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SCOTUS Ruling on Adding a Citizenship Question to the Census Shows Wilbur Ross Was Defeated by His Own Lies

Today the Supreme Court agreed with a federal judge that the Commerce Department’s official reason for adding a citizenship question to the 2020 census was “pretextual,” which frustrated “meaningful judicial review” and violated the Administrative Procedure Act (APA). Although the majority opinion by Chief Justice John Roberts does not explicitly call Commerce Secretary Wilbur Ross a liar, that is the inescapable implication of the procedural history it reviews. The irony is that if Ross had been less dishonest, the Court almost certainly would have approved his decision, since it recognizes that he has broad discretion to determine census questions and that review under the APA is “deferential.”

Ross claimed he decided to add the citizenship question, which the Census Bureau has long worried would suppress responses from households that include unauthorized U.S. residents, because the Justice Department requested it, seeking data that would help enforce the Voting Rights Act (VRA). But the record revealed by litigation clearly shows that Ross aggressively solicited the Justice Department’s request to justify a decision he had already made.

The pains that Ross took to conceal the real reason for his decision invite the inference that it was unseemly in some way, and evidence suggests that partisan political concerns played a role. If the question led to undercounting of people in households that include illegal immigrants, that would work to the disadvantage of Democrats in redistricting and allocation of federal money, since such households are more common in the districts and states they represent. But the Court does not speculate about Ross’ actual motivation, restricting itself to concluding that the rationale he offered was phony.

That aspect of the decision was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh dissented, saying it was improper for the Court to question Ross’ motives as long as his decision was legal on its face. But any fair-minded person has to agree that Wilbur Ross was, shall we say, less than forthright in explaining the decision.

“Viewing the evidence as a whole, we share the District Court’s conviction that the decision to reinstate a citizenship question cannot be adequately explained in terms of DOJ’s request for improved citizenship data to better enforce the VRA,” Roberts writes. “Several points, considered together, reveal a significant mismatch between the decision the Secretary made and the rationale he provided.” Here are those points:

  1. “The record shows that the Secretary began taking steps to reinstate a citizenship question about a week into his tenure, but it contains no hint that he was considering VRA enforcement in connection with that project.”
  2. “The Secretary’s Director of Policy did not know why the Secretary wished to reinstate the question, but saw it as his task to ‘find the best rationale.'”
  3. “The Director initially attempted to elicit requests for citizenship data from the Department of Homeland Security and DOJ’s Executive Office for Immigration Review, neither of which is responsible for enforcing the VRA.”
  4. “After those attempts failed, he asked Commerce staff to look into whether the Secretary could reinstate the question without receiving a request from another agency.”
  5. “The possibility that DOJ’s Civil Rights Division might be willing to request citizenship data for VRA enforcement purposes was proposed by Commerce staff along the way and eventually pursued.”
  6. “Even so, it was not until the Secretary contacted the Attorney General directly that DOJ’s Civil Rights Division expressed interest in acquiring census-based citizenship data to better enforce the VRA. And even then, the record suggests that DOJ’s interest was directed more to helping the Commerce Department than to securing the data.”
  7. “The December 2017 letter from DOJ drew heavily on contributions from Commerce staff and advisors. Their influence may explain why the letter went beyond a simple entreaty for better citizenship data—what one might expect of a typical request from another agency—to a specific request that Commerce collect the data by means of reinstating a citizenship question on the census.”
  8. “Finally, after sending the letter, DOJ declined the Census Bureau’s offer to discuss alternative ways to meet DOJ’s stated need for improved citizenship data, further suggesting a lack of interest on DOJ’s part.”

“Altogether,” Roberts sums up, “the evidence tells a story that does not match the explanation the Secretary gave for his decision. In the Secretary’s telling, Commerce was simply acting on a routine data request from another agency. Yet the  materials before us indicate that Commerce went to great lengths to elicit the request from DOJ (or any other willing agency). And unlike a typical case in which an agency may have both stated and unstated reasons for a decision, here the VRA enforcement rationale—the sole stated reason—seems to have been contrived.”

Why does it matter? “In order to permit meaningful judicial review, an agency must ‘disclose the basis’ of its action,” Roberts writes. “The reasoned explanation requirement of administrative law…is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.”

The Court therefore agreed with U.S. District Judge Jesse Furman that the Commerce Department needs to try again, this time without lying. Since the department says it needs to start printing census forms by the end of this month, that ruling seems to doom Ross’ plan to include a citizenship question. But he has no one but himself to blame for that.

“We do not hold that the agency decision here was substantively invalid,” the Court notes, disagreeing with Furman’s conclusion that Ross’ decision violated the Census Act or was “arbitrary and capricious” under the APA. “But agencies must pursue their goals reasonably. Reasoned decisionmaking under the Administrative Procedure Act calls
for an explanation for agency action. What was provided here was more of a distraction.” That’s a diplomatic way of putting it.

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Chinese Consumers Shun All American Products As Nationalism Soars

Since President Trump escalated the trade war last month by slapping a 25% tariff on $200 billion worth of Chinese goods, and is on the verge of taxing the remainder, Beijing has spawned nationalist sentiment across the country that has left many Chinese consumers shunning American products, reported Reuters. 

According to a new poll conducted by London-based advisory firm Brunswick, which surveyed 1,000 Chinese consumers, 56% of respondents said they had avoided American products, while 68% said their impression of American firms has become increasingly negative.

“This poses a significant bottom-line risk to US companies as three in four Chinese consumers say they often buy products from American businesses,” Brunswick said on Wednesday.

Beijing’s call to nationalism is a significant shift in China’s negotiation strategy with Washington.

In a series of editorials and op-eds published early last month, Chinese state media slammed what it labeled the Trump administration’s “greed and arrogance,” called for a “people’s war” targeting the US “with precision” as China begins a “fight for a new world.”

“The most important thing is that in the China-US trade war, the US side fights for greed and arrogance … and morale will break at any point. The Chinese side is fighting back to protect its legitimate interests,” the nationalist, state-owned Global Times tabloid wrote.

Urging indirect boycott of US goods and services, the editorial slammed Trump and suggested a nation-wide uprising against the US aggression:

“The trade war in the US is the creation of one person and one administration, but it affects that country’s entire population. In China, the entire country and all its people are being threatened. For us, this is a real ‘people’s war.’ “

Whether this means a renewed collapse in Chinese iPhone sales or the boycott of Kentucky Fried Chicken, nationalism, driven by Beijing, sparked by President Trump’s trade war, is likely to have a significant effect on Wall Street’s performance – as a reminder, 30% of S&P500 revenues from international sales in 2017 came from China, a number that is set to tumble.

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“It’s A Scary Picture”: Midwest Farming Turmoil Being Compared To 2008 Housing Crisis

The wettest year in memory continues to decimate corn crops across the midwest, according to Bloomberg.

And it’s not just farmers that are bearing the brunt of the flooding, it’s the entire agricultural economy. Those that provide supplies like seeds, fertilizer, equipment and services are also struggling. For example, BBG reports that “at Burrus Seed in Arenzville, Illinois, employees spend as much time trying to lift farmers’ spirits as they do selling to them.”

Todd Burrus, owner, said: 

“If we experienced a year like this, I don’t remember it. When the farm economy is tough, it’s going to be tough for all the suppliers.”

Other Illinois seed business owners echo those sentiments. For instance, business owner Kurt Barman said that he’s being inundated with returns:

“All of the seeds are coming back, so that’s lost revenue for us.”

Now, growers don’t know whether to trade up to newer technology to protect crops and business, or use prior versions. Mark Patrick, chief financial officer of agro-chemical giant Syngenta AG said: 

“Couple that with less acres, you’ve got a very acute pressure going on at the moment.”

Those in the fertilizer business have seen urea premiums running at more than double normal levels. The reason for the surge is due to the Mississippi being closed and and the normal flow of crop-nutrient shipments being disrupted.

It’s now being postulated that even the coming $28 billion in tariff aid may not be enough to rescue the Midwest from compounding negative catalysts. 

Agricultural credit conditions have also steadily deteriorated. According to the Kansas City Federal Reserve and a Purdue University/CME Group index, “farmer sentiment has plunged to levels not seen since October 2016, the month before Donald Trump’s election victory.”

Net farm income last year came in at about half of the $123 billion earned in 2013. Curt Hudnutt, head of North American rural banking for Rabobank said: 

“If you want to liken it to the 2008 recession from a housing perspective, it’s similar to that and it’s really vulnerable to any disruptions.’’

Shawn Kelly, mayor of Missouri Valley, Iowa, said: “The weather is casting a shadow over the corn-driven local economy, where average incomes are already well below the national average. Any time you have a big economic impact from agriculture like that where people can’t get their crops in, there’s going to be less money for people to spend.”

Hamburg, Iowa was inundated with flooding from the Missouri river and has had to take on debt to recover and reconnect water and gas supplies to homes. Mayor Cathy Crain said: 

“We used to have a really healthy bottom line. As of two months ago, we have spent it all and are now living on and operating on borrowed dollars.”

There are some limited silver linings: corn futures have rallied about 30% since early May, which means that those who are able to grow will get higher prices. And worries of a poor corn crop have “prompted ethanol plants and animal feeders to bid more aggressively for supplies leftover from last year.”

Philip Luce, a grain merchandising specialist at advisory service White Commercial Corp. in Stuart, Florida said: “In terms of the effect on the old crop, both price and basis, it’s been a godsend. Unfortunately, usually you get these prices when there’s a production problem.’’

Craig Woodley, a pilot who owns Woodley Aerial Spray in Walnut, Illinois, said:

 “It’s a scary picture. There’s definitely going to be a lot of lives affected.”

Recall, about a week ago, we wrote that farmers were expecting a corn crop far worse than USDA estimates. We wrote that farmers believed that already adjusted estimates for June were still going to be too optimistic. Our report checked in with corn farmer James McCune, who, when looking at the size of his diminutive corn crop this year simply said: “Corn’s not supposed to be this tall.” 

In fact, we noted that conditions and morale are so poor in Northwestern Illinois, McCune organized a happy hour for about 125 farmers and others tied to the industry. They called it the “Prevent Plant Part”, a nod in jest to the unplanted acreage this season.

“It’s going to be a train wreck,” McCune said.

Corn farmers face unprecedented headwinds this year, including record rain that has flooded the midwest and stalled corn plantings. This has forced the US Department of Agriculture to cut its harvest estimates in its June report. This is only the fourth time since 2000 that the government has taken such action in the month of June.

McCune says that the USDA’s report won’t even capture how bad this year‘s crop will be. Another farmer, Bryan Snetcher, said even though he was able to get his crop planted, it has been a huge battle.

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The Status Quo Has Changed

Authored by Danielle DiMartino Booth

  • June’s 10-point slide in Consumer Confidence was the largest miss relative to expectations in nine years; the Conference Board warned that continued uncertainty will result in further declines in the Index and in due order, increase consumers’ fear of recession

  • “Jobs hard to get” – rose 4.6 points in June to 16.4, a two-year high; since 1980, every time the increase in “jobs hard to get” exceeded 4 points, the same month’s official unemployment rate rose by approximately 0.4 percentage points

  • Consumer confidence for those under age 35 as well as for those earning under $15,000 have fallen precipitously over the last four months; these workers’ dour outlook is flagging end-of-cycle labor cuts as corporations begin to incorporate persistent weakness in future business

2004’s National Treasure has something for everyone: adventure, action, suspense, mystery, romance and comedy. From the start of the film, Benjamin Gates (Nicolas Cage) gets on the wrong side of his former friend and fellow treasure hunter Ian Howe (Sean Bean) when he refuses to steal the Declaration of Independence. From that point on, the chase is on to save the Declaration from falling into the wrong hands. As twists and turns have it, after catching up to Gates and his crew, Ian and his henchmen obtain it on the streets of Philadelphia. Fast forward to New York’s Trinity Church where Ian forces Ben to team up with him and venture far beneath Wall Street and Broadway only to reach an apparent dead end in the treasure hunt. Ian’s greed and patience almost run out when Ben’s father Patrick Gates (Jon Voight) turns the tables by giving Ian a fake clue. His line, “The status quo has changed, son,” marked the turning point of the movie.

Turning points in business cycles are also triggered when the status quo changes. And, yes, it does have to do with the labor market. First, let’s define the status quo. There’s a constant asymmetry present 24/7/365 in the labor market. At the apex of the cycle, about 96% of the workforce are collecting paychecks and around 4% are unemployed. Even at the worst point of the cycle, about 90% have a job and 10% do not. Because most people in the workforce have a job regardless of where we are in the cycle, bad news about the job market among households travels fast.

So revered is National Treasure in the halls of Quill Intelligence (QI), it was the inspiration for QI’s regular contributor Dr. Benjamin Franklin Gates. In his estimation, there’s a message from the movie in yesterday’s Conference Board Consumer Confidence survey.

Confidence fell nearly 10 points in June. It was the biggest disappointment vis-à-vis consensus expectations in nine years. Both major components – present situation and consumer expectations – registered declines as did a broad-based swath of different demographic categories by age, income bracket or region of the country. Numbers like this should strike us.

But it was the Conference Board’s press release that left the biggest impression:

“The escalation in trade and tariff tensions earlier this month appears to have shaken consumers’ confidence. Although the Index remains at a high level, continued uncertainty could result in further volatility in the Index and, at some point, could even begin to diminish consumers’ confidence in the expansion.”

Didn’t that sound like someone trying to soften the blow? Our less comforting interpretation (in bold): “The escalation in trade and tariff tensions earlier this month has shaken consumers’ confidence. Although the Index remains at a high level, continued uncertainty will result in further declines in the Index and, at some point, will begin to increase consumers’ fear of recession.”

Nowhere was this veiled translation more blatant than in the bad news on current employment conditions, encapsulated in the negative response, “jobs hard to get.” In June, it rose to a two-year high of 16.4% after the May reading, which had been the cycle low at 10.9% before it was revised up to 11.8%. This rendered the February 2019 reading the new cyclical low point.

The bigger news, however, was the 4.6-percentage point vault in “jobs hard to get” in June. In data back to 1980, there are only six other months when this metric rose four points or more. Every time it did, the official unemployment rate rose in the same month to the tune of 0.4 percentage points. We can say with full confidence that an unemployment result like this will not be forecast by the consensus for the next jobs report on July 5.

But one nugget of the narrative did not make sense. So we dug deeper and found that confidence for those under age 35 (illustrated above) as well as for those earning under $15,000 (not illustrated) have fallen out of bed in the last four months. Since the 1980s, the 30-plus-point decline registered between this February and June have only been rivaled in recessions.

Cutting fringe workers. The youngest and least-skilled and lowest-earning workers turning decidedly pessimistic in sync lights a roman candle on unemployment.When it is lit, the flare signals the first phase of end-of-cycle labor cuts. This would only happen if firms foresaw persistent headwinds to top-line revenues, bottom-line earnings, or some combination of both.

To test our thesis, we created an under-35 unemployment rate (also illustrated above). While it bottomed in November 2018, it has yet to have a fire lit under it. Dry wick and all, we don’t think we’ll have to wait long for proof that the status quo has changed.

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Trump’s Tariff Powers Need Limits. Congressional Democrats Just Introduced a Bill To Set Some.

President Donald Trump’s threat to slap tariffs on Mexican imports didn’t become reality, but it might have been enough to spur Congress into reclaiming some authority over trade.

A bill introduced this week by Sens. Tom Carper (D–Del.) and Tim Kaine (D–Va.), and Rep. Stephanie Murphy (D–Fla.) would place new limitations on two laws that currently allow presidents to unilaterally impose tariffs for supposedly “national security” purposes.

The legislation targets Section 232 of the Trade Expansion Act of 1962—which Trump invoked last year to impose tariffs on steel and aluminum imports under thinly justified national security grounds—and to tariffs imposed under the International Emergency Economic Powers Act, which Trump was intending to use against Mexico last month before backing down. Under the bill, presidents would retain the power to impose tariffs for national security reasons, but those tariffs would automatically lift after 120 days unless they receive congressional approval.

Lawmakers backing the bill say the effort is motivated by ongoing evidence that Americans are paying the price for Trump’s tariffs, and by the administration’s unprecedented threat against Mexican trade last month.

“Working families should not have to pay the price for the president’s reckless use of this tariff authority,” Murphy said in a statement. “The time has come for Congress to reclaim its constitutional authority over trade.”

In Florida alone, consumers have paid about $600 million in higher costs due to tariffs, Murphy said, citing data from Tariffs Hurt The Heartland, a national pro-trade group that has been tracking the consequences of Trump’s trade war. Nationally, the group estimates that tariffs have cost American consumers and businesses more than $27 billion.

Business and retail groups have lined up behind the legislation.

“At a time when American businesses and consumers are facing unprecedented tariffs imposed unilaterally, it’s time to reexamine the appropriate balance on trade policy between Congress and the executive branch,” said David French, vice president for government relations at the National Retail Association, in a statement.

The bill could be an important check against the White House’s ongoing threats to hit imported cars and car parts with tariffs. The Commerce Department has provided the president with a framework for using Section 232 tariffs—by stretching the definition of “national security” to ridiculous lengths. Trump has so far declined to take action. Also noteworthy is Trump’s seemingly out-of-nowhere announcement Wednesday that he could consider tariffs against Vietnamese imports.

The bill also provides an interesting political test for congressional Democrats, who have so far been content to criticize Trump’s trade war without taking substantial action to stop it. Democrats on the campaign trail have also stepped up their criticisms of Trump’s trade policies, but a recent survey by The Atlantic found that only one candidate (John Delaney) in the 25-person field favored getting America back into the Trans-Pacific Partnership—a good reminder that the political left remains as skeptical of trade as much of the Trumpian right.

Republicans in Congress have so far avoided a direct showdown with Trump over tariffs, though Sen. Chuck Grassley (R–Iowa) did convince the administration to lift its steel and aluminum tariffs on imported metals from Canada and Mexico. Other Senate Republicans have been sharply critical of Trump’s tariffs, and a small group nearly revolted over last month’s showdown with Mexico, which would have disrupted more than $670 billion in annual cross-border trade between the two nations

The new proposal joins a small pile of other bills making similar promises to rescind presidential tariff authority. Sooner or later, maybe Congress will finally get around to voting on a few of them.

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Trump’s Tariff Powers Need Limits. Congressional Democrats Just Introduced a Bill To Set Some.

President Donald Trump’s threat to slap tariffs on Mexican imports didn’t become reality, but it might have been enough to spur Congress into reclaiming some authority over trade.

A bill introduced this week by Sens. Tom Carper (D–Del.) and Tim Kaine (D–Va.), and Rep. Stephanie Murphy (D–Fla.) would place new limitations on two laws that currently allow presidents to unilaterally impose tariffs for supposedly “national security” purposes.

The legislation targets Section 232 of the Trade Expansion Act of 1962—which Trump invoked last year to impose tariffs on steel and aluminum imports under thinly justified national security grounds—and to tariffs imposed under the International Emergency Economic Powers Act, which Trump was intending to use against Mexico last month before backing down. Under the bill, presidents would retain the power to impose tariffs for national security reasons, but those tariffs would automatically lift after 120 days unless they receive congressional approval.

Lawmakers backing the bill say the effort is motivated by ongoing evidence that Americans are paying the price for Trump’s tariffs, and by the administration’s unprecedented threat against Mexican trade last month.

“Working families should not have to pay the price for the president’s reckless use of this tariff authority,” Murphy said in a statement. “The time has come for Congress to reclaim its constitutional authority over trade.”

In Florida alone, consumers have paid about $600 million in higher costs due to tariffs, Murphy said, citing data from Tariffs Hurt The Heartland, a national pro-trade group that has been tracking the consequences of Trump’s trade war. Nationally, the group estimates that tariffs have cost American consumers and businesses more than $27 billion.

Business and retail groups have lined up behind the legislation.

“At a time when American businesses and consumers are facing unprecedented tariffs imposed unilaterally, it’s time to reexamine the appropriate balance on trade policy between Congress and the executive branch,” said David French, vice president for government relations at the National Retail Association, in a statement.

The bill could be an important check against the White House’s ongoing threats to hit imported cars and car parts with tariffs. The Commerce Department has provided the president with a framework for using Section 232 tariffs—by stretching the definition of “national security” to ridiculous lengths. Trump has so far declined to take action. Also noteworthy is Trump’s seemingly out-of-nowhere announcement Wednesday that he could consider tariffs against Vietnamese imports.

The bill also provides an interesting political test for congressional Democrats, who have so far been content to criticize Trump’s trade war without taking substantial action to stop it. Democrats on the campaign trail have also stepped up their criticisms of Trump’s trade policies, but a recent survey by The Atlantic found that only one candidate (John Delaney) in the 25-person field favored getting America back into the Trans-Pacific Partnership—a good reminder that the political left remains as skeptical of trade as much of the Trumpian right.

Republicans in Congress have so far avoided a direct showdown with Trump over tariffs, though Sen. Chuck Grassley (R–Iowa) did convince the administration to lift its steel and aluminum tariffs on imported metals from Canada and Mexico. Other Senate Republicans have been sharply critical of Trump’s tariffs, and a small group nearly revolted over last month’s showdown with Mexico, which would have disrupted more than $670 billion in annual cross-border trade between the two nations

The new proposal joins a small pile of other bills making similar promises to rescind presidential tariff authority. Sooner or later, maybe Congress will finally get around to voting on a few of them.

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Report Blames “Rotten” Global Drug-Control Regime For Epidemic Of Abuse And Death

The Global Commission on Drug Policy, a group comprising 14 former heads of state from countries including Mexico, Portugal and New Zealand, has issued a blockbuster finding about the global system of illegal drug classification: It should be scrapped entirely and replaced with a new system that’s rooted in science.

According to the report (included in full below), the “deep-lying imbalance” between criminalizing narcotics and permitting their medicinal use had led to “collateral damage” including forcing patients in low- and middle-income countries to undergo surgery without anaesthetic, or even to die in unnecessary pain due to a lack of access to opioids or other pain medications.

Weed

Additionally, the system had bred other social ills, from the spread of infectious diseases, to overcrowding in prisons around the world (with the US being one notable culprit).

In an interview with the Guardian, one former head of the commission described the system of drug scheduling as “rotten to the core.”

“The international system to classify drugs is at the core of the drug control regime – and unfortunately the core is rotten,” said Ruth Dreifuss, former president of Switzerland and chair of the commission. She called for a “critical review” of the classification system, prioritizing the role of the World Health Organization (WHO) and scientific research in setting criteria based on harms and benefits.

The Guardian also noted that the WHO had estimated in 2011 that 83% of the world’s population lived in countries with little or no access to opioids for pain relief. In January, the global health organization also recommended that marijuana be reclassified worldwide to reflect its relatively harmless effects and potential medical uses.

The former prime minister of New Zealand, a member of the commission, told the Guardian that decisions on drug classification should be left to the WHO.

Helen Clark, the former prime minister of New Zealand, said the WHO should make decisions on drug classification based on health and wellbeing. More harmful drugs would require a higher level of intervention, she said.

“The international community should recognise that the system is broken,” said Clark. “They should recognise the inconsistencies and it should trigger a review.”

Restrictions on milder drugs like marijuana should be loosened dramatically to allow for more medicinal uses or traditional/religious uses. And risk thresholds like that used for alcohol should be applied to drugs more generally, instead of the “absolute precautionary principle.”

The Commission also blamed failures of regulation for unleashing the opioid crisis in the US. Notably, the opioid crisis was largely rooted in the common practice of doctors prescribing addictive opioids, then cutting patients off when they got addicted, forcing them to seek out more harmful street drugs like heroin.

Read the full report below:

2019 Report Press Kit ENG by Zerohedge on Scribd

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Mediocre 7Y Auction Stops Though Even As Foreign Demand Slides

After a mediocre 5Y auction and a strong 2Y at the beginning of the week, this week’s sales of coupon paper ended with today’s auction ale of $32 billion in 7Y notes, which priced moments ago at a high yield of 1.889%, the lowest since October 2016, and below the When Issued 1.891%, in what was another mediocre at best auction.

The bid to cover rebounded from May’s 2.298 to 2.440%, which however was below the 6-auction average of 2.49.

Meanwhile, international demand did seem to wane, as Indirects took down only 55.52%, below the 58.25% last month and the lowest since February. This, however was at the expense of Direct demand which more than doubled from a takedown of 11.3% to 24.2% in June. Finally dealers were left holding just 20.25% of the bag, sharply lower from the 30.45% last month, although it was right on top of the 19.51% 6 auction average.

The bottom line: while the auction stopped through, the internals were lacking resulting in what was at best a mediocre auction.

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Supreme Court Allows Warrantless Blood Draws of Unconscious Drivers

The Supreme Court ruled today that exigent circumstances allow police to draw blood from an unconscious driver without his permission and without a warrant if the police suspect that the driver is under the influence of alcohol.

Today’s decision in Mitchell v. Wisconsin comes just three years after the Court ruled that police generally do need to get a warrant to perform blood tests if a driver does not voluntarily consent. And the Court’s judgment actually dodged the major question presented by the case: Whether a state can force a citizen to consent in advance to unwarranted blood tests as a condition of driving.

The ruling centered on a man named Gerald Mitchell, who was arrested on suspicion of drunken driving. Police brought him to a hospital for a blood test, but he was unconscious by the time they arrived and thus could not consent. Wisconsin has an “implied consent” law that authorizes police to draw blood from unconscious drivers if the officers have probable cause to suspect that those drivers are under the influence of drugs or alcohol. Drivers essentially have to consent to this search as a condition of driving legally in the state.

Mitchell challenged the constitutionality of this implied consent. The plurality decision, written by Justice Samuel Alito and joined by Chief Justice John Roberts and Justices Stephen Breyer and Brett Kavanaugh, held that the blood draw is covered by the “exigent circumstances” exception to the Fourth Amendment that allows police to conduct warrantless searches in order to prevent the destruction of evidence. Specifically, the justices determined that the potential dissipation of evidence of alcohol in Mitchell’s bloodstream, along with other public safety needs (such as getting Mitchell to the hospital), took precedence over a warrant application and thus justified the blood draw.

To reach this conclusion, Alito drew heavily from a previous Supreme Court precedent, Schmerber v. California (1966), which established that police could draw blood without a warrant if they would otherwise be forced to wait so long that the evidence might be destroyed by the body’s metabolic processes.

Justice Clarence Thomas concurred in the judgement. He also wrote separately to say that he thought Alito’s ruling set up overly complicated guidelines for what counts as an exigent circumstance. Thomas argued that police should be able to draw blood without warrants in drunken driving cases to preserve the evidence, period.

Writing in dissent, Justice Sonia Sotomayor, joined by Justices Ruth Bader Ginsburg and Elena Kagan, questioned whether the exigent circumstances described by the Court’s judgment actually existed. Wisconsin, in fact, did not make any such argument while defending the blood draw and even conceded that the situation was not so pressing that its officers couldn’t take the time to get a warrant. At the trial court stage, the state even admitted that this was not a case of exigent circumstances. Instead, the state leaned heavily on the “implied consent” demand under Wisconsin law. As Sotomayor pointed out, “Wisconsin has not once, in any of its briefing before this Court or the state courts, argued that exigent circumstances were present here. In fact, in the state proceedings, Wisconsin ‘conceded’ that the exigency exception does not justify the warrantless blood draw in this case.” She also noted that advances in technology and communications have made it relatively easy for judges to give warrants “within 5 to 15 minutes.” She concluded:

Acting entirely on its own freewheeling instincts—with no briefing or decision below on the question—the plurality permits officers to order a blood draw of an unconscious person in all but the rarest cases, even when there is ample time to obtain a warrant. The plurality may believe it is helping to ameliorate the scourge of drunk driving, but what it really does is to strike another needless blow at the protections guaranteed by the Fourth Amendment. With respect, I dissent.

Justice Neil Gorsuch also dissented, writing briefly to say that he thought the case should have been dismissed as improvidently granted because the Court had declined to address the constitutionality of implied consent, which was the whole reason for taking the case up in the first place.

Read the Supreme Court’s decision here. The Reason Foundation (the non-profit that publishes this site) submitted an amicus brief supporting Mitchell and asking the Supreme Court to rule that Wisconsin cannot force drivers to give up their constitutional rights in this manner. Read that brief here.

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Supreme Court Allows Warrantless Blood Draws of Unconscious Drivers

The Supreme Court ruled today that exigent circumstances allow police to draw blood from an unconscious driver without his permission and without a warrant if the police suspect that the driver is under the influence of alcohol.

Today’s decision in Mitchell v. Wisconsin comes just three years after the Court ruled that police generally do need to get a warrant to perform blood tests if a driver does not voluntarily consent. And the Court’s judgment actually dodged the major question presented by the case: Whether a state can force a citizen to consent in advance to unwarranted blood tests as a condition of driving.

The ruling centered on a man named Gerald Mitchell, who was arrested on suspicion of drunken driving. Police brought him to a hospital for a blood test, but he was unconscious by the time they arrived and thus could not consent. Wisconsin has an “implied consent” law that authorizes police to draw blood from unconscious drivers if the officers have probable cause to suspect that those drivers are under the influence of drugs or alcohol. Drivers essentially have to consent to this search as a condition of driving legally in the state.

Mitchell challenged the constitutionality of this implied consent. The plurality decision, written by Justice Samuel Alito and joined by Chief Justice John Roberts and Justices Stephen Breyer and Brett Kavanaugh, held that the blood draw is covered by the “exigent circumstances” exception to the Fourth Amendment that allows police to conduct warrantless searches in order to prevent the destruction of evidence. Specifically, the justices determined that the potential dissipation of evidence of alcohol in Mitchell’s bloodstream, along with other public safety needs (such as getting Mitchell to the hospital), took precedence over a warrant application and thus justified the blood draw.

To reach this conclusion, Alito drew heavily from a previous Supreme Court precedent, Schmerber v. California (1966), which established that police could draw blood without a warrant if they would otherwise be forced to wait so long that the evidence might be destroyed by the body’s metabolic processes.

Justice Clarence Thomas concurred in the judgement. He also wrote separately to say that he thought Alito’s ruling set up overly complicated guidelines for what counts as an exigent circumstance. Thomas argued that police should be able to draw blood without warrants in drunken driving cases to preserve the evidence, period.

Writing in dissent, Justice Sonia Sotomayor, joined by Justices Ruth Bader Ginsburg and Elena Kagan, questioned whether the exigent circumstances described by the Court’s judgment actually existed. Wisconsin, in fact, did not make any such argument while defending the blood draw and even conceded that the situation was not so pressing that its officers couldn’t take the time to get a warrant. At the trial court stage, the state even admitted that this was not a case of exigent circumstances. Instead, the state leaned heavily on the “implied consent” demand under Wisconsin law. As Sotomayor pointed out, “Wisconsin has not once, in any of its briefing before this Court or the state courts, argued that exigent circumstances were present here. In fact, in the state proceedings, Wisconsin ‘conceded’ that the exigency exception does not justify the warrantless blood draw in this case.” She also noted that advances in technology and communications have made it relatively easy for judges to give warrants “within 5 to 15 minutes.” She concluded:

Acting entirely on its own freewheeling instincts—with no briefing or decision below on the question—the plurality permits officers to order a blood draw of an unconscious person in all but the rarest cases, even when there is ample time to obtain a warrant. The plurality may believe it is helping to ameliorate the scourge of drunk driving, but what it really does is to strike another needless blow at the protections guaranteed by the Fourth Amendment. With respect, I dissent.

Justice Neil Gorsuch also dissented, writing briefly to say that he thought the case should have been dismissed as improvidently granted because the Court had declined to address the constitutionality of implied consent, which was the whole reason for taking the case up in the first place.

Read the Supreme Court’s decision here. The Reason Foundation (the non-profit that publishes this site) submitted an amicus brief supporting Mitchell and asking the Supreme Court to rule that Wisconsin cannot force drivers to give up their constitutional rights in this manner. Read that brief here.

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