetwise very fast, and stories of citizens being marched to an ATM at knife point are common. These are not petty crimes.  In one of the largest local authorities in London run by a Labour council for many years, their crime enforcement team has been reduced to 4 for a population of approx 324,000. The need by government to reduce perceived crime has led to such madness. This hollows out the middle class who are moving away from London as they feel it is no longer a safe place to live or raise children. Judging from the battles in some of the most gentrified and highly-priced boroughs in London, they are right.

Whilst most citizens are still under restrictions in ‘bubbles’ of social contact, others are totally immune to either enforcement or prosecution. Priti Patel talks tough but if she were serious, she would fire Cressida Dick. Alongside Sadiq Kahn, the marxist agitator who despises his own country, they are killing London, without law and order on the streets, and law and order applied equally, there is nothing. They are poisonous.

This overtly racist tribalist drive to divide the cities is yet another realignment of the elites. Those outside the London bubble indoctrination zone are not buying into any of this and grow more sceptical by the day.  This is a choice. You chose civilisation, free speech, the constitution and the rule of law, you defend it vociferously, or you let it all crumble to dust and be taken over by the radical left, who will have power over you until death.

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