Welcome To Bergeron!

Welcome To Bergeron!

Tyler Durden

Sat, 10/10/2020 – 20:00

Via EricPetersAutos.com,

America is becoming Bergeron – a new country based on the principles laid out in Kurt Vonnegut’s depressingly prescient short story, Harrison Bergeron.

It is a country in which – as in the book – you may not act if anyone of lesser strength or ability or drive cannot act at the same level. You must accommodate yourself to their level.

Everything is leveled – ever downward.

Until all are depressingly . . . equal.

In misery. In poverty. In thrall to suffocating edicts limiting what they are permitted to do – and told they must not do – on the basis of what others can’t do. Or resent you for being able to do, which they can’t.

One of the most obvious expressions of this principle is on the road, where the law punishes competence as a kind of affront to the incompetent. If some people can’t handle making a right turn on red without creeping out in front of right-of-way traffic and causing a wreck thereby, no one else is allowed to make a right-on-red. If someone ignores the law forbidding it and makes a right-on-red safely and competently, by judging the flow of traffic and applying the necessary degree of acceleration to merge with it smoothly, he is punished for being competent.

For having ability – and daring to use it.

Some will say that, no, the offender ignored the law. True – but only superficially.

Consider that the competent execution of the action isn’t a mitigating factor. Just as health is no excuse for not Diapering.

Which is proof positive that the true offense – not mentioned but nonetheless – is lack of obedience premised on the acceptance of incompetence (and sickness) even in its absence.

At the first hint of snow, the roads are now inundated with liquid brine – if they’re not closed outright, as in my part of Virginia – where the Blue Ridge Parkway is closed even before it snows, stays closed if it doesn’t actually snow . . . because it might snow.

Because some people can’t deal with snow.

Highway speed limits are today what they were 60 years go – notwithstanding 60 years of improvements in tire/brake/suspension technology and half a dozen “safety assists” in addition to that.

Glaucomic granny sets the pace.

And now – because granny might die – everyone is treated as if they, too, were a granny and might die.

Healthy people at very little to no risk of death from catching a cold must live in perpetual fear of death. If they don’t fear it, having no reason to – they must be forced to act – and look – as if they did.

For the sake of those who do fear it.

Instead of sequestering granny, everyone else is sequestered.

And Diapered.

Soon, they will be Needled. Not because they need it – being healthy – but because some people aren’t. Everyone must be made unhealthy – by injecting them with substances that make them so, which suppress the competence of their own healthy immune system to ward off colds.

A public sneeze will soon be treated the same as spraying a crowd with machine gun fire – and there are Bergeronites who equate the two. Even if you don’t sneeze. Because you might.

Ergo, the Diaper.

It’s as vindictive a policy as forcing people who can drive to operate at the level of those who can’t – and punishing them if they don’t.

It all flows from the same ugly principle. The Sickness Regime is merely the latest and entirely predictable evolution of least common denominatorism – the Bergeroning of America.

It has been evolving for a long time, gradually – until it reached a critical mass – gesundheit! – this year.

Decades before the locking-down of the healthy population to protect the unhealthy portion of the population, it became common practice – in government schools – to limit the progression of instruction of the bright kids to accommodate the dullest kids.

It was called “mainstreaming.”

When kids played team sports, participation trophies were handed out to everyone in lieu of  trophies for winning.

Adults lacking ability were hired for jobs over those with ability. This was called “affirmative action” – and it worked in the same way (and on the basis of the same motives) as forcing a champion sprinter to run in boots so that a mediocre rival could keep up with him.

Because some people can’t use a rearview mirror, everyone must be forced to buy a back-up camera. Because some people are terrible drivers when sober, the slightest amount of alcohol in the system of a good driver subjects him to a charge of “drunk” driving without regard to his actual driving.

Everything has to be idiot-proofed . . . for the sake of the idiots at the expense of those who aren’t.

People with the foresight to live below their means, who set aside money for their own retirement, are punished for their prudence by being forced to “contribute” money to subsidize the retirement of the imprudent, thereby rendering them just as dependent.

People who can competently handle a firearm – having never given reason to believe otherwise – are presumed incompetent to handle a firearm on account of the demonstrated incompetence of other people.

And now, the healthy must pretend they are sick – and be treated as presumptively sick. The fact that they aren’t isn’t a mitigating factor. In fact, it is a kind of perverse crime in that they are punished for living normally – on the basis of the fact that they aren’t sick.

This is being characterized as “selfish.”

It is an actionable offense in many areas.

Granny isn’t forced to enter a restaurant – and can enter wearing a Face Diaper if she likes.That’s not Bergeronic enough. The restaurant must force all of its employees and patrons to wear a Face Diaper.

Every level of American society is being pulled toward the floor like a tablecloth grabbed by a temper-tantruming toddler – who will never be allowed to grow up – by making the adults at the table sit on the floor, amid the spilled soup and broken plates.

*  *  *

If you like what you’ve found here please consider supporting EPautos.  We depend on you to keep the wheels turning!  Our donate button is here.

via ZeroHedge News https://ift.tt/3dj7IAp Tyler Durden

Welcome To Bergeron!

Welcome To Bergeron!

Tyler Durden

Sat, 10/10/2020 – 20:00

Via EricPetersAutos.com,

America is becoming Bergeron – a new country based on the principles laid out in Kurt Vonnegut’s depressingly prescient short story, Harrison Bergeron.

It is a country in which – as in the book – you may not act if anyone of lesser strength or ability or drive cannot act at the same level. You must accommodate yourself to their level.

Everything is leveled – ever downward.

Until all are depressingly . . . equal.

In misery. In poverty. In thrall to suffocating edicts limiting what they are permitted to do – and told they must not do – on the basis of what others can’t do. Or resent you for being able to do, which they can’t.

One of the most obvious expressions of this principle is on the road, where the law punishes competence as a kind of affront to the incompetent. If some people can’t handle making a right turn on red without creeping out in front of right-of-way traffic and causing a wreck thereby, no one else is allowed to make a right-on-red. If someone ignores the law forbidding it and makes a right-on-red safely and competently, by judging the flow of traffic and applying the necessary degree of acceleration to merge with it smoothly, he is punished for being competent.

For having ability – and daring to use it.

Some will say that, no, the offender ignored the law. True – but only superficially.

Consider that the competent execution of the action isn’t a mitigating factor. Just as health is no excuse for not Diapering.

Which is proof positive that the true offense – not mentioned but nonetheless – is lack of obedience premised on the acceptance of incompetence (and sickness) even in its absence.

At the first hint of snow, the roads are now inundated with liquid brine – if they’re not closed outright, as in my part of Virginia – where the Blue Ridge Parkway is closed even before it snows, stays closed if it doesn’t actually snow . . . because it might snow.

Because some people can’t deal with snow.

Highway speed limits are today what they were 60 years go – notwithstanding 60 years of improvements in tire/brake/suspension technology and half a dozen “safety assists” in addition to that.

Glaucomic granny sets the pace.

And now – because granny might die – everyone is treated as if they, too, were a granny and might die.

Healthy people at very little to no risk of death from catching a cold must live in perpetual fear of death. If they don’t fear it, having no reason to – they must be forced to act – and look – as if they did.

For the sake of those who do fear it.

Instead of sequestering granny, everyone else is sequestered.

And Diapered.

Soon, they will be Needled. Not because they need it – being healthy – but because some people aren’t. Everyone must be made unhealthy – by injecting them with substances that make them so, which suppress the competence of their own healthy immune system to ward off colds.

A public sneeze will soon be treated the same as spraying a crowd with machine gun fire – and there are Bergeronites who equate the two. Even if you don’t sneeze. Because you might.

Ergo, the Diaper.

It’s as vindictive a policy as forcing people who can drive to operate at the level of those who can’t – and punishing them if they don’t.

It all flows from the same ugly principle. The Sickness Regime is merely the latest and entirely predictable evolution of least common denominatorism – the Bergeroning of America.

It has been evolving for a long time, gradually – until it reached a critical mass – gesundheit! – this year.

Decades before the locking-down of the healthy population to protect the unhealthy portion of the population, it became common practice – in government schools – to limit the progression of instruction of the bright kids to accommodate the dullest kids.

It was called “mainstreaming.”

When kids played team sports, participation trophies were handed out to everyone in lieu of  trophies for winning.

Adults lacking ability were hired for jobs over those with ability. This was called “affirmative action” – and it worked in the same way (and on the basis of the same motives) as forcing a champion sprinter to run in boots so that a mediocre rival could keep up with him.

Because some people can’t use a rearview mirror, everyone must be forced to buy a back-up camera. Because some people are terrible drivers when sober, the slightest amount of alcohol in the system of a good driver subjects him to a charge of “drunk” driving without regard to his actual driving.

Everything has to be idiot-proofed . . . for the sake of the idiots at the expense of those who aren’t.

People with the foresight to live below their means, who set aside money for their own retirement, are punished for their prudence by being forced to “contribute” money to subsidize the retirement of the imprudent, thereby rendering them just as dependent.

People who can competently handle a firearm – having never given reason to believe otherwise – are presumed incompetent to handle a firearm on account of the demonstrated incompetence of other people.

And now, the healthy must pretend they are sick – and be treated as presumptively sick. The fact that they aren’t isn’t a mitigating factor. In fact, it is a kind of perverse crime in that they are punished for living normally – on the basis of the fact that they aren’t sick.

This is being characterized as “selfish.”

It is an actionable offense in many areas.

Granny isn’t forced to enter a restaurant – and can enter wearing a Face Diaper if she likes.That’s not Bergeronic enough. The restaurant must force all of its employees and patrons to wear a Face Diaper.

Every level of American society is being pulled toward the floor like a tablecloth grabbed by a temper-tantruming toddler – who will never be allowed to grow up – by making the adults at the table sit on the floor, amid the spilled soup and broken plates.

*  *  *

If you like what you’ve found here please consider supporting EPautos.  We depend on you to keep the wheels turning!  Our donate button is here.

via ZeroHedge News https://ift.tt/3dj7IAp Tyler Durden

A New Problem Emerges If Congress Can’t Agree On A Fiscal Stimulus Deal

A New Problem Emerges If Congress Can’t Agree On A Fiscal Stimulus Deal

Tyler Durden

Sat, 10/10/2020 – 19:30

Back on May 4, in its then-latest estimate of Marketable Borrowings the US Treasury shocked markets when it unveiled that in the April-June quarter it would borrow a humongous $2.999 trillion, exponentially higher than what it had expected to borrow during the quarter in its previous estimate in February when it forecast a $56 billion decline in debt. And while the projected debt number stunned the market, it barely registered on the price or yield of US Treasurys for the simple reason that just weeks earlier the Fed announced it would monetize all gross debt issuance for the US when it unveiled Unlimited QE, something it has been doing since.

This massive surge in debt issuance would also result in a far higher Treasury cash balance which would be used to pre-fund various fiscal stimulus programs, and as the chart below shows, that’s precisely what happened with the Treasury cash balance exploding from $400BN at the end of March to an record high just above $1.7 trillion currently, an amount that is just waiting to be spent as soon as Congress gives the green light.

In retrospect the cash surge was too much: in fact, more than double what the Treasury had expected on May 4. While the Treasury had forecast a $3 trillion increase in marketable borrowing for the quarter ending June 30, it also expected the cash balance to grow to $800 billion on that same date (shown highlighted in yellow on the table below).

And yet the final number ended up being approximately $900 billion higher, meaning that the Treasury had substantially overshot its funding need and suddenly found itself with a record cash buffer.

So with all this extra cash in hand, did the Treasury reduce its debt needs? As shown above, five months ago the Treasury expected that it would need to borrow $677BN in the final fiscal quarter of the year ending Sept 30, which while a massive number, was still well below the $2.753 trillion it ended up borrowing (just shy of the $2.999 trillion initial forecast, a number which was not hit due to “lower-than-projected expenditures and higher receipts largely offset by the increase in the cash balance.”)?

The answer, as we pointed out in August, was a resounding no because as it disclosed in its latest estimate of Marketable Borrowing needs, the Treasury once again surprised markets by announcing it would borrow a whopping $947BN last quarter, $270BN more than it had forecast a quarter ago, even though the Treasury started this quarter with a cash balance that is $922 billion higher than it had expected one quarter ago!

Source: US Treasury

Why this unexpected increase in debt even though the Treasury was starting off with nearly $1 trillion more in cash than originally budgeted? This is how it explains it.

During the July – September 2020 quarter, Treasury expects to borrow $947 billion in privately-held net marketable debt, assuming an end-of-September cash balance of $800 billion.  The borrowing estimate is $270 billion higher than announced in May 2020.  The increase in privately-held net marketable borrowing is primarily driven by higher expenditures, due to a shift from the prior quarter and anticipated new legislation, largely offset by the higher beginning-of-July cash balance and higher receipts.

In other words, not only will the Treasury draw down on $922 billion in cash in the calendar quarter the ends in less than two months…

… but it will also sell enough debt to raise an additional $881 billion (net) which will also end up being spent, suggesting that in the current quarter the Treasury plans on spending a gargantuan $1.8 trillion, something which as we learned last week was the latest Trump offer to Pelosi and House Democrats (an offer which Pelosi just turned down earlier today).

But that’s not all, because in its first glimpse of the current Oct-Dec quarter’s funding needs, the Treasury now expects to borrow another $1.216 trillion in privately-held net marketable debt, once again assuming that the end-of-December cash balance remains unchanged from the Sept 30 balance of $800 billion. This means that the Treasury will spend an additional $1.2 trillion in the quarter ending Dec. 31, assuming every dollar it raises in the open market is then promptly spent (since the cash balance remains unchanged).

According to the Treasury, “these estimates assume $1 trillion of additional borrowing need in anticipation of additional legislation being passed in response to the COVID-19 outbreak.”

So what does this mean?

First, when putting together the actual data for the first three quarters of fiscal 2020 and adding the Fiscal Q4 estimate of $947BN in new issuance, the Treasury will borrow a record $4.5 trillion in Fiscal 2020, more than it borrowed in the previous view years combined!

Second, it means that for calendar Q3 and Q4, the Treasury planned on spending almost $3 trillion consisting of:

  • i) a drawdown in cash from $1722 billion to $800 billion, for $922 billion, in the quarter ending Sept 30
  • ii) new debt issuance of $947 billion in the same quarter and
  • iii) new debt issuance of $1,216 billion in the quarter ended Dec 31

… for a grand total of $3.085 trillion in new funds (either from spending cash or raising debt).

And even if the Treasury uses some of this cash to pay down maturing Bills (which we doubt as it will most likely keep rolling this short-term debt indefinitely with rates at all time lows), it means that as recently as August, the Treasury was budgeting for nearly $3 trillion for Congress and Trump to spend as they fit in order to boost the economy to ensure that there is no “double dip” economic crash. It also meant that for all the posturing about whether the $1 trillion Republican or $3 trillion Democrat stimulus package is accepted, the Treasury was already budgeting for the latter.

* * *

Alas, a problem emerged: with less than 4 weeks left until the elections, Congress and Trump remain hopelessly deadlocked on when – and if – a new stimulus will take place. And while that in itself is a major problem for an economy and for Trump’s re-election chances (which explains why Democrats are playing hardball on a new deal and will only accept it if it includes bailouts of insolvent state pensions in Democratic states), something we explained two weeks ago, “Failure To Launch New Fiscal Stimulus Would Have Catastrophic Consequences For The US Economy“, another major problem has emerged.

The growing uncertainty over a new, fifth fiscal deal raise significant questions about the Treasury’s plans for managing its cash balance – which as shown above, is at $1.69 trillion and remains more than double its projected target of $800 billion at Dec 31 – between now and year end.

So, as BofA first hinted last week, if no deal is reached this quarter, the Treasury would need to pay down nearly $1 trillion worth of bills in the next two months to reach its year-end cash target of $800bn, writes Barclays strategist Joseph Abate.

And yet, another fiscal stimulus deal remains just a matter of time, the only question is whether before the election, or after. That however is a key wildcard for the massive cash holdings at the Treasury, which Trump was hoping to use up before the election and prop up the economy.

Indeed, as Abate writes, a spending package is still likely in the new year, and since “the purpose of the Treasury’s cash stockpile was to have immediately available resources to finance a portion of any new stimulus, we see no reason for the Treasury to cut bill issuance aggressively this quarter.”

Moreover, the decline in bill rates over the summer means the Treasury may have a harder time selling large amount of bills next year. “This may be an additional reason why the Treasury has not decided to pay down bills or run down its cash balance in case it would be forced back into the bill market,” according to Abate.

For its part, Barclays expects the Treasury will flag a one-year note linked to SOFR at the November refunding announcement, with the first sale delayed until February. The Treasury will probably need to trim bill issuance to make room for the new note, in addition to any potential supply changes created by a stimulus package.

Maybe, but there’s more: as BofA rates strategist Marc Cabana wrote last week, the Treasury will ultimately target a $400bn cash balance after stimulus needs are met & PPP loan forgiveness is complete, suggesting a $1.2 trillion drawdown from current cash levels. Making matters worse, and why the Treasury could face material pressure to get their cash balance even lower by the summer of next year is that the Treasury will need to lower their cash balance to $133bn by end July ’21 to be in compliance with the existing debt limit law (the 2019 Bi-Partisan Budget Act suspended the debt limit through end July ’21 but when the debt limit is reinstated UST needs to hold no more cash on hand vs when the bill was originally signed into law which is $133bn).

As a result, if a new debt ceiling is not instituted before end July ’21 – due to continued Congressional bickering for example – it could imply less financing need from bills, all else equal. The impact of different TGA levels on expected Q420 and 1H21 net bill supply in tables 3 and 4.

What all of this boils down to, simply said, is that depending on the trajectory of stimulus discussions, the Treasury could see vast swings in its cash balance which in turn would affect its Bill financing strategy. As we discussed last week, there is a range of bill supply outcomes between now & 1H ’21 as shown in Table 2. Much of the bill supply impact will be a function of the Treasury cash balance level, which remains near record levels. The implications of a few bill supply scenarios are listed below:

  • Pre-election stimulus: In Q4 ’20 bill supply would likely total $250-$300bn. The Treasury will drop their cash balance to $1tn, which would add ~$600bn of cash into the banking system. The expected increase in banking system cash would likely overwhelm bill supply & keep front end rates stable to lower.
  • Base case (no stimulus pre-election, $1.5tn post inauguration): In Q4 ’20 bill supply will likely be flat or slightly negative with a Treasury cash balance at year-end of $1.6tn. This is lower vs prior forecasts due to a downward revision in deficit estimates and the TGA ending September higher than BofA had previously anticipated. In 1H ’21 bill supply will also likely be flat on net but there may be one notable variation; Cabana “might anticipate” $200-$300bn bill supply after stimulus is passed in Feb or March but expect this would be paid down after the April tax date. The decline in Treasury cash balance will limit the need for elevated bill supply.
  • Extreme scenarios: in 1H ’21 a “supersized” or “skinny” deal could see bill supply range from positive $350-$400bn to negative $1tn. In a “supersized” scenario the bill supply increase would likely be greatest after a bill is passed in Feb or March ’21. In a “skinny” deal the risk of sharply negative bill supply stems from a potential “forced” reduction of the Treasury cash balance. 

The bottom line is that depending on the outcome of the ongoing stimulus discussions, the Treasury may end up injecting approximately $600 billion of cash into the banking system as existing Bills mature and are not rolled over, which according to Cabana “would likely overwhelm bill supply & keep front end rates stable to lower.” It would also mean that banks suddenly have to allocate a massive amount of excess cash into various securities, which if previous instances of such capital reallocation inflection points are an indicator, would – together with the Fed’s ongoing injection of at least $120BN in reserves each month courtesy of QE – result in a wholesale meltup across the entire risk spectrum.

The irony of all this is that should there be no fiscal deal, and should Trump lose the election, the market may end up exploding higher in the last weeks of the year… just as the US economy – starved for more stimulus capital – careens into a double dip depression.

via ZeroHedge News https://ift.tt/30S8sb1 Tyler Durden

Don’t Assume Gen Z Will Show Up

Don’t Assume Gen Z Will Show Up

Tyler Durden

Sat, 10/10/2020 – 19:00

Authored by Samuel Abrams via RealClearPolitics.com,

As the November presidential election approaches, stories abound showing overwhelming support among Generation Z for former Vice President Joe Biden over President Trump, with claims like “Young voters backing Biden by 2-to-1 margin.”

While many may assume widespread electoral support for Biden among younger voters is a fait accompli, a surprising number of Gen Z voters may have already chosen to opt out of voting come November.

The idea that these voters would essentially “stay home” on Election Day is counterintuitive, given their heightened interest in our polarized times, but my ideas changed once the fall school year reopened and I had a chance to speak with scores of students around the country. Their stories were consistent: Gen Zers were having trouble accepting Joe Biden as their candidate of choice and staying home and opting out was appealing to them. Despite my comments that this could lead to a second Trump term, students consistently said that Biden did not inspire them. New survey data suggests that Gen Z’s turnout may be overstated. Politicos should take note.

First, the fall youth poll from Harvard’s Institute of Politics finds a significant enthusiasm gap between the candidates: 56% of America’s 18-to-29-year-old likely voters who support Trump are “very enthusiastic” about voting for him. This stands in stark contrast to just 35% of likely voters who back Biden. Those in Gen Z are generally not excited about the Democratic nominee and tell me that they were deflated when more progressive candidates dropped out of the race. Such low levels of enthusiasm may not translate to actually casting a ballot.

Second, as the American Enterprise Institute’s new “Socially Distant: How Our Divided Social Networks Explain Our Politics” survey reveals, just 7% of Gen Zers have a very favorable view of Biden while another 40% have a favorable view – making for a 47% overall favorability rating. While this is appreciably higher than Trump’s 20% favorability rating, it is anything but a landslide of support from younger Americans for Biden. My students regularly share the fact that they have trouble getting behind Biden given his  history of inappropriately touching women and his less than consistent left-of-center positions. This fact, along with the Harvard enthusiasm data, again suggests that the drive to vote for Biden may indeed be lower than many narratives assert; candidates need to inspire voters to drive turnout.

Relatedly, the survey asks if it has been easy or hard to make a decision about who to vote for this year (2020). Given the polarized climate and the overall disdain for the Trump administration among young people, one would think that making a decision about voting in a few weeks should be fairly easy. However, 30% of Gen Zers and Millennials state that their decision was hard – this is significantly higher than their parents (21%) and grandparents (14% for Boomers and 10% of Silents) – and again provides a hint of evidence that Gen Zers may opt out of voting entirely.

Going further, when asked who they’d vote for if the election were held today, Gen Z is not uniformly in support of Biden: 57% would vote for Biden and 18% for Trump. But 6% state someone else and another 19% say that they will sit this election out. And compared to the older cohorts, this intention to sit out is very different: Just 8% of Gen Xers and 5% of Boomers do not intend to vote.

Moreover, when asked about how certain they are about their choice, those in Gen Z are less certain compared to older cohorts. Just 51% of those in Gen Z state that they are absolutely certain that they will vote in the 2020 election; this shows that Biden’s support in large numbers is not assured. In contrast, 71% of those in Gen X and 80% of the Boomers state that they are absolutely certain that they will vote.

Finally, the survey data makes it clear that those in Gen Z are politically engaged, but not necessarily with the election. Two-thirds (67%) have been following the election fairly or very closely, notably lower than the 88% who have been paying attention to the COVID-19 pandemic and the 80% who are following the BLM protests. Gen Zers are not ignoring current events, but they may be increasingly disinterested in the election itself.

Collectively, these data points confirm a story that my students have been sharing with me for the past month: Do not assume that Gen Zers will vote this fall. Excitement for Biden is low and large numbers of Gen Zers already report that they do not intend to vote in November. Given the fact that survey data on vote intentions often over-report turnout intention, it is quite possible that participation will be far lower among our youngest cohort of voting-aged Americans. The electoral implications could be significant and help swing the nation back to Trump for another four years.

via ZeroHedge News https://ift.tt/33NtZU7 Tyler Durden

Legal Director Opening at Institute for Free Speech

I am happy to pass along this job announcement.

The Institute for Free Speech anticipates the need for a highly experienced attorney to direct its litigation and legal advocacy. In September, President Trump announced the nomination of our longtime Legal Director to the Federal Election Commission and it is likely he would be confirmed this fall. Once the hearing for that nomination is officially announced, the Institute for Free Speech will move forward with interviewing applicants.

About the Institute for Free Speech:

Founded in 2005 by former Federal Election Commission Chairman Bradley A. Smith, the nonpartisan Institute for Free Speech promotes and defends First Amendment rights to freely speak, assemble, publish, and petition the government.

Our specialty is the regulation of political activity. Our legal work primarily challenges campaign finance and lobbying laws that restrict First Amendment rights. We also represent clients in First Amendment challenges to laws that limit speech about government, and we engage publicly on the full range of First Amendment-protected activity.

The Opportunity to Lead Our Legal Team:

This is a rare opportunity to develop and implement a long-term legal strategy directed toward the protection of Constitutional rights. You would work to create legal precedents clearing away a thicket of laws and regulations that suppress speech about government and candidates for political office, that threaten citizens’ privacy if they speak or join groups, and that impose heavy burdens on organized political activity.

The litigation and legal advocacy you would oversee comprises about half of our program activities. The other half consists of traditional think tank work such as research, education, communications, and external relations.

The Legal Director Opening:

The Legal Director will direct our litigation and legal advocacy, lead our in-house legal team, and manage and expand our network of volunteer attorneys.

The Legal Director must have extensive litigation experience and a broad background in legal advocacy. Ideally the Legal Director will have deep First Amendment or constitutional law expertise. Familiarity with campaign finance or lobbying law is a significant plus. The Legal Director will work with senior management to set organizational priorities. The position reports directly to our President.

As a senior legal position with a leading nonprofit organization, it requires substantial travel (post-pandemic, we estimate 10-20% for the DC-based Legal Director), significant working hours, and the ability to act autonomously.

A strong preference will be given to candidates who can work in our Washington, D.C. headquarters. However, we will consider exceptionally strong candidates living and working virtually from anywhere in the country. In addition to litigation-related or advocacy-related travel, a virtual candidate would be required to travel for regular week-long visits to IFS’s headquarters after the pandemic’s impact has receded.

Duties and Responsibilities:

  • Develop and implement priorities for the legal program, including non-litigation legal work to protect free speech.
  • Identify and develop litigation opportunities to expand free speech.
  • Oversee all litigation and legal advocacy, supervising a team that presently includes seven attorneys, with plans to grow. Legal advocacy includes testimony before Congress and state legislatures, and appearances in rulemakings and adjudications before the Federal Election Commission and other federal and state agencies.
  • Recruit new members of the legal team and oversee the team’s professional development.
  • Recruit volunteer attorneys to write amicus briefs, participate in litigation, or engage in other legal advocacy.
  • Serve as counsel of record in our most important cases.
  • Develop and maintain relationships with allied public interest law organizations.
  • Serve as a media spokesperson and as a speaker at conferences and meetings held by other organizations.
  • Advise our communications team on articles and publications covering our litigation and legal advocacy.

Professional Requirements and Qualifications:

  • Passion for our mission to defend and expand political speech rights.
  • At least 10 years of active trial litigation experience in complex cases, with proven first-chair experience in federal court. Federal clerkships may substitute up to two years of that experience.
  • Proven innovator.
  • Strong leadership skills and a proven ability to exercise sound judgement.
  • Meticulously organized and detail-oriented approach to work product, and a demonstrated ability to work collaboratively in a fast-paced environment.
  • Demonstrated ability to work under pressure, meet deadlines, and work long hours when required.
  • Strong verbal and interpersonal skills, exceptional writing ability, and an ability to manage multiple projects simultaneously.
  • Demonstrated understanding of civil rights and civil liberties issues, particularly in the areas of campaign finance regulation and associational privacy, is a significant plus.
  • Membership in good standing of a state bar, and eligibility for admission to the bar of the District of Columbia, the U.S. District Court for the District of Columbia and the U.S. Supreme Court.

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“Schools Aren’t Superspreaders” – The Atlantic Explains Why Students Should Be Back In School, Now

“Schools Aren’t Superspreaders” – The Atlantic Explains Why Students Should Be Back In School, Now

Tyler Durden

Sat, 10/10/2020 – 18:30

After months of waging war, mainstream media outlets recently started to seriously address the reality of herd immunity, or at least the type of “focused” approach described in documents like the Great Barrington declaration, as a credible alternative to the lockdown-first strategy embraced by Dr. Fauci and the public health establishment around the world, to varying degrees of success.

So far, we’ve seen WSJ (these are just a couple of examples), the FT and now the Atlantic, with its “Schools Aren’t Super Spreaders” article about why schools – at least for minor students – haven’t emerged as the COVID-19 breeding grounds that many feared.

The article was written by Emily Oster, an economist at Brown University. In it, she makes some surprising points. Before readers can write her off as an “economist” and not a “subject matter expert”, Oster explains that she has been working with national teacher and principal associations to collect data on school reopenings as part of a sprawling research project, which was also recently profiled in the NYT.

While Brown acknowledges that she has seen a deluge of stories and datas about small (but decidedly not deadly) outbreaks on colleges campuses, she notes that there has been vanishingly little evidence of outbreaks in K-12 schools, whether private or public.

Data on almost 200,000 kids in 47 states from the last two weeks of September shows an infection rate of 0.13% among students and 0.24% among staff. That translates to 1.3 infections over two weeks in a school of 1,000 kids, or 2.2 infections over two weeks in a group of 1,000 staff. Even in the most high-risk areas where schools were open, the risk to students was always well under half a percent, Oster explains.

What’s more, researchers in Texas and other states have arrived at similar conclusions.

Since early last month, I’ve been working with a group of data scientists at the technology company Qualtrics, as well as with school-principal and superintendent associations, to collect data on COVID-19 in schools. (See more on that project here.) Our data on almost 200,000 kids in 47 states from the last two weeks of September revealed an infection rate of 0.13 percent among students and 0.24 percent among staff. That’s about 1.3 infections over two weeks in a school of 1,000 kids, or 2.2 infections over two weeks in a group of 1,000 staff. Even in high-risk areas of the country, the student rates were well under half a percent. (You can see all the data here.)

School-based data from other sources show similarly low rates. Texas reported 1,490 cases among students for the week ending on September 27, with 1,080,317 students estimated at school—a rate of about 0.14 percent. The staff rate was lower, about 0.10 percent.

Of course, as Oster readily acknowledges, while these infection numbers are low, and deaths (among the children, at least) have been rare, they’re not zero.

But for everybody who insists on 100% safety, Oster warns, it comes at a serious cost to the long-term well-being of children. And this burden is felt most intensely by low-income families and students, as parents simply don’t have the time and resources to supervise their child’s education from home.

While infection numbers across the US have picked back up since Labor Day, Oster claims there’s no evidence connecting this to schools reopening. Indeed, even with schools still virtual in the nation’s largest districts, cases have still rebounded.

The risk to children, at this point, has been well documented.

One might argue, again, that any risk is too great, and that schools must be completely safe before local governments move to reopen them. But this approach ignores the enormous costs to children from closed schools. The spring interruption of schooling already resulted in learning losses; Alec MacGillis’s haunting piece in The New Yorker and ProPublica highlights the plight of one child unable to attend school in one location, but it’s a marker for more. The children affected by school closures are disproportionately low-income students of color. Schools are already unequal; the unequal closures make them more so. Virtual school is available, but attendance levels are not up to par. Pediatricians have linked remote schooling to toxic stress.

Parents are struggling as well, not just children. Cities have recognized the need for child care for parents who cannot afford to quit their jobs to supervise their kids, but this has led to a haphazard network of options. Houston, for example, has opened some schools as learning centers. L.A. has learning centers set up for low-income students in alternative locations. These spur the questions: If school isn’t safe for everyone, why is it safe for low-income students? And if school is safe for low-income students, why isn’t it safe for everyone?

From all the data she’s collected and distilled, Oster concludes simply this: “We do not want to be cavalier or put people at risk. But by not opening, we are putting people at risk, too.”

It’s just another example of how research is challenging credentialed experts’ initial assumptions about COVID-19. With publications like the Atlantic already starting to take this line of thinking seriously, why is Silicon Valley still trying to suppress dissenting thinkers on similar issues like the Great Barrington Declaration?

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Ninth Circuit Rules Against Trump’s Diversion of Military Construction Funds to Build his Border Wall

Border Wall 2

Yesterday, in Sierra Club v. Trump, the US Court of Appeals for the Ninth Circuit ruled that President Trump’s effort to divert military construction funds is illegal. This is the first appellate decision addressing the issue of whether Trump could use a national emergency declaration to divert funds to the border wall by using 10 USC Section 2808, which, says that “In the event of a declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act…  that requires use of the armed forces,” the Department of Defense will have the power  to divert military construction funds “undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces.” A previous Ninth Circuit decision ruled it is illegal for Trump to divert funds by using Section 8005 of the the 2019 Department of Defense Appropriations Act.

The majority opinion, written by Chief Judge Sidney Thomas, relies on several obvious shortcomings in the administration’s position:

Section 2808 allows the Secretary of Defense to undertake military construction projects in the event of a national emergency requiring the use of the armed forces, but the statute specifies that such projects must be “necessary to support such use of the armed forces.” The district court’s analysis is persuasive on this issue, and we hold that border wall construction is not necessary to support the use of the armed forces with respect to the national emergency on the southern border. The Federal Defendants have not established that the projects are necessary to support the use of the armed forces because: (1) the administrative record shows that the border wall projects are intended to support and benefit DHS—a civilian agency—rather than the armed forces, and (2) the Federal Defendants have not established, or even alleged, that the projects are, in fact,necessary to support the use of the armed forces.

First, the record illustrates that the border wall projects are intended to benefit [the Department of Homeland Security] and its subagencies, CBP and U.S. Border Patrol (“USBP”), not the armed forces. The record demonstrates that DoD primarily considered the many benefits to these civilian agencies in determining that physical barriers are necessary….

To the extent DoD decision-makers believed that construction would benefit DoD at all, the record demonstrates that the construction is merely expected to help DoD help DHS. DoD determined that the barriers would serve as force multipliers,” by allowing military personnel to cover other high-traffic border areas without existing barriers, a benefit plainly intended to assist DHS, which, by statute, is tasked with “[s]ecuring the borders, territorial waters, ports, terminals, waterways, and air, land, and sea transportation systems of the United States….”

Second, the Federal Defendants have not even alleged, let alone established as a matter of fact, that the border wall construction projects are “necessary” under any ordinary understanding of the word. See MERRIAM-WEBSTER ONLINE DICTIONARY (defining “necessary” as “absolutely needed: required”); OXFORD ENGLISH DICTIONARY ONLINE (defining “necessary” as “[i]ndispensable, vital, essential”). In assessing the necessity of the border wall construction projects, the Federal Defendants concluded: “In short, these barriers will allow DoD to provide support to DHS more efficiently and effectively. In this respect the contemplated construction projects are force multipliers.” Efficiency and efficacy are not synonymous with necessity…..

“Necessary” as it appears in Section 2808 is best understood as retaining its plain meaning, which means, at the very least, “required,” or “needed.” The fact that border wall construction might make DoD’s support more efficient and effective does not rise to the level of “required” or “needed”—and the Federal Defendants have failed to show that it does. That Congress declined to provide more substantial funding for border wall construction and voted twice to terminate the President’s declaration of a national emergency underscores that the border wall is not, in fact, required or needed.

The key point here is that, far from being a “military installation” or even one “necessary” to support the use of the armed forces, the purpose of the border wall is in fact to aid in civilian law enforcement (in this case with respect to drug and immigration laws).

In his dissenting opinion, Judge Daniel Collins argues that Section 2808 authorizes diversion of funds for pretty much any activity done within an area placed under military jurisdiction. He emphasizes that “military construction” under Section 2808 is understood to mean construction “with respect to a military installation,” under 10 USC Section 2801(a). “Military installation,” in turn, is defined as “a base, camp, post, station, yard,
center, or other activity under the jurisdiction of the Secretary of a military
department” (emphasis added by Collins). The Trump administration and Collins argue that “other activity” means any activity the Department of Defense might want to engage in that could, in its view, help address the “national emergency” declared by the President.

As Judge Thomas points out, this theory has the absurd consequence that it “would grant [the Department of Defense] essentially boundless authority to reallocate military construction funds to build anything they want, anywhere they want, provided they first obtain jurisdiction over the land where the construction will occur.” This approach becomes even more problematic in combination with the government’s position (not contested in this case) that the National Emergencies Act gives the president the power to declare any emergency at any time for virtually any reason he wants. Thus, he could use emergency declarations to transform military construction funds into a slush fund to build almost anything for any purpose whatsoever. Conservatives who might support the use of such power to build a border wall aren’t likely to be happy if Joe Biden (or some other Democratic president) uses the same reasoning to declare a national emergency over climate change or gun violence, and then use it to divert funds to build facilities for the Green New Deal, or to promote restrictions on gun rights.

Such boundless authority would raise obvious separation of powers problems, and it makes a hash of the overall structure of Section 2808, which is supposed to limit the relevant authority to divert funds to projects necessary to support military operations, not the use of the military for civilian law enforcement. In context, “other activities” should be understood to mean other military construction similar to those already enumerated (such as bases, camps, and so on).

I think the majority is also right in its approach to the definition of “necessary.” This issue is a closer call than the definition of “other activities.” As Judge Collins notes—there is a history of courts sometimes defining “necessary” to mean anything that is merely “useful” or “convenient,” as in McCulloch v. Maryland‘s famously expansive definition of “necessary” in the “Necessary and Proper Clause of the Constitution. But Chief Judge Thomas effectively argues that these broad definitions of “necessary” are all taken from unusual contexts where “necessary” is modified by some other term implying a broad construction (e.g.—”reasonably necessary”), or that the the word is supposed to be broad because of the special nature of Article I of the Constitution (in the case of the Necessary and Proper Clause).

My own (admittedly unpopular) view is that Chief Justice John Marshall simply got the meaning of “necessary” wrong in McCulloch, and that James Madison and Thomas Jefferson, among others, were right to argue that it should have been read to mean something like “essential,” rather than merely convenient. Regardless, Marshall was careful to emphasize that his broad construction was justified only because of the constitutional context, where broad construction of powers is supposedly needed because “we must never forget that it is a Constitution we are expounding.” The same isn’t true in the context of a federal statute, where an ultrabroad construction like the one advocate by Collins and the Trump administration would actually have the effect of undermining Congress’ constitutional control over federal spending by giving the president virtually boundless discretion to reallocate construction funds however he wants.

The majority and dissenting opinions in this case address a great many other issues, as well, and collectively run to over 120 pages. Among other things, it is notable that both Thomas and Collins conclude that many of the plaintiffs (who include both private organizations and state governments) have standing to sue, and also have legitimate causes of action. Previous rulings against the administration in various border wall cases have been set aside by the the Supreme Court and the Fifth Circuit. This one might not suffer the same fate.

The Trump Administration can take some comfort from the fact that the judges in this case split along ideological lines, with two liberal Democratic appointees in the majority, and a conservative Republican Trump appointee dissenting. If the  case reaches the Supreme Court and the same sort of split happens, the administration will prevail.

However, as a recent DC Circuit decision authored by prominent conservative Judge David Sentelle shows, not all the rulings on these issues necessarily split judges along ideological lines. While Judge Sentelle’s decision merely holds that the House of Representatives has standing to challenge the border wall funding diversion, his reasoning also highlights the important separation of powers reasons why the president should not be allowed to claim such broad power to divert federal funds to whatever ends he wishes.

Yesterday’s decision is just the latest phase in a prolonged legal battle over the border wall diversion. Unless Joe Biden wins the presidential election and terminates the border wall project (as he has promised to do), the issue could well end up in the Supreme Court.

Still, the combination of this ruling and the recent DC Circuit decision on congressional standing are important victories for opponents of the wall. In combination, they make a strong case against the administration’s position on both procedural questions and many of substantive issues at stake in the border wall cases.

The issues addressed in yesterday’s ruling are far from the only ones raised by the border wall diversion. Others include  whether the situation at the border qualifies as “national emergency” under the National Emergencies Act of 1976  at all, and whether the president has the authority to use eminent domain to seize property for border wall construction not specifically authorized by Congress. There is also the issue of whether the kind of virtually unconstrained authority  to divert federal funds claimed by the administration violates the nondelegation doctrine—a problem that is a common thread in many of Trump’s immigration and trade policies.

History shows that power accumulated by one president tend to be used by his successors, as well—even by those with very different political agendas. Whether or not he ultimately succeeds in building the border wall, Trump’s attempted power grab here could set a dangerous precedent—if the courts allow him to do so.

 

 

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Legal Director Opening at Institute for Free Speech

I am happy to pass along this job announcement.

The Institute for Free Speech anticipates the need for a highly experienced attorney to direct its litigation and legal advocacy. In September, President Trump announced the nomination of our longtime Legal Director to the Federal Election Commission and it is likely he would be confirmed this fall. Once the hearing for that nomination is officially announced, the Institute for Free Speech will move forward with interviewing applicants.

About the Institute for Free Speech:

Founded in 2005 by former Federal Election Commission Chairman Bradley A. Smith, the nonpartisan Institute for Free Speech promotes and defends First Amendment rights to freely speak, assemble, publish, and petition the government.

Our specialty is the regulation of political activity. Our legal work primarily challenges campaign finance and lobbying laws that restrict First Amendment rights. We also represent clients in First Amendment challenges to laws that limit speech about government, and we engage publicly on the full range of First Amendment-protected activity.

The Opportunity to Lead Our Legal Team:

This is a rare opportunity to develop and implement a long-term legal strategy directed toward the protection of Constitutional rights. You would work to create legal precedents clearing away a thicket of laws and regulations that suppress speech about government and candidates for political office, that threaten citizens’ privacy if they speak or join groups, and that impose heavy burdens on organized political activity.

The litigation and legal advocacy you would oversee comprises about half of our program activities. The other half consists of traditional think tank work such as research, education, communications, and external relations.

The Legal Director Opening:

The Legal Director will direct our litigation and legal advocacy, lead our in-house legal team, and manage and expand our network of volunteer attorneys.

The Legal Director must have extensive litigation experience and a broad background in legal advocacy. Ideally the Legal Director will have deep First Amendment or constitutional law expertise. Familiarity with campaign finance or lobbying law is a significant plus. The Legal Director will work with senior management to set organizational priorities. The position reports directly to our President.

As a senior legal position with a leading nonprofit organization, it requires substantial travel (post-pandemic, we estimate 10-20% for the DC-based Legal Director), significant working hours, and the ability to act autonomously.

A strong preference will be given to candidates who can work in our Washington, D.C. headquarters. However, we will consider exceptionally strong candidates living and working virtually from anywhere in the country. In addition to litigation-related or advocacy-related travel, a virtual candidate would be required to travel for regular week-long visits to IFS’s headquarters after the pandemic’s impact has receded.

Duties and Responsibilities:

  • Develop and implement priorities for the legal program, including non-litigation legal work to protect free speech.
  • Identify and develop litigation opportunities to expand free speech.
  • Oversee all litigation and legal advocacy, supervising a team that presently includes seven attorneys, with plans to grow. Legal advocacy includes testimony before Congress and state legislatures, and appearances in rulemakings and adjudications before the Federal Election Commission and other federal and state agencies.
  • Recruit new members of the legal team and oversee the team’s professional development.
  • Recruit volunteer attorneys to write amicus briefs, participate in litigation, or engage in other legal advocacy.
  • Serve as counsel of record in our most important cases.
  • Develop and maintain relationships with allied public interest law organizations.
  • Serve as a media spokesperson and as a speaker at conferences and meetings held by other organizations.
  • Advise our communications team on articles and publications covering our litigation and legal advocacy.

Professional Requirements and Qualifications:

  • Passion for our mission to defend and expand political speech rights.
  • At least 10 years of active trial litigation experience in complex cases, with proven first-chair experience in federal court. Federal clerkships may substitute up to two years of that experience.
  • Proven innovator.
  • Strong leadership skills and a proven ability to exercise sound judgement.
  • Meticulously organized and detail-oriented approach to work product, and a demonstrated ability to work collaboratively in a fast-paced environment.
  • Demonstrated ability to work under pressure, meet deadlines, and work long hours when required.
  • Strong verbal and interpersonal skills, exceptional writing ability, and an ability to manage multiple projects simultaneously.
  • Demonstrated understanding of civil rights and civil liberties issues, particularly in the areas of campaign finance regulation and associational privacy, is a significant plus.
  • Membership in good standing of a state bar, and eligibility for admission to the bar of the District of Columbia, the U.S. District Court for the District of Columbia and the U.S. Supreme Court.

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Transportation Capacity Hits New Lows, “No Relief In Sight” For Pricing

Transportation Capacity Hits New Lows, “No Relief In Sight” For Pricing

Tyler Durden

Sat, 10/10/2020 – 18:00

By Todd Maiden of FreightWaves,

A September supply chain survey shows transportation capacity has reached new lows. The Logistics Managers’ Index (LMI), a survey of leading logistics executives, showed capacity fell to new lows, dipping another 770 basis points during the month to a 23.8% reading.

The LMI is a diffusion index, wherein a reading above 50% indicates expansion and a reading below 50% indicates contraction. The survey captures the rate of change in activity for key supply chain trends in areas like transportation, inventory and warehousing.

The September transportation capacity reading was the lowest level ever for any of the eight metrics the survey tracks. The capacity situation was even worse for “downstream firms,” or those closest to the consumer, at 16.3%.

“Clearly consumer-facing firms are struggling to find the capacity needed to meet the increasing consumer appetite for home delivery,” the report stated. “It is interesting that logistics capacity is already this pressed at the end of Q3. Traditionally Q4 is when we see peak logistics demand, so the fact that it’s already close to maximum utilization calls into question whether or not missed or late deliveries will become an issue through peak retail times in November and December.”

The lack of available capacity was also “reflected in the premium firms are paying.” The transportation pricing subindex increased 410 basis points in the month to 87.9%, the highest reading since October 2018. “Observing the last two years of transportation prices shows a U-shaped trend, with September’s rate of growth representing a return to the heady days of mid-to-late 2018,” the report stated.

The overall index increased 450 basis points from August to 70.5% in September, the first reading north of 70% since October 2018 and only the sixth time the index has breached 70% since its inception in 2016. The index bottomed during the depths of the pandemic-induced shutdowns in April at 51.3%.

“Growth rates in the logistics industry are roaring” because of e-commerce, the report said. 

“Digital-heavy retail methods allow concerned shoppers to avoid in-person stores but are also more logistics resource intensive. Logistics-intensive commerce becoming a more significant proportion of retail activity explains why the metrics tracked in the LMI are increasing at rates not seen since mid-2018, in spite of the relatively modest overall economic growth,” it said.

Capacity declines to moderate, pricing to remain high

The survey captures 12-month forward-looking expectations as well. Respondents indicated that they expect capacity to continue to contract over the next year but at a more subdued pace. The future indication for capacity registered at 48.1%, still in contraction territory, but up significantly from the August prediction of 31.7%.

However, increases in transportation pricing show no signs of letting up. Survey respondents registered an 85.8% reading for the index one year from now, implying that the current high rate at which transportation pricing is increasing is expected to continue. “Respondents clearly expect the continued tightness in the freight market to result in increasing costs – with no relief in sight.”

Inventory and warehousing

The rate of inventory growth moved higher, up 330 basis points to a 61.4% reading during the month. Inventories have remained in expansion territory since March. “Bustling port activity as firms move to replenish the inventory from international suppliers that they were unable to procure early in the summer” was listed as the primary reason. Additionally, the costs to hold inventory remain on an upward trajectory, up 110 basis points at 65.8%

All of the warehousing metrics – capacity, utilization and prices – continued to show tightening in the logistics real estate market.  Capacity declined 740 basis points to contraction territory at 43.1%, with utilization increasing 590 basis points to 71.1%. The warehousing prices component increased 190 basis points to 70.5%.

“At this point it seems likely that these high rates of growth will continue even if the overall economy is slow in Q4. The dramatic reliance on logistics services due to the pandemic may insulate the industry from moderate economic downturns in the near future.”

The LMI is a collaboration among Arizona State University, Colorado State University, Rochester Institute of Technology, Rutgers University and the University of Nevada, Reno, conducted in conjunction with the Council of Supply Chain Management Professionals.

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Ninth Circuit Rules Against Trump’s Diversion of Military Construction Funds to Build his Border Wall

Border Wall 2

Yesterday, in Sierra Club v. Trump, the US Court of Appeals for the Ninth Circuit ruled that President Trump’s effort to divert military construction funds is illegal. This is the first appellate decision addressing the issue of whether Trump could use a national emergency declaration to divert funds to the border wall by using 10 USC Section 2808, which, says that “In the event of a declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act…  that requires use of the armed forces,” the Department of Defense will have the power  to divert military construction funds “undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces.” A previous Ninth Circuit decision ruled it is illegal for Trump to divert funds by using Section 8005 of the the 2019 Department of Defense Appropriations Act.

The majority opinion, written by Chief Judge Sidney Thomas, relies on several obvious shortcomings in the administration’s position:

Section 2808 allows the Secretary of Defense to undertake military construction projects in the event of a national emergency requiring the use of the armed forces, but the statute specifies that such projects must be “necessary to support such use of the armed forces.” The district court’s analysis is persuasive on this issue, and we hold that border wall construction is not necessary to support the use of the armed forces with respect to the national emergency on the southern border. The Federal Defendants have not established that the projects are necessary to support the use of the armed forces because: (1) the administrative record shows that the border wall projects are intended to support and benefit DHS—a civilian agency—rather than the armed forces, and (2) the Federal Defendants have not established, or even alleged, that the projects are, in fact,necessary to support the use of the armed forces.

First, the record illustrates that the border wall projects are intended to benefit [the Department of Homeland Security] and its subagencies, CBP and U.S. Border Patrol (“USBP”), not the armed forces. The record demonstrates that DoD primarily considered the many benefits to these civilian agencies in determining that physical barriers are necessary….

To the extent DoD decision-makers believed that construction would benefit DoD at all, the record demonstrates that the construction is merely expected to help DoD help DHS. DoD determined that the barriers would serve as force multipliers,” by allowing military personnel to cover other high-traffic border areas without existing barriers, a benefit plainly intended to assist DHS, which, by statute, is tasked with “[s]ecuring the borders, territorial waters, ports, terminals, waterways, and air, land, and sea transportation systems of the United States….”

Second, the Federal Defendants have not even alleged, let alone established as a matter of fact, that the border wall construction projects are “necessary” under any ordinary understanding of the word. See MERRIAM-WEBSTER ONLINE DICTIONARY (defining “necessary” as “absolutely needed: required”); OXFORD ENGLISH DICTIONARY ONLINE (defining “necessary” as “[i]ndispensable, vital, essential”). In assessing the necessity of the border wall construction projects, the Federal Defendants concluded: “In short, these barriers will allow DoD to provide support to DHS more efficiently and effectively. In this respect the contemplated construction projects are force multipliers.” Efficiency and efficacy are not synonymous with necessity…..

“Necessary” as it appears in Section 2808 is best understood as retaining its plain meaning, which means, at the very least, “required,” or “needed.” The fact that border wall construction might make DoD’s support more efficient and effective does not rise to the level of “required” or “needed”—and the Federal Defendants have failed to show that it does. That Congress declined to provide more substantial funding for border wall construction and voted twice to terminate the President’s declaration of a national emergency underscores that the border wall is not, in fact, required or needed.

The key point here is that, far from being a “military installation” or even one “necessary” to support the use of the armed forces, the purpose of the border wall is in fact to aid in civilian law enforcement (in this case with respect to drug and immigration laws).

In his dissenting opinion, Judge Daniel Collins argues that Section 2808 authorizes diversion of funds for pretty much any activity done within an area placed under military jurisdiction. He emphasizes that “military construction” under Section 2808 is understood to mean construction “with respect to a military installation,” under 10 USC Section 2801(a). “Military installation,” in turn, is defined as “a base, camp, post, station, yard,
center, or other activity under the jurisdiction of the Secretary of a military
department” (emphasis added by Collins). The Trump administration and Collins argue that “other activity” means any activity the Department of Defense might want to engage in that could, in its view, help address the “national emergency” declared by the President.

As Judge Thomas points out, this theory has the absurd consequence that it “would grant [the Department of Defense] essentially boundless authority to reallocate military construction funds to build anything they want, anywhere they want, provided they first obtain jurisdiction over the land where the construction will occur.” This approach becomes even more problematic in combination with the government’s position (not contested in this case) that the National Emergencies Act gives the president the power to declare any emergency at any time for virtually any reason he wants. Thus, he could use emergency declarations to transform military construction funds into a slush fund to build almost anything for any purpose whatsoever. Conservatives who might support the use of such power to build a border wall aren’t likely to be happy if Joe Biden (or some other Democratic president) uses the same reasoning to declare a national emergency over climate change or gun violence, and then use it to divert funds to build facilities for the Green New Deal, or to promote restrictions on gun rights.

Such boundless authority would raise obvious separation of powers problems, and it makes a hash of the overall structure of Section 2808, which is supposed to limit the relevant authority to divert funds to projects necessary to support military operations, not the use of the military for civilian law enforcement. In context, “other activities” should be understood to mean other military construction similar to those already enumerated (such as bases, camps, and so on).

I think the majority is also right in its approach to the definition of “necessary.” This issue is a closer call than the definition of “other activities.” As Judge Collins notes—there is a history of courts sometimes defining “necessary” to mean anything that is merely “useful” or “convenient,” as in McCulloch v. Maryland‘s famously expansive definition of “necessary” in the “Necessary and Proper Clause of the Constitution. But Chief Judge Thomas effectively argues that these broad definitions of “necessary” are all taken from unusual contexts where “necessary” is modified by some other term implying a broad construction (e.g.—”reasonably necessary”), or that the the word is supposed to be broad because of the special nature of Article I of the Constitution (in the case of the Necessary and Proper Clause).

My own (admittedly unpopular) view is that Chief Justice John Marshall simply got the meaning of “necessary” wrong in McCulloch, and that James Madison and Thomas Jefferson, among others, were right to argue that it should have been read to mean something like “essential,” rather than merely convenient. Regardless, Marshall was careful to emphasize that his broad construction was justified only because of the constitutional context, where broad construction of powers is supposedly needed because “we must never forget that it is a Constitution we are expounding.” The same isn’t true in the context of a federal statute, where an ultrabroad construction like the one advocate by Collins and the Trump administration would actually have the effect of undermining Congress’ constitutional control over federal spending by giving the president virtually boundless discretion to reallocate construction funds however he wants.

The majority and dissenting opinions in this case address a great many other issues, as well, and collectively run to over 120 pages. Among other things, it is notable that both Thomas and Collins conclude that many of the plaintiffs (who include both private organizations and state governments) have standing to sue, and also have legitimate causes of action. Previous rulings against the administration in various border wall cases have been set aside by the the Supreme Court and the Fifth Circuit. This one might not suffer the same fate.

The Trump Administration can take some comfort from the fact that the judges in this case split along ideological lines, with two liberal Democratic appointees in the majority, and a conservative Republican Trump appointee dissenting. If the  case reaches the Supreme Court and the same sort of split happens, the administration will prevail.

However, as a recent DC Circuit decision authored by prominent conservative Judge David Sentelle shows, not all the rulings on these issues necessarily split judges along ideological lines. While Judge Sentelle’s decision merely holds that the House of Representatives has standing to challenge the border wall funding diversion, his reasoning also highlights the important separation of powers reasons why the president should not be allowed to claim such broad power to divert federal funds to whatever ends he wishes.

Yesterday’s decision is just the latest phase in a prolonged legal battle over the border wall diversion. Unless Joe Biden wins the presidential election and terminates the border wall project (as he has promised to do), the issue could well end up in the Supreme Court.

Still, the combination of this ruling and the recent DC Circuit decision on congressional standing are important victories for opponents of the wall. In combination, they make a strong case against the administration’s position on both procedural questions and many of substantive issues at stake in the border wall cases.

The issues addressed in yesterday’s ruling are far from the only ones raised by the border wall diversion. Others include  whether the situation at the border qualifies as “national emergency” under the National Emergencies Act of 1976  at all, and whether the president has the authority to use eminent domain to seize property for border wall construction not specifically authorized by Congress. There is also the issue of whether the kind of virtually unconstrained authority  to divert federal funds claimed by the administration violates the nondelegation doctrine—a problem that is a common thread in many of Trump’s immigration and trade policies.

History shows that power accumulated by one president tend to be used by his successors, as well—even by those with very different political agendas. Whether or not he ultimately succeeds in building the border wall, Trump’s attempted power grab here could set a dangerous precedent—if the courts allow him to do so.

 

 

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