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Supreme Court Upholds Broad Reading of Clean Water Act

Today the Supreme Court gave environmental groups a surprise victory in Maui v. Hawaii Wildlife Fund.  Writing for a six-justice majority, Justice Breyer explained that the Clean Water Act requirement of a permit for discharging pollutants into waters of the United States applies not only to direct discharges from point sources, but also the “functional equivalent” of direct discharges. As readers may recall, environmental groups had tried to settle the Maui case due to their fear of an adverse ruling limiting the CWA’s permitting requirements. Instead they got about as good a results as they could have hoped for.

Justice Breyer’s opinion was joined by the Chief Justice, and Justices Ginsburg, Sotomayor, Kagan, and Kavanaugh. Justice Kavanaugh also wrote a separate concurring opinion. Justices Alito and Thomas authored dissents, the latter of which was joined by Justice Gorsuch.

Justice Breyer’s opinion begins with a decent summary of the case and holding. So here it is:

The Clean Water Act forbids the “addition” of any pollutant from a “point source” to “navigable waters” without the appropriate permit from the Environmental Protection Agency (EPA). Federal Water Pollution Control Act, §§301(a), 502(12)(A), as amended by the Federal Water Pollution Control Act Amendments of 1972 (Clean Water Act) §2, 86 Stat. 844, 886, 33 U. S. C. §§1311(a), 1362(12)(A). The question presented here is whether the Act “requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source,” here, “groundwater.” Pet. for Cert. i. Suppose, for example, that a sewage treatment plant discharges polluted water
into the ground where it mixes with groundwater, which, in turn, flows into a navigable river, or perhaps the ocean. Must the plant’s owner seek an EPA permit before emitting the pollutant? We conclude that the statutory provisions at issue require a permit if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters.

In one sense, Justice Breyer’s opinion may be seen as a “Goldilocks” formulation in that there was broad agreement that the U.S. Court of Appeals for the Ninth Circuit had articulated an overbroad conception of CWA jurisdiction, but that the alternatives offered by the petitioners (and the Trump Administration) were too narrow. By roping in the “functional equivalent” of direct discharges from point sources, the Court ensured the CWA reaches many identifiable sources of water pollution and makes it more difficult for potentially regulated firms to evade the Act’s permitting requirements through strategic behavior.

Although this precise formulation was not offered in any of the party briefs, Justice Breyer repeatedly raised the “functional equivalent” formulation as a potential way to resolve the case at oral argument.

JUSTICE BREYER: I was looking for something, which I’m not wedded to the one I
said, but I’m looking for something that does give the EPA some leeway on this but doesn’t go as far as what traceability and causation do, which seem to say the sky’s the limit. And . . . that’s what I’m looking for. . . .

In his opinion Justice Breyer acknowledged that this test is a bit fuzzier than the alternatives proposed by the parties, but nonetheless concluded that inclusion of the “functional equivalent of a direct discharge” “captures, in broad terms, those circumstances in which Congress intended to require a federal permit.” Further, Justice Breyer explained, regulatory and judicial guidance would help clarify the precise scope of the term over time. As he wrote near the close of his opinion:

In sum, we recognize that a more absolute position, such as the means-of-delivery test or that of the Government or that of the Ninth Circuit, may be easier to administer. But, as we have said, those positions have consequences that are inconsistent with major congressional objectives, as revealed by the statute’s language, structure, and purposes. We consequently understand the permitting requirement, §301, as applicable to a discharge (from a point source) of pollutants that reach navigable waters after traveling through groundwater if that discharge is the functional equivalent of a direct discharge from the point source into navigable waters.

One other note about Breyer’s opinion is that the Court did not engage in any real Chevron analysis. Although the precise meaning of the relevant statutory language was at least somewhat ambiguous as to its precise application, he noted that he government did not ask for Chevron deference, and there was thus no reason to give it. From his opinion:

Neither the Solicitor General nor any party has asked us to give what the Court has referred to as Chevron deference to EPA’s interpretation of the statute. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 844 (1984). Even so, we often pay particular attention to an agency’s views in light of the agency’s expertise in a given area, its knowledge gained through practical experience, and its familiarity with the interpretive demands of administrative need. See United States v. Mead Corp., 533 U. S. 218, 234–235 (2001); Skidmore v. Swift & Co., 323 U. S. 134, 139–140 (1944). But here, as we have explained, to follow EPA’s reading would open a loophole allowing easy evasion of the statutory provision’s basic purposes. Such an interpretation is neither persuasive nor reasonable.

Justice Kavanaugh wrote a separate concurrence to emphasize his view that the Court’s Maui decision is consistent with Justice Scalia’s interpretation of the CWA in Rapanos v. United States, and that any “vagueness” in the meaning of the relevant statutory langauge is a function of Congress’s formulation, not the Court’s opinion. Wrote Kavanaugh, “The Court’s opinion seeks to translate the vague statutory text into more concrete guidance.”  Kavanaugh’s emphasis on Scalia’s Rapanos opinion is potentially important, as it seems to indicate that Kavanaugh’s embrace of a broad understanding of what constitutes a “discharge from” a point source does not require an equally broad conception of what constitutes “waters of the United States.” In other words, joining Justice Breyer here hardly precludes Kavanaugh from voting to uphold the Trump Administration’s WOTUS rule.

Justice Thomas, joined by Justice Gorsuch, stressing the statute’s text. According to Thomas, the CWA prohibits the discharge of pollutants from point sources, not from what the EPA or the courts might believe are the “functional equivalent” of such sources. The latter, Justice Thomas argued, is necessarily derived from “an open-ended inquiry into congressional intent and practical considerations,” whereas he “would adhere to the text.” As Justice Thomas concluded:

The best reading of the statute is that a “discharge” is the release of pollutants directly from a point source to navigable waters. The application of this interpretation to the undisputed facts of this case makes a remand unnecessary. Petitioner operates a wastewater treatment facility and injects treated wastewater into four underground injection control wells. All parties agree that the wastewater enters groundwater from the wells and does not directly enter navigable waters. Based on these undisputed facts, there is no “discharge,”

Interestingly enough, Justice Thomas agreed with the majority that Chevron deference was not due the agency’s interpretation, and took the opportunity to repeat his criticism of the doctrine.

I agree that the EPA’s interpretation is not entitled to deference for at least two reasons: No party requests it, and the EPA’s reading is not the best one. . . . I add only that deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), likely conflicts with the Vesting Clauses of the Constitution.

Justice Alito also wrote a separate dissent urging a narrower textual interpretation of the statute. While the two dissents both rejected the broad reading offered by the majority, they differed on some particulars. Among other things, the two opinions disagree on the import of the words “any” and “addition,” and (in Justice Alito’s view) this could lead to Justice Thomas’s interpretation excluding some discharges that should be covered under the Act.

The Maui case is important, but it’s hardly the last word on CWA jurisdiction. The Court remanded the case back to the Ninth Circuit, and there are several cases in various stages of litigation that will now have to apply the Court’s new test.  At the same time, litigation over the proper definition of “waters of the United States” is ongoing, so it’s likely the Supreme Court will revisit the scope of CWA regulation in the not-too-distant future.

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Supreme Court Upholds Broad Reading of Clean Water Act

Today the Supreme Court gave environmental groups a surprise victory in Maui v. Hawaii Wildlife Fund.  Writing for a six-justice majority, Justice Breyer explained that the Clean Water Act requirement of a permit for discharging pollutants into waters of the United States applies not only to direct discharges from point sources, but also the “functional equivalent” of direct discharges. As readers may recall, environmental groups had tried to settle the Maui case due to their fear of an adverse ruling limiting the CWA’s permitting requirements. Instead they got about as good a results as they could have hoped for.

Justice Breyer’s opinion was joined by the Chief Justice, and Justices Ginsburg, Sotomayor, Kagan, and Kavanaugh. Justice Kavanaugh also wrote a separate concurring opinion. Justices Alito and Thomas authored dissents, the latter of which was joined by Justice Gorsuch.

Justice Breyer’s opinion begins with a decent summary of the case and holding. So here it is:

The Clean Water Act forbids the “addition” of any pollutant from a “point source” to “navigable waters” without the appropriate permit from the Environmental Protection Agency (EPA). Federal Water Pollution Control Act, §§301(a), 502(12)(A), as amended by the Federal Water Pollution Control Act Amendments of 1972 (Clean Water Act) §2, 86 Stat. 844, 886, 33 U. S. C. §§1311(a), 1362(12)(A). The question presented here is whether the Act “requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source,” here, “groundwater.” Pet. for Cert. i. Suppose, for example, that a sewage treatment plant discharges polluted water
into the ground where it mixes with groundwater, which, in turn, flows into a navigable river, or perhaps the ocean. Must the plant’s owner seek an EPA permit before emitting the pollutant? We conclude that the statutory provisions at issue require a permit if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters.

In one sense, Justice Breyer’s opinion may be seen as a “Goldilocks” formulation in that there was broad agreement that the U.S. Court of Appeals for the Ninth Circuit had articulated an overbroad conception of CWA jurisdiction, but that the alternatives offered by the petitioners (and the Trump Administration) were too narrow. By roping in the “functional equivalent” of direct discharges from point sources, the Court ensured the CWA reaches many identifiable sources of water pollution and makes it more difficult for potentially regulated firms to evade the Act’s permitting requirements through strategic behavior.

Although this precise formulation was not offered in any of the party briefs, Justice Breyer repeatedly raised the “functional equivalent” formulation as a potential way to resolve the case at oral argument.

JUSTICE BREYER: I was looking for something, which I’m not wedded to the one I
said, but I’m looking for something that does give the EPA some leeway on this but doesn’t go as far as what traceability and causation do, which seem to say the sky’s the limit. And . . . that’s what I’m looking for. . . .

In his opinion Justice Breyer acknowledged that this test is a bit fuzzier than the alternatives proposed by the parties, but nonetheless concluded that inclusion of the “functional equivalent of a direct discharge” “captures, in broad terms, those circumstances in which Congress intended to require a federal permit.” Further, Justice Breyer explained, regulatory and judicial guidance would help clarify the precise scope of the term over time. As he wrote near the close of his opinion:

In sum, we recognize that a more absolute position, such as the means-of-delivery test or that of the Government or that of the Ninth Circuit, may be easier to administer. But, as we have said, those positions have consequences that are inconsistent with major congressional objectives, as revealed by the statute’s language, structure, and purposes. We consequently understand the permitting requirement, §301, as applicable to a discharge (from a point source) of pollutants that reach navigable waters after traveling through groundwater if that discharge is the functional equivalent of a direct discharge from the point source into navigable waters.

One other note about Breyer’s opinion is that the Court did not engage in any real Chevron analysis. Although the precise meaning of the relevant statutory language was at least somewhat ambiguous as to its precise application, he noted that he government did not ask for Chevron deference, and there was thus no reason to give it. From his opinion:

Neither the Solicitor General nor any party has asked us to give what the Court has referred to as Chevron deference to EPA’s interpretation of the statute. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 844 (1984). Even so, we often pay particular attention to an agency’s views in light of the agency’s expertise in a given area, its knowledge gained through practical experience, and its familiarity with the interpretive demands of administrative need. See United States v. Mead Corp., 533 U. S. 218, 234–235 (2001); Skidmore v. Swift & Co., 323 U. S. 134, 139–140 (1944). But here, as we have explained, to follow EPA’s reading would open a loophole allowing easy evasion of the statutory provision’s basic purposes. Such an interpretation is neither persuasive nor reasonable.

Justice Kavanaugh wrote a separate concurrence to emphasize his view that the Court’s Maui decision is consistent with Justice Scalia’s interpretation of the CWA in Rapanos v. United States, and that any “vagueness” in the meaning of the relevant statutory langauge is a function of Congress’s formulation, not the Court’s opinion. Wrote Kavanaugh, “The Court’s opinion seeks to translate the vague statutory text into more concrete guidance.”  Kavanaugh’s emphasis on Scalia’s Rapanos opinion is potentially important, as it seems to indicate that Kavanaugh’s embrace of a broad understanding of what constitutes a “discharge from” a point source does not require an equally broad conception of what constitutes “waters of the United States.” In other words, joining Justice Breyer here hardly precludes Kavanaugh from voting to uphold the Trump Administration’s WOTUS rule.

Justice Thomas, joined by Justice Gorsuch, stressing the statute’s text. According to Thomas, the CWA prohibits the discharge of pollutants from point sources, not from what the EPA or the courts might believe are the “functional equivalent” of such sources. The latter, Justice Thomas argued, is necessarily derived from “an open-ended inquiry into congressional intent and practical considerations,” whereas he “would adhere to the text.” As Justice Thomas concluded:

The best reading of the statute is that a “discharge” is the release of pollutants directly from a point source to navigable waters. The application of this interpretation to the undisputed facts of this case makes a remand unnecessary. Petitioner operates a wastewater treatment facility and injects treated wastewater into four underground injection control wells. All parties agree that the wastewater enters groundwater from the wells and does not directly enter navigable waters. Based on these undisputed facts, there is no “discharge,”

Interestingly enough, Justice Thomas agreed with the majority that Chevron deference was not due the agency’s interpretation, and took the opportunity to repeat his criticism of the doctrine.

I agree that the EPA’s interpretation is not entitled to deference for at least two reasons: No party requests it, and the EPA’s reading is not the best one. . . . I add only that deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), likely conflicts with the Vesting Clauses of the Constitution.

Justice Alito also wrote a separate dissent urging a narrower textual interpretation of the statute. While the two dissents both rejected the broad reading offered by the majority, they differed on some particulars. Among other things, the two opinions disagree on the import of the words “any” and “addition,” and (in Justice Alito’s view) this could lead to Justice Thomas’s interpretation excluding some discharges that should be covered under the Act.

The Maui case is important, but it’s hardly the last word on CWA jurisdiction. The Court remanded the case back to the Ninth Circuit, and there are several cases in various stages of litigation that will now have to apply the Court’s new test.  At the same time, litigation over the proper definition of “waters of the United States” is ongoing, so it’s likely the Supreme Court will revisit the scope of CWA regulation in the not-too-distant future.

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The “Easy Game” Is Over – COVID-19 Is The Catalyst Against Passive-Investing

The “Easy Game” Is Over – COVID-19 Is The Catalyst Against Passive-Investing

Authored by Lance Roberts via RealInvestmentAdvice.com,

Passive investing has eaten active management’s lunch for decades. Its market share has grown steadily, capturing disproportionate amounts of inflows and allocation changes. Backed by scores of academic research, passive investing is pitched as a way to earn market returns with drastically lower fees. Why pay up for active managers if they can’t consistently beat the S&P 500? However, this secular phenomenon might have created an “easy game” from which the astute active manager can (finally) profit. Fallout from the coronavirus (COVID-19) response could give us a preview.

Easy Games

In many ways, professional investing is a unique industry. Manager performance is not only judged against peers with whom they directly compete, but with whom they directly transact. In fact, these interactions are the source of profit and loss. You just don’t see this in many other industries. True, Coke and Pepsi are fierce competitors, but their profits come from third parties (i.e. customers), not each other. Coke doesn’t buy or sell anything from or to Pepsi, and vice versa.

This dynamic—whereby profits come from other participants—likens it to poker. The analogy is quite useful sometimes. Other times, however, if can be harmful. Michael Mauboussin’s “easy game” analogy is a case of the former.

The value proposition of investment funds is providing superior returns. Superior returns to what? Well, other investment options. Said simply, gains are made by buying low and selling high. Thus, there must be another investor on each leg of the trade. Here’s where investing resembles a game of poker since generating relative (excess) returns are zero-sum. According to Mauboussin:

“Active managers must believe in differential skill to justify their existence. Recall the poker metaphor. You want to join the game only if you are more skilled than some of the other players and hence can expect to take their money. In markets as in poker, excess gains and losses net to zero. For you to win, someone has to lose on the other side of the trade.”

Michael J. Mauboussin, Dan Callahan, CFA, and Darius Majd, Looking for Easy Games: How Passive Investing Shapes Active Management

To win the most money in poker, it helps to be the best player at the table. Don’t be the pasty. According to Mauboussin, studies show that individual investors tend to lose to institutions. The latter are the card sharks feasting upon the retail patsies succumbing to a laundry list of behavioral biases. It’s an easy game for the professional to win.

One Door Shuts, Another One Opens

The proliferation of passive investing turned the investment management industry on its head. Investors (both retail and institutional) fired their expensive active managers (or themselves) in favor of cheaper passive investment vehicles. Thus, there are simply fewer traders now. As the number of participants shrink, so too does the pool of patsies. As a result, there’s less “alpha” available.

This creates an interesting dynamic. The investing skill level is significantly up. It’s no longer an “easy game”, at least compared to its prior form. But like all industries undergoing disruption, when one door shuts, another one opens.

What’s So Easy About Passive

While the competitive landscape of investing drastically shifted, the fundamentals have not. It’s still about buying low and selling high. However, the motives of buyers and sellers have changed. Ace still trumps jack irrespective of the players’ strategies. Perhaps a few adaptations can make active management an easy game again.

Passive investing vehicles are rigidly algorithmic, transparent, and simple. These attributes make them an easy game candidate. No matter how complex the strategy, each investment action reduces to: Did money come in? If so, then buy according to the published rule. Did money go out? If so, then sell according to the published rule.

Thus, you know exactly how each passive investment vehicle will transact in the presence of a capital flow—what it will buy and what it will sell given a set of conditions. There is zero mystery, which is actually part of their allure. This lack of discretion creates an opportunity to front-run passive investments if you can properly forecast their flows. Thus, this once touted advantage could become their greatest weakness.

The Demographic Shift

From what I can tell, no one has analyzed the market structures of passive investing more than Mike Green, a partner and the Chief Strategist at Logica Capital Advisers. Fortunately for us, Green has shared his findings in a number of public interviews (most notably here, here, and here).

Green believes that the regulatory framework incentivizes passive investing in retirement accounts. Thus, these vehicles benefited from decades of inflows, which in turn helped buoy prices. Remember: Cash in, then buy. Thus, the mere act of saving for retirement helped inflate investment values.

“The idea that passive players are passive players is just completely absurd. What they are is active players that have super, super simple rules and a massive regulatory advantage. … Passive is assuming that they’re not having any influence on that next price but they have to be because they are transacting.”

Mike Green, The Acquirers Podcast (Ep. 55)

However, this trend may now be reversing. Baby Boomers are the first generation to have defined contribution retirement accounts (401(k)s, IRAs, etc.). They are now at the age that legally mandates distributions—i.e. they have to sell. Thus, we are at the beginning of a demographic shift from buying passive investments to selling them! Remember the algorithm: Money out, then sell.

“The rule is constructed … that once you turn 70.5, you have to start taking distributions. The baby boomers are the first generation that had 401(k)s and IRAs as their primary mode of retirement vehicles. The generations that came before them had defined benefit plans. … The year they just turned 70.5 is 2017, the year after that is actually when they had to first start selling. That, in my estimation, is what happened in 2018, is that we saw large supply that occurred in the fourth quarter of 2018.”

Mike Green, The Acquirers Podcast (Ep. 55)

Faulty Foundations

However, it’s not just demographics that may plague passive investments. They are built upon several questionable assumptions. The most glaring one is that passive investments don’t impact market prices. By definition, every market participant does. Perhaps when passive investing was a negligible part of the markets this assumption held. However, the more AUM they garner, the more problematic this assumption.

Another theoretical fault is that investing is a closed system, like poker. This is plainly false. Capital routinely enters and leaves investment markets as individual cash needs wax and wane. Nor do passive investments approximate the entire universe of investment options, as required by theory. For example, an S&P 500 ETF only invests in the 500 stocks comprising the index—hardly a complete set of market assets.

Ergodicity is another dubious assumption presumed by the foundational theories of passive investing. An ergodic system is one where the future distribution of outcomes is known in advance since it’s the same as the historical one. Investing is anything but; past performance does not guaranty future results. We simply can’t know what the future will bring. This is another important way in which investing differs from poker and other games of chance.

A COVID-19 Catalyst

Green specifically identified demographics as a secular market structure trend supporting passive investing’s success. However, the recently imposed economic lockdowns related to the COVID-19 outbreak could give us a preview of his thesis.

As noted, passive investment strategies play central roles in defined contribution retirement plans. Thus, they are inextricably linked to employment. Workers can only participate if they have jobs. Retirements, layoffs, and furloughs may not only halt contributions, but could even catalyze withdrawals.

The recent spike in initial jobless claims are unlike anything experienced before.

Recently, new unemployment claims spiked to staggering levels due to COVID-19, the likes of which have never been seen. Over the past 3 weeks, initial jobless claims totaled nearly 19 million! More could come if the quarantines continue. Thus, capital inflows to retirement accounts may soon dry up and could even reverse. The recently passed CARES Act could exacerbate the latter since it relaxed penalties for early retirement account withdrawals. That said, layoffs have yet to hit those most with retirement accounts.

Playing Easy Games

Capital steadily flowed into passive investment vehicles for decades. This created a self-reflexive loop, whereby their inflows helped bid up their very own prices, boosting their relative performance (vis-à-vis active managers), which in turn attracted more assets, etc., etc., etc. Strong academic backing, fierce lobbying efforts, and low fee structures have universally embedded them in investment portfolios of institutions and individuals alike.

Green’s passive investment thesis is as unique as it is interesting. He’s one of the few outspoken critics of the passive investment industry and the faulty assumptions at its foundation (markets are complete, ergodic, and that passive investments do not influence market prices, to name a few). If he’s right, the secular capital flow-tailwinds into passive investment vehicles may soon reverse. The recent spike in unemployment may even provide a preview.

We already know how passive investment vehicles will transact in the presence of capital flows. If these become realistically forecastable, say due to legally mandated retirement distributions, or a cyclical surge in unemployment, then so too may the transactional behaviors of passive investments become. For the astute active manager, this kind of setup may have the makings of an easy game.


Tyler Durden

Thu, 04/23/2020 – 14:07

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

Ali Lumsden’s East Lodge Capital Plunges 26% In March As Mortgage Market Implodes

Ali Lumsden’s East Lodge Capital Plunges 26% In March As Mortgage Market Implodes

Ali Lumsden’s East Lodge Capital isn’t quite having the same success it did the last time the mortgage bond market melted down.

Lumsden, famous for gaining 73% when the mortgage bond market went belly up last time, saw 26% declines in March in its main hedge fund and a 16% in another of its funds, according to Bloomberg. 

The fund specializes in securitized credit, which has suffered as the global economy has ground to a halt over the last 2 months. The good news for Lumsden is that East Lodge may have a tailwind in Central Bank policy, which is now apparently to bail out and backstop all bond markets, of all sizes, secured or unsecured. 

Lumsden, who has worked in structured credit for 30 years, formerly averaged 28% annually while working at Michael Hintze’s CQS, an asset back securities fund, from 2006 to 2012.

In 2008, he made his score betting big against subprime mortgages and the banks that held them on their respective balance sheets. CQS, where Lumsden no longer works, was also down in March – to the tune of 40%. 

East Lodge manages $1.9 billion and invests primarily in residential and commercial mortgage backed securities and collateralized loan obligations. 

The mortgage market appears to be in complete shambles. We wrote just days ago that JP Morgan will be raising borrowing standards for most new home loans as the bank “moves to mitigate lending risk stemming from the novel coronavirus disruption.”

 

Days prior to that, we reported that JPMorgan had quietly halted all non-Paycheck Protection Program based loan issuances for the foreseeable future. We predicted the reason why JPMorgan would “temporarily suspend” all non-government backstopped loans such as PPP, is because the bank expects a default tsunami to hit, coupled with a full-blown depression that wipes out the value of assets pledged to collateralize the loans.

And if that’s the case, we can’t say we disagree.


Tyler Durden

Thu, 04/23/2020 – 13:45

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

Top Elections Lawyer: Vote-By-Mail Is “The Most Massive Fraud Scheme In American History”

Top Elections Lawyer: Vote-By-Mail Is “The Most Massive Fraud Scheme In American History”

Authored by Margaret Menge via InsideSources.com,

The First Amendment lawyer famous for Citizens United has taken up arms against a new foe: all-mail voting.

Jim Bopp, Jr. filed two lawsuits in federal court this week — one in Nevada and one in Virginia — to stop officials in those states from mailing out ballots to everyone on the voter rolls, not just those who request them.

“I don’t use the word ‘voters,’” he says, “I use the word ‘people on the registration rolls’ because many of them are ineligible to vote. They’re not voters. They’re people that are on the registration rolls that are ineligible to vote.”

As the COVID-19 pandemic gripped the nation, Democratic officials and activists began pushing states to switch to voting by mail, eliminating in-person voting altogether – and probably permanently.

But organizations that have spent years reviewing the voter rolls in many states estimate that more than 20 million of the names nationwide are duplicates, people who have moved away, are deceased, non-citizens or felons who have not had their voting rights restored.

“Democrats have been trying to register everybody in the country and then fight purging the rolls of ineligible people, and now they want to mail ballots to every single one of them,” says Bopp.

“It’s just like, talk about the most massive fraud scheme in the history of America. Makes Tammany Hall looks like a bunch of pikers, or the Pendergast Machine in Kansas City look like they didn’t even know how to steal elections.”

Earlier this month, Bopp filed a brief in New Mexico on behalf of the organization True the Vote and individual voters, whose votes could have been canceled out by the votes of ineligible voters if the court sided with plaintiffs — county clerks who wanted ballots mailed to everyone, not just those who’d requested them.

“What the parties request this court to do here is little else than pure anarchy that robs both the legislature and the eligible, registered voters of New Mexico of the authority and protections afforded each under the New Mexico [Constitution] and the United States Constitution,” the brief reads.

Bopp argued that the rights of voters were “imperiled” by the plaintiffs’ request and that the plaintiffs have attempted to “entice” the court to “utilize the national emergency created by the COVID-19 virus as a guise to usurp the constitutionally delegated authority of the legislature and overrule and replace current election laws with robust protections against voter fraud with a court-created scheme of mail-in balloting.”

The Supreme Court of New Mexico sided with Bopp and denied the request for ballots to be sent to all names on the rolls.

But now the push is on for all-mail voting in the November presidential election, as well. About a half dozen state have already legalized it.

“They are bringing suits all over the country to impose it through court orders,” says Bopp.

“All-mail. Their ideal is all-mail.”

All-mail voting is not the same as absentee voting as voting absentee involves the voter requesting an absentee ballot, usually by mail, with a signature.

Some states have more stringent requirements than others. In Kansas, for example, people requesting an absentee ballot are required to send a copy of a driver’s license or State ID with the application for an absentee ballot.

“Part of the problem with this discussion is, we are familiar with absentee ballots, and that does involve quote mailing a ballot, end of quote,” says Bopp, “but there are numerous safeguards, the most important of which is the prior application. You have to apply.

“You have an audit trail, and all sorts of things. And that’s why a lot of these Democrats and liberal activists don’t like absentee ballot,” he says.

“They want wholesale mailing out without application because it eliminates half the fraud protection.”


Tyler Durden

Thu, 04/23/2020 – 13:27

via ZeroHedge News https://ift.tt/2yI3DFJ Tyler Durden

Miami Has Recorded No Homicides in 6 Weeks Despite Deliberate Decline in Police Enforcement

Fears of COVID-19 infection may have emptied the streets of Miami, but criminals are not taking advantage of the situation. Miami Police Chief Jorge Colina says that not only has violent crime plunged in the city, but Miami has not reported a homicide in six weeks. That hasn’t happened since 1964.

Colina himself tested positive for COVID-19 last week and is at home recovering. The New York Times reports (you’ll have to scroll down for the story) that 20 of Miami’s 1,400 officers are sick. That’s actually a pretty low infection rate when compared to a place like New York City, where at least 1,500 NYPD officers have become infected out of 36,000 officers. Earlier in April, one out of six NYPD officers was out sick.

One difference appears to be that Colina gave his officers very different instructions. He has strongly discouraging Miami police from interacting with people, both for his officers’ safety and the safety of city residents. From the Times:

“I literally told them, ‘I don’t care if we don’t issue a single ticket summons in the month of April,'” he said. “‘I don’t want you to unnecessarily interact with someone if you don’t have to, for your safety and theirs.’ And the amount of people who have been impacted financially is absolutely something that we should be mindful of.”

Meanwhile, the NYPD appears to be out in force continuing heavy-duty policing of low-level “quality-of-life” crimes even as COVID-19 spreads through the department and the city’s jails. NYPD Commissioner Dermot Shea has declared that he, unlike Colina, will not be reducing enforcement.

Perhaps he should. Miami’s de-policing decision is not leading to anarchy. Colina says the city is seeing an uptick in car break-ins and that he worries about domestic violence incidents going unreported. Nevertheless, crime overall in Miami is down (and has been trending downward for years), and the community isn’t any less safe as a result of his officers showing restraint.

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Georgia Is Right To Reopen, But Will That Actually Restart Its Economy?

The societal lockdown due to the novel coronavirus has shown that the U.S. economy definitely has a kill switch. As Georgia begins to lift its restrictions on “non-essential” businesses tomorrow, we’re going to find out whether the economy has anything resembling an on switch.

Over the past five weeks, 26.5 million Americans have filed for unemployment, suggesting a real unemployment rate of nearly 21 percent, the highest since 1934. By the first week of April, according to Moody’s Analytics, “U.S. daily output has fallen roughly 29 percent, compared with the first week of March, just before the spate of closures” caused by shelter-in-place orders affecting “8 in 10 U.S. counties.”

If the kill switch was easy to find, it’s going to be tough as hell to restart the economy or even keep it staggering along at its current anemic pace. A new study from economists Jonathan Dingel and Brent Neiman at the University of Chicago find that only about “37 percent of U.S. jobs can plausibly be performed at home,” helping to explain the economic wreckage caused by nearly universal lockdowns. Nearly two-thirds of workers are already out of luck, and that’s before slack demand starts to threaten the bottom lines of companies employing those lucky few who can work from home.

Which brings us to the controversial decision of Georgia Gov. Brian Kemp (R) to reopen parts of his state’s economy. His decision has been criticized by both medical experts and President Donald Trump, but effective tomorrow,

Employees at “gyms, fitness centers, bowling alleys, body art studios,” as well as “barbers, cosmetologists, hair designers, nail care artists, estheticians, their respective schools & massage therapists,” will be allowed to return to work…but will have to operate under restrictions.

And come Monday, “sit-down restaurants, theaters, and private social clubs will be allowed to reopen,” also subject to social-distancing and other restrictions.

This is, I think, not simply an eminently defensible decision from a libertarian position, but a good one. Without forcing anyone to do anything they don’t want to, it transfers power to individual businesses, workers, and residents and gives them more choices to make their own decisions. Some businesses in Georgia will reopen and others won’t. Hospitals and other treatment centers have had time and experience to prepare for crushes that have mostly failed to come to pass, in no small part due to lockdown orders. In late March, for instance, Gov. Andrew Cuomo said that his state of New York, the epicenter of the pandemic in the United Stats, would need as many as 40,000 ventilators while having only 12,000 on hand. By April 17, reports National Review‘s Kyle Smith, Cuomo said he “has so many ventilators he is giving them away: On April 15, he said he was sending 100 of them to Michigan and 50 to Maryland. On April 16, he announced he was sending 100 to New Jersey.”

The rush to mandatory lockdowns—as opposed to calls for voluntary forms of social distancing and other measures to reduce the rate and spread of infection—that took place a little more than a month ago obscured serious discussions about their efficacy. “Our historical experience with mandatory quarantines and mass quarantines and cordons is just not good, it’s not effective,” a senior scholar at Johns Hopkins University told STAT just before San Francisco announced its early shelter-in-place order in mid-March. If and when Georgia, which has a relatively low death rate of 8 per 100,000 residents, or other states that start to reopen their economies are hit by waves of new infections that require hospitalization, they will be in a position to respond.

But even as Georgia moves to lift restrictions on “non-essential” businesses tomorrow, it’s unclear how employers, employees, and customers are likely to act. The example of movie theaters illustrates the difficult road ahead. Variety reports that “exhibition insiders stress that it would be nearly impossible for most major chains to start business back up by next week.” That’s because they have been shuttered for more than a month, necessitating cleaning, prep, and retraining of workers. Venues will have to abide by rules limiting gathering to 10 or fewer people while observing social-distancing rules that will limit the ability of theaters to earn back basic operating expenses. And there’s also a question of what movies will be shown, since most studios have themselves shut down or gone to a skeleton crew.

Hollywood studios aren’t releasing new movies for at least a month, when Universal’s comedy The King of Staten Island opens on June 19 and Warner Bros.’ sci-fi thriller Tenet debuts on July 17. Almost all other films scheduled to release this summer have been shelved or postponed, except for Disney’s live-action Mulan on July 24 and Warner Bros.’ comic book adventure Wonder Woman 1984 on Aug. 14. That means even if exhibitors are able to turn the lights back on in some venues, there’s not a lot of compelling product to offer. They would likely be forced to screen library titles and a few lower-budget indies.

Even more daunting is the unsettled issue of legal liability. It’s unclear whether theaters (and other businesses) will be held responsible for illnesses claimed by either customers or employees.

Majorities of Americans say they will not feel comfortable eating out, going to malls, museums, concerts, and even church services for at least three months. Those attitudes are likely to change dramatically if and when deaths abate or surge, or when a vaccine is announced. But in the near term, they suggest that even when a state or city lifts its bans, the economy may well stay dormant for a long time to come. Although the public-health dimension of the coronavirus pandemic has dominated the discussion so far, as time goes on, what analysts at The Foundation for Research on Equal Opportunity call “the severe human cost of a prolonged economic shutdown” will come to occupy more and more of our attention.

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Miami Has Recorded No Homicides in 6 Weeks Despite Deliberate Decline in Police Enforcement

Fears of COVID-19 infection may have emptied the streets of Miami, but criminals are not taking advantage of the situation. Miami Police Chief Jorge Colina says that not only has violent crime plunged in the city, but Miami has not reported a homicide in six weeks. That hasn’t happened since 1964.

Colina himself tested positive for COVID-19 last week and is at home recovering. The New York Times reports (you’ll have to scroll down for the story) that 20 of Miami’s 1,400 officers are sick. That’s actually a pretty low infection rate when compared to a place like New York City, where at least 1,500 NYPD officers have become infected out of 36,000 officers. Earlier in April, one out of six NYPD officers was out sick.

One difference appears to be that Colina gave his officers very different instructions. He has strongly discouraging Miami police from interacting with people, both for his officers’ safety and the safety of city residents. From the Times:

“I literally told them, ‘I don’t care if we don’t issue a single ticket summons in the month of April,'” he said. “‘I don’t want you to unnecessarily interact with someone if you don’t have to, for your safety and theirs.’ And the amount of people who have been impacted financially is absolutely something that we should be mindful of.”

Meanwhile, the NYPD appears to be out in force continuing heavy-duty policing of low-level “quality-of-life” crimes even as COVID-19 spreads through the department and the city’s jails. NYPD Commissioner Dermot Shea has declared that he, unlike Colina, will not be reducing enforcement.

Perhaps he should. Miami’s de-policing decision is not leading to anarchy. Colina says the city is seeing an uptick in car break-ins and that he worries about domestic violence incidents going unreported. Nevertheless, crime overall in Miami is down (and has been trending downward for years), and the community isn’t any less safe as a result of his officers showing restraint.

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Georgia Is Right To Reopen, But Will That Actually Restart Its Economy?

The societal lockdown due to the novel coronavirus has shown that the U.S. economy definitely has a kill switch. As Georgia begins to lift its restrictions on “non-essential” businesses tomorrow, we’re going to find out whether the economy has anything resembling an on switch.

Over the past five weeks, 26.5 million Americans have filed for unemployment, suggesting a real unemployment rate of nearly 21 percent, the highest since 1934. By the first week of April, according to Moody’s Analytics, “U.S. daily output has fallen roughly 29 percent, compared with the first week of March, just before the spate of closures” caused by shelter-in-place orders affecting “8 in 10 U.S. counties.”

If the kill switch was easy to find, it’s going to be tough as hell to restart the economy or even keep it staggering along at its current anemic pace. A new study from economists Jonathan Dingel and Brent Neiman at the University of Chicago find that only about “37 percent of U.S. jobs can plausibly be performed at home,” helping to explain the economic wreckage caused by nearly universal lockdowns. Nearly two-thirds of workers are already out of luck, and that’s before slack demand starts to threaten the bottom lines of companies employing those lucky few who can work from home.

Which brings us to the controversial decision of Georgia Gov. Brian Kemp (R) to reopen parts of his state’s economy. His decision has been criticized by both medical experts and President Donald Trump, but effective tomorrow,

Employees at “gyms, fitness centers, bowling alleys, body art studios,” as well as “barbers, cosmetologists, hair designers, nail care artists, estheticians, their respective schools & massage therapists,” will be allowed to return to work…but will have to operate under restrictions.

And come Monday, “sit-down restaurants, theaters, and private social clubs will be allowed to reopen,” also subject to social-distancing and other restrictions.

This is, I think, not simply an eminently defensible decision from a libertarian position, but a good one. Without forcing anyone to do anything they don’t want to, it transfers power to individual businesses, workers, and residents and gives them more choices to make their own decisions. Some businesses in Georgia will reopen and others won’t. Hospitals and other treatment centers have had time and experience to prepare for crushes that have mostly failed to come to pass, in no small part due to lockdown orders. In late March, for instance, Gov. Andrew Cuomo said that his state of New York, the epicenter of the pandemic in the United Stats, would need as many as 40,000 ventilators while having only 12,000 on hand. By April 17, reports National Review‘s Kyle Smith, Cuomo said he “has so many ventilators he is giving them away: On April 15, he said he was sending 100 of them to Michigan and 50 to Maryland. On April 16, he announced he was sending 100 to New Jersey.”

The rush to mandatory lockdowns—as opposed to calls for voluntary forms of social distancing and other measures to reduce the rate and spread of infection—that took place a little more than a month ago obscured serious discussions about their efficacy. “Our historical experience with mandatory quarantines and mass quarantines and cordons is just not good, it’s not effective,” a senior scholar at Johns Hopkins University told STAT just before San Francisco announced its early shelter-in-place order in mid-March. If and when Georgia, which has a relatively low death rate of 8 per 100,000 residents, or other states that start to reopen their economies are hit by waves of new infections that require hospitalization, they will be in a position to respond.

But even as Georgia moves to lift restrictions on “non-essential” businesses tomorrow, it’s unclear how employers, employees, and customers are likely to act. The example of movie theaters illustrates the difficult road ahead. Variety reports that “exhibition insiders stress that it would be nearly impossible for most major chains to start business back up by next week.” That’s because they have been shuttered for more than a month, necessitating cleaning, prep, and retraining of workers. Venues will have to abide by rules limiting gathering to 10 or fewer people while observing social-distancing rules that will limit the ability of theaters to earn back basic operating expenses. And there’s also a question of what movies will be shown, since most studios have themselves shut down or gone to a skeleton crew.

Hollywood studios aren’t releasing new movies for at least a month, when Universal’s comedy The King of Staten Island opens on June 19 and Warner Bros.’ sci-fi thriller Tenet debuts on July 17. Almost all other films scheduled to release this summer have been shelved or postponed, except for Disney’s live-action Mulan on July 24 and Warner Bros.’ comic book adventure Wonder Woman 1984 on Aug. 14. That means even if exhibitors are able to turn the lights back on in some venues, there’s not a lot of compelling product to offer. They would likely be forced to screen library titles and a few lower-budget indies.

Even more daunting is the unsettled issue of legal liability. It’s unclear whether theaters (and other businesses) will be held responsible for illnesses claimed by either customers or employees.

Majorities of Americans say they will not feel comfortable eating out, going to malls, museums, concerts, and even church services for at least three months. Those attitudes are likely to change dramatically if and when deaths abate or surge, or when a vaccine is announced. But in the near term, they suggest that even when a state or city lifts its bans, the economy may well stay dormant for a long time to come. Although the public-health dimension of the coronavirus pandemic has dominated the discussion so far, as time goes on, what analysts at The Foundation for Research on Equal Opportunity call “the severe human cost of a prolonged economic shutdown” will come to occupy more and more of our attention.

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Science Teachers Adapt To Lockdown With ‘Burping Bags’ And Other At-Home Experiments

Science Teachers Adapt To Lockdown With ‘Burping Bags’ And Other At-Home Experiments

With most schools out across the country due to the coronavirus lockdown, science teachers have been getting creative when it comes to finding experiments to keeep their students entertained.

“My thing has been to get science into their homes and get them doing science… it’s about discovery,” said Lockhart, Texas science teacher Avri DiPietro, who’s assigned a “burping bag” experiment to her 160 or so students between the ages of 11 and 14.

The assignment calls for her sixth graders to combine vinegar and baking soda in a plastic bag, either in their kitchens or backyards. If all goes as planned, burps and belches will ring out across the small southeastern Texas town where DiPietro teaches, as the acidic vinegar meets the sodium bicarbonate, releasing gas from the bag. –Reuters

“This is pushing a lot of us educators in how to reach our kids,” said DiPietro.

As Reuters notes, teachers across the country have been scrambling to develop lesson plans with just a few days notice following a national lockdown to keep COVID-19 from spreading (a strategy which has come under increasing scrutiny). The challenge, of course, is keeping children from becoming distracted and tuning out.

DiPietro says that assigning hands-on experiments is a great way for students to stay engaged without access to the school laboratory.

Teachers will typically post lists of the ingredients needed for the experiment, detailed instructions, and possible observations and outcomes in their virtual classrooms. Then students spring into action, raiding their home’s pantries and cabinets for materials before turning their back porches and kitchens into makeshift science labs. –Reuters

“It really makes parents understand what teachers go through on a day-to-day basis… they have to find innovative ways to keep our kids busy,” said parent Heather Simpson, whose son Houstin is one of DiPetro’s students. Houstin made a “homemade lava lamp” using water, food coloring, salt, oil and a jar.

Meanwhile, second graders at Park Elementary School in Fairmount – a rural town in northeast Indiana, conducted a “walking water” experiment using strips of paper towels, food coloring, water and cups. Which we’re sure their parents had fun cleaning up.

“I understand now!” said one student in a video posted to Twitter, after successfully demonstrating “capillary action” – which allows liquid to flow upward in narrow spaces.

His teacher, Rebecca Freel, is happy watching her students make progress.

“It entertains me to watch their videos and seeing their pictures,” she said, adding “They are learning more from doing this than if I just gave them a paper to do or a website to go on. They really have to dive in and think.”

That said, it’s not always easy thinking of experiments for students when they don’t have access to online learning, or don’t have the necessary ingredients and materials for experiments. Because of this, most of the assignments are simple, and many are optional or for extra credit.

Glendora, California science teacher Libby Birmingham has been holding a virtual classroom from her front porch since her school closed on March 13 – conducting experiments such as the “cloud in a jar” – which uses shaving cream, water and food coloring to show precipitation.

“I’m trying to get them to be inquisitive and asking questions,” said Birmingham.

In another experiment known as “dancing raisins,” Birmingham showed how carbon dioxide affects the volume of fruit when it’s submerged in a carbonated liquid.

“They are fizzing… whoa… they have fizz bubbles on them. Cool,” exclaimed one of her students.


Tyler Durden

Thu, 04/23/2020 – 13:05

via ZeroHedge News https://ift.tt/2S2yRhH Tyler Durden