How The Fed Unleashed A “Schrödinger Equilibrium” Between The Economy And Markets

How The Fed Unleashed A “Schrödinger Equilibrium” Between The Economy And Markets

Tyler Durden

Wed, 05/27/2020 – 15:15

In a fusion of finance (or what’s left of it in a centrally-planned world where asset prices no longer discount the future) and physics, BofA’s Claudio Irigoyen writes that the Schrödinger famous quantum physics experiment resembles the dichotomy that we find today between the state of the economy and some asset prices, in particular US stocks.

In 1935, Austrian physicist Erwin Schrödinger, trying to make the case that some people were misinterpreting quantum theory, designed a hypothetical experiment, famously known as the Schrödinger’s cat experiment. In a nutshell, the experiment goes, if you place a cat and something that could kill the cat (a radioactive atom) in a box and sealed it, you would not know if the cat was dead or alive until you open the box, so until then, the cat was in a sense both dead and alive.

The Schrödinger experiment, BofA argues, “resembles the dichotomy that we find today between the state of the economy and some asset prices, in particular US stocks” where market sentiment remains especially bearish. According to BofA’s most recent Global Fund Manager Survey (discussed here), only 10% of the respondents expect a V-shaped recovery and 75% think the recovery is likely to be either U or W-shaped. Positioning indicators also indicate maximum bearishness. Cash levels are at a record high. In line with that view, we downgraded again our global growth forecast. Now we expect a global contraction of 4.2% in 2020, down from 2.7% just six weeks ago. However, since March 23, US stocks (as measured by the S&P index) recovered 60% of the selloff that started in mid-February and are now trading just 12% below the peak before the crisis.

A natural question is then: how can we reconcile this decoupling between asset prices and expectations? Can the cat be dead and alive at the same time? Abusing the analogy, is this rebound a dead Schrodinger cat bounce? Or is there somebody making the dead cat look like it’s alive and kicking?

A natural question to ask, according to Irigoyen then, is: how can we reconcile this decoupling between asset prices and expectations? The answer, according to the BofA strategist is that “the most powerful element to explain the decoupling is the reaction function of the Fed (and admittedly of many other major central banks, including to some extent the ECB) and the expectation that this reaction function will remain unaltered in the future.” So should we just call it a Schrodinger Cat bounce then?

It’s the Fed, stupid

In order to make sense of this decoupling between expectations and asset prices, BofA notes that there is more than one element to consider.

  • In the first place, positioning helps. As liquidity gradually recovered and with sentiment so bearish, people already adjusted their portfolios to the new steady state and are holding the risk they want to hold, so there are no marginal sellers. The pain trade is up, not down. But this can help explain why the market stopped falling, not so much why it rallied so violently. Indeed, extreme bearish positioning explains the recent stabilization in EM. However, the recovery in EM has been much more muted than in the US, so we cannot talk about a decoupling between sentiment and asset prices in EM.
  • Another argument that could explain the decoupling is the relative composition of the S&P index, which is likely overrepresented by the relative beneficiaries of the COVID-19 shock, such as tech companies, the most overweight sector in the index. On the other hand, the SMEs, which are impacted the most by the recession, are not listed in the exchanges. Again, this argument can have some validity but is not necessarily verified in other countries also hit by the outbreak.
  • A third argument has to do with investors’ expectations. If investors are too optimistic about the shape of the recovery, more inclined towards a V-shaped recovery, we could have a decoupling between the state of the economy and the stock market which is by its own nature forward-looking. Again, we have seen that this argument is prima facie inconsistent with what the GFMS revealed to us this week. In order to rescue the argument, we need to assume some sort of self-selection, in which the most bullish investors are more active than the bearish ones. “Possible, but stretched”, according to Irigoyen .

The analysis above leaves BofA with what the bank thinks is the most powerful element to explain the decoupling: the reaction function of the Fed (and admittedly of many other major central banks, including to some extent the ECB) and the expectation that this reaction function will remain unaltered in the future.

On top of the fiscal programs implemented by the governments of the main economies, central banks around the world have been flooding financial systems with liquidity. The goal has been to reestablish as quickly as possible both market and funding liquidity, with a particular focus on helping SMEs to finance working capital to avoid disruptive bankruptcies. In the case of the Fed, liquidity programs were complemented with credit programs. As part of the several funding and credit facilities implemented, the programs include buying not only Treasuries but also MBS, Commercial Papers and Corporate Debt and Corporate Bond ETFs. Not surprisingly, BofA thinks that “buying risky assets has been key to prop up asset prices and the stock market.

In a nutshell, what all this means for asset prices is that the Fed put was increased to a record size and the market expectation is that if the economy falls even further, the Fed will step up buying more risky assets and even potentially buying equities, although the bar is very high for that to happen. The Fed is effectively intervening in the market for risky assets in a sort of “whatever it takes” type of reaction function which was strong enough to coordinate towards a stable equilibrium.

Here BofA takes a detour to clarify that “in theory”, the Fed buying program “should not affect the fair value of asset prices, which are the risk-adjusted discounted present value of cash flows, therefore independent of “supply and demand”. Since the Fed is not removing risk from the economy by buying risky assets, but just transferring the risk to taxpayers, in an economy with no market segmentation, people properly discount higher taxes to cover potential Fed losses and therefore the Fed reshuffling does not affect asset prices in equilibrium. However, if markets are segmented, as they are in reality, Modigliani-Miller doesn’t work, even if Ricardian equivalence holds. With sufficient segmentation, the effect on asset prices can be significant.

Even though the fall in interest rates naturally helps stock prices, being an endogenous reaction to a negative shock, it cannot have a first-order effect. The main channel through which the Fed affects asset prices is the risk premium channel. By effectively acting as lender and buyer of last resort, the Fed affects the risk premium and coordinates expectations towards the “good equilibrium”, avoiding endogenous runs against risky assets and setting a floor on the market, the so called Fed put.

* * *

This brings us to the next question: as part of its new “helicopter money mandate” is the Fed also doing fiscal policy?

According to BofA, the program implemented by the Fed, loosely named QE, is in fact way more than QE. Strict Quantitative Easing refers to the policy of creating reserves in order to purchase short-term government bonds. Not even buying long term government bonds represents QE, as this can be thought of the combination of QE and a swap of short-term for long-term government bonds, also known as Operation Twist. At the zero lower bound for short-term interest rates, buying long term government bonds and Operation Twist are equivalent and it can be argued that if those operations belong to the sphere of debt management (issuing short term bonds to rescue long term bonds), they should be conducted by the Treasury rather than the central bank.

If not even buying long term government bonds represents QE, much less in the case of buying risky assets. When the Fed buys risky assets, which can be called targeted purchases, it is not doing monetary policy but credit policy. It is a form of direct lending and it can be argued also that the Fed, by redistributing risks, is actually doing fiscal policy or at the very least monetizing the fiscal deficit, as the Fed could buy short term government debt that the Treasury could issue to fund targeted credit programs.

Even though the difference is subtle, it is in the realm of Congress to implement such policies rather than the Fed. Pushing the Fed to implement them and indirectly picking winners and losers can increase the implementation risks and undermine the perceived independence of the central bank, in addition to the obvious moral hazard implications, which can arguably be considered second-order given the nature and magnitude of the crisis.

This brings us to the conclusion: what are the unexpected consequences of positive surprises

According to Irigoyen, and tying the analysis back to an economy – which like Schrodinger’s cat is both alive and dead – “if the stock market is being supported by the reaction function, current and expected, of the Fed, it means that the shadow level at which the stock market would be trading absent the Fed’s support would be much lower.” That raises an interesting question: how much can the stock market rally if in the coming weeks, as lockdown policies are being relaxed, economic activity surprises positively relative to already very depressed expectations?

The answer is that certainly much less than proportionally, as the positive surprises on the one hand should lift the shadow fair value for the stock market, but on the other hand reduce the market value of the Fed put (as it would be less in the money). It could even happen in extreme that the stock market remains unaltered, only the factors explaining the observed level change. Needless to say that the short term reaction will likely be consistent with a mild rally, “but a rally that would leave the market even more vulnerable than it is now”, or as another BofA strategist, Benjamin Bowler put it, the higher stocks rise, the more fragile the market becomes.

On the contrary, if economic activity surprises to the downside, it would put significant pressure on the Fed to validate the put, which, given the arguments outlined above, might not necessarily be followed by a strong reaction, leaving the market wondering if the size of the Fed put has a limit.

Based on all of the above, BofA concludes that “the risk-reward of being long US stocks does not appear as particularly attractive.”

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

Bill Ackman Dumps Berkshire, Blackstone As Pershing Returns 21% YTD

Bill Ackman Dumps Berkshire, Blackstone As Pershing Returns 21% YTD

Tyler Durden

Wed, 05/27/2020 – 14:56

It looks like hell isn’t coming after all.

Just over two months after billionaire investor Bill Ackman scared CNBC’s viewers with his prediction that “hell is coming” and “America will end as we know it” unless America is shut down for 30 days – while at the same time admitting he was buying stocks hand over fist – Ackman’s “investing strategy” appears to be bearing fruit. According to Reuters, Pershing Square is up between 21% and 27% this year. On the fund’s call this morning, Ackman disclosed that his fund had exited Berkshire Hathaway (Ackman and Buffett sycophant Whitney Tilson must feel quite conflicted about this) and the position in Blackstone he had put on just months prior. Ackman also said that he exited Park Hotels & Resorts. 

As discussed previously, Ackman’s returns for the year were boosted along by a short credit hedge that Ackman, in all fairness, disclosed he was putting on well before the market reacted to the pandemic. The hedge paid off 100x, netting the firm about $2.6 billion for the fund. 

Ackman also said he added Lowe’s about 6 weeks ago and got the “bargain” of a lifetime, and said that he added Starbucks in the $60/share region.

Ackman had said earlier this month that tech companies could become even more dominant as a result of the pandemic:

“The impact of the crisis on companies like Amazon is actually a little bit of short-term negative because they’re spending a lot of money managing through this, but it’s long-term hugely beneficial to the company.”

Recall that it has barely been 2 months since Bill Ackman took to CNBC’s airwaves to proclaim that “hell is coming”, he a few days before the unofficial bottom for the Dow at 18,213 when Powell announced unlimited QE and expanded into buying corporate bonds, helping rebound the Dow above 20,000, where it has been since.  Three days later the hedge fund manager admitted  he went “all in” long on the market. 

via ZeroHedge News https://ift.tt/2XxT3tO Tyler Durden

Canadian Judge Rules Against Huawei CFO, Clearing Way For Extradition

Canadian Judge Rules Against Huawei CFO, Clearing Way For Extradition

Tyler Durden

Wed, 05/27/2020 – 14:46

Wednesday has been a wild day for US-China relations.

It has been a few months since we’ve checked in with Huawei CFO Meng Wanzhou, who has spent the last 16 months free on bail in Vancouver while the Canadian legal system has processed her case, as it moves to determine whether it will grant the US DoJ’s request to extradite Wanzhou in accordance with the US-Canada mutual-extradition agreement.

On Wednesday, with tensions between the US and China flaring and Huawei back in the headlines, a Canadian judge has ruled that the allegations brought against Meng by the DoJ would constitute crimes in Canada. That hurdle was a critical legal threshold: If the judge had ruled otherwise, Meng likely would have been freed, and extradition would likely be off the table.

Just minutes after the decision, Beijing – via the Global Times – has already responded.

Meng was arrested when she landed in Vancouver on Dec. 1, 2018, while President Trump was sitting down to dinner with President Xi in Buenos Aires during a notable episode that re-started trade talks between the world’s two largest economies. Shortly afterward, Trump suggested that she could become a political bargaining chip in the trade talks.

Of course, that was long before the coronavirus. We suspect that whatever happens now, if Meng lands in the US, prosecutors probably won’t be very amenable to a generous deal.

via ZeroHedge News https://ift.tt/2B0Akzo Tyler Durden

Xi Takes Up Trump’s Challenge

Xi Takes Up Trump’s Challenge

Tyler Durden

Wed, 05/27/2020 – 14:35

Authored by Patrick Buchanan via Buchanan.org,

Is the U.S. up for a second Cold War — this time with China?

What makes the question newly relevant is that Xi Jinping’s China suddenly appears eager for a showdown with the United States for long-term supremacy in the Asia-Pacific and the world.

With the U.S. consumed by the coronavirus pandemic that has killed 100,000 Americans and crashed our economy to depths not seen since the Great Depression, China’s dictator seems to be making his move.

At the Communist Party conclave this May, China announced that it was seizing control of Hong Kong’s security. From now on, subversion, sedition, secession and foreign meddling within the city will be crushed.

Whatever sanctions the U.S. and its allies impose, there will be no free and independent Hong Kong.

“For an Ascendant China, Reining in Hong Kong Is Just the Start,” is the headline over The New York Times story on China’s new assertiveness.

“China’s move to strip away another layer of Hong Kong’s autonomy was not a rash impulse. It was a deliberate act, months in the making,” writes reporter Steven Lee Myers. “It took into account the risks of international umbrage and reached the reasonable assumption that there would not be a significant geopolitical price to pay. …

“With the world distracted by the pandemic’s devastating toll, China has taken a series of aggressive steps in recent weeks to flex its economic, diplomatic and military muscle across the region.

“China’s Coast Guard rammed and sank a fishing boat in disputed waters off Vietnam, and its ships swarmed an offshore oil rig operated by Malaysia. Beijing denounced the second inauguration of Taiwan’s President Tsai Ing-wen, and pointedly dropped the word peaceful from its annual call for unification with the island democracy.

“Chinese troops squared off again last week with India’s along their contentious border in the Himalayas.”

To warnings that China is risking Cold War II, Beijing seems to be responding: If a Cold War with the United States is the price of securing our strategic interests and position in Asia and the world, bring it on.

Beijing has put the ball in America’s court. What do we do now?

Consider the list of nations with which China has territorial quarrels that have lately produced military clashes.

Beijing claims Indian lands China has occupied since their 1962 war.

China claims virtually all the islets and reefs in the South China Sea and now uses naval vessels to deal with the rival claimants of Vietnam, Malaysia, Indonesia and the Philippines.

Beijing asserts that Taiwan and all of its offshore islands in the East China Sea belong to China. While the Senkaku Islands have long been controlled by Japan, China claims these islands as well.

As for protests of the suppression of Tibetans and incarceration in concentration camps of Muslim Uighurs and Kazakhs, Beijing brushes them off.

Should the U.S. seek sanctions on China if it crushes the resistance in Hong Kong, how many U.S. allies would support those sanctions, when, for Australia, South Korea, Japan and Taiwan, China, not America, is their largest market and trading partner?

How did we allow ourselves to get into this position where a lately backward China is suddenly a greater rival for global hegemony than was the Soviet Union of Josef Stalin and Nikita Khrushchev?

Said Secretary of State Mike Pompeo ruefully this month:

“China’s been ruled by a brutal, authoritarian regime, a communist regime since 1949. For several decades, we thought the regime would become more like us through trade, scientific exchanges, diplomatic outreach … (but) that didn’t happen.

“We greatly underestimated the degree to which Beijing is ideologically and politically hostile to free nations. The whole world is waking up to that fact.”

Yet, the rising totalitarian power of China, even with its imperial ambitions undisguised, does not threaten the vital interests of the United States.

So, again, the question: If China is prepared for a Cold War II with the United States to establish its predominance, what are we prepared to do should China absorb Hong Kong and convert it into a second Shanghai?

What are we prepared to do if China puts new pressure on Taiwan and seizes offshore islands in the East China Sea, as she did in the South China Sea? Sanctions against Vladimir Putin’s Russia to compel it to return Crimea and vacate eastern Ukraine have conspicuously failed.

Are we prepared to fight for any of the islands, none of which we claim and many of which we agree ultimately belong to Beijing?

The Chinese have stolen our intellectual property, coerced technology transfers from our businesses and sent spies posing as students into our universities to thieve our secrets.

Meanwhile, we allowed ourselves to become dependent on China for medicines and drugs vital to the health and the survival of millions of Americans.

Who did this to us? We did it to ourselves.

via ZeroHedge News https://ift.tt/3c8adn1 Tyler Durden

Fed’s Beige Book Is Blue With Alarm At Economic Devastation Across The US

Fed’s Beige Book Is Blue With Alarm At Economic Devastation Across The US

Tyler Durden

Wed, 05/27/2020 – 14:34

While one didn’t need the Fed’s Beige Book to know that the US economy is currently in a horrific state as a result of the coronavirus lockdowns, the just published summary of anecdotes from across various Fed regions confirmed the obvious.

After years of “modest” and “moderate” growth across the US, in the latest Fed Beige Book released this afternoon, the assessment of the economy downgraded sharply with the Fed reporting that “economic activity declined in all Districts – falling sharply in most – reflecting disruptions associated with the COVID-19 pandemic.” with the hardest-hit industries—because of social distancing measures and mandated closures— were retail, travel, and hospitality.

The report which had a May 2018 cutoff date, found that:

  • Consumer spending fell further as mandated closures of retail establishments remained largely in place during most of the survey period. Declines were especially severe in the leisure and hospitality sector, with very little activity at travel and tourism businesses.
  • Auto sales were substantially lower than a year ago, although several Districts noted recent improvement.
  • A majority of Districts reported sharp drops in manufacturing activity, and production was notably weak in auto, aerospace, and energy-related plants.
  • Residential home sales plunged due in part to fewer new listings and to restrictions on home showings in many areas.
  • Construction activity also fell as new projects failed to materialize in many Districts. Commercial real estate contacts mentioned that a large number of retail tenants had deferred or missed rent payments.
  • Bankers reported strong demand for PPP loans.
  • Agricultural conditions worsened, with several Districts reporting reduced production capacity at meat-processing plants due to closures and social distancing measures.
  • Energy activity plummeted as firms announced oil well closures, which led to historically low levels of active drilling rigs.
  • A contact in the Pacific Northwest also warned of reduced local government revenue collection and its implication for potential cuts in fiscal spending and public services. In the entertainment sector, demand for broadcasting and voice-over services increased.

And although many contacts expressed hope that overall activity would pick-up as businesses reopened, the outlook remained highly uncertain and most contacts were pessimistic about the potential pace of recovery.

With nearly 40 million unemployed, the Beige Book also noted that “employment continued to decrease in all Districts, including steep losses in most Districts, as social distancing and business closures affected employment at many firms. Securing PPP loans helped many businesses to limit or avoid layoffs, although employment continued to fall sharply in retail and in leisure and hospitality sectors.”

  • Contacts cited challenges in bringing employees back to work, including workers’ health concerns, limited access to childcare, and generous unemployment insurance benefits.
  • Overall wage pressures were mixed as some firms cut wages while others  implemented temporary wage increases for essential staff or to compete with unemployment insurance.
  • Most Districts noted wage increases in high-demand and essential sectors, while wages were flat or declining in other sectors.
  • A payment processing firm reported that job applications for current openings soared, though many candidates did not have the stated requirements.

While there was no outright deflation, the report cited pricing pressures which “were steady to down modestly on balance.”

  • Weak demand weighed on selling prices, with some contacts noting discounting for apparel, hotel rooms, and airfare.
  • Several Districts also reported low commodity prices, including oil, steel, and several agricultural commodities.
  • Supply chain disruptions and strong demand led to higher prices for some grocery items including meat and fresh fruit.
  • One District reported that firms faced additional costs related to safety protocols and social distancing compliance, while another District noted that the costs of personal protective equipment had risen due to strong demand.

Firms also reported finding ways to cope with the challenges brought on by COVID-19, with new business strategies or new sales people in some cases. All contacts who were eligible for the Payroll Protection Program received funding, which they regarded as vital support; businesses were also lining up other credit lines and resources in the face of uncertainty. The majority of contacts reported no major structural or compensation changes within their organizations due to COVID-19. Overall, there was some hope with contacts expressing optimism, “excited” (as one put it) to facilitate hiring during the upcoming recovery.

Amusingly, the biggest bogeyman of the Beige Book for much of 2019 – tariffs – was gone and forgotten, without a single mention of the term in the entire report for the second month in a row. That however, was been replaced by mentions of “coronavirus” and/or “Covid” which however saw a notable decline from 87 instance in April to just 52 instances in May when the terms made their first ever appearance. Finally, slowness prevailed, literally, with no less than 44 mentions of the “slow” in the Beige Book.

via ZeroHedge News https://ift.tt/2ZK632e Tyler Durden

Edward Snowden, the Surveillance State, and the ‘Dark Mirror’ Still Watching Us All

In 2013, Barton Gellman of The Washington Post started publishing stories about what he called the “surveillance-industrial state” based on documents given to him by former National Security Agency (NSA) contractor Edward Snowden. Along with work done by filmmaker Laura Poitras and journalist Glenn Greenwald, Gellman’s exposés laid bare an extensive and previously unacknowledged network by which the federal government systematically and illegally spied on American citizens and routinely circumvented checks on its power.

Gellman has just published Dark Mirror: Edward Snowden and the American Surveillance State, which tells the story of his interactions with the whistleblower, bureaucrats, politicians, and the media as he helped reveal one of the biggest secrets in U.S. history. Nick Gillespie spoke with him about his new book and earlier, Pulitzer Prize-winning work that revealed how Donald Rumsfeld, Dick Cheney, and others in the Bush administration exceeded constitutional limits in the name of prosecuting the war on terror.

They also discuss national surveillance in light of the two major-party presidential candidates, Donald Trump and Joe Biden. Former heads of intelligence services are “much less sanguine about the government accumulating this enormous machinery of surveillance” with Trump in the White House because they openly acknowledge “it is subject to horrific potential abuse,” says Gellman. At the same time, he stresses that Biden, who served in the Senate for decades and eight years as vice president under President Barack Obama, “has not been an apostle of transparency in the national security world. He was a strong backer of the prosecution of whistleblowers and leakers in the Obama administration and there were more prosecutions with charges of espionage against people who talked to journalists during the Obama administration than in all previous administrations combined, which had a chilling effect on national security reporting.”

from Latest – Reason.com https://ift.tt/2Mh8WzP
via IFTTT

Edward Snowden, the Surveillance State, and the ‘Dark Mirror’ Still Watching Us All

In 2013, Barton Gellman of The Washington Post started publishing stories about what he called the “surveillance-industrial state” based on documents given to him by former National Security Agency (NSA) contractor Edward Snowden. Along with work done by filmmaker Laura Poitras and journalist Glenn Greenwald, Gellman’s exposés laid bare an extensive and previously unacknowledged network by which the federal government systematically and illegally spied on American citizens and routinely circumvented checks on its power.

Gellman has just published Dark Mirror: Edward Snowden and the American Surveillance State, which tells the story of his interactions with the whistleblower, bureaucrats, politicians, and the media as he helped reveal one of the biggest secrets in U.S. history. Nick Gillespie spoke with him about his new book and earlier, Pulitzer Prize-winning work that revealed how Donald Rumsfeld, Dick Cheney, and others in the Bush administration exceeded constitutional limits in the name of prosecuting the war on terror.

They also discuss national surveillance in light of the two major-party presidential candidates, Donald Trump and Joe Biden. Former heads of intelligence services are “much less sanguine about the government accumulating this enormous machinery of surveillance” with Trump in the White House because they openly acknowledge “it is subject to horrific potential abuse,” says Gellman. At the same time, he stresses that Biden, who served in the Senate for decades and eight years as vice president under President Barack Obama, “has not been an apostle of transparency in the national security world. He was a strong backer of the prosecution of whistleblowers and leakers in the Obama administration and there were more prosecutions with charges of espionage against people who talked to journalists during the Obama administration than in all previous administrations combined, which had a chilling effect on national security reporting.”

from Latest – Reason.com https://ift.tt/2Mh8WzP
via IFTTT

Do Pandemic-Inspired Bans on Religious Services Violate the First Amendment? Circuit Courts Are Split.

Are COVID-19 lockdowns that prohibit church services like Oregon’s ban on peyote—a neutral, generally applicable law that incidentally impedes religious freedom? Or are they more like the ban on animal sacrifice that Hialeah, Florida, imposed in 1987, which not-so-incidentally prohibited a Santeria ritual?

Those questions are at the heart of constitutional challenges to pandemic-inspired restrictions on religious services. Different federal appeals courts have answered them differently, creating a circuit split that reveals both encouraging alertness and alarming indifference to what seem like clear violations of the religious freedom protected by the First Amendment.

In the 1990 case Employment Division v. Smith, the Supreme Court upheld Oregon’s denial of unemployment benefits for two members of the Native American Church who had been fired from their jobs as drug rehabilitation counselors because they violated state law by participating in a peyote ceremony. The Court ruled that the First Amendment does not relieve Americans of the duty to obey a “neutral, generally applicable law” that prohibits religiously motivated conduct.

Three years later, by contrast, the Court overturned a local ban on animal sacrifice in Church of Lukumi Babalu v. City of Hialeah. Although the ban was framed as a general response to animal cruelty, its timing (in response to the opening of a new Santeria church) and the exceptions it included (e.g., for ritual slaughter of animals to be consumed as food) made it clear that the city was targeting a specific religious practice. The Court held that a law interfering with religious freedom can be neutral and generally applicable on its face but discriminatory in practice, making it subject to “strict scrutiny.” That test, which is very hard to satisfy, requires that a challenged policy be narrowly tailored to achieve a “compelling government interest” that cannot be achieved through less restrictive means.

In the context of COVID-19 control measures that restrict religious activities, the lesson from these two precedents seems clear. When those restrictions apply equally to conduct, whether secular or religious, that might promote virus transmission, they pass muster under Smith. But when a state or local government imposes special restrictions on religious activities that don’t apply to secular activities involving similar risks, they are presumptively unconstitutional under Lukumi. If, for example, a state allows businesses to continue operating or reopen subject to social distancing and other precautions, a church that is prepared to follow the same rules should be treated the same way.

Applying that analysis in an early decision involving religious freedom during the COVID-19 pandemic, a federal judge in Kentucky last month concluded that Louisville Mayor Greg Fischer’s unilateral ban on drive-in Easter services was “stunning” and “‘beyond all reason,’ unconstitutional.” U.S. District Judge Justin Walker noted that the city had not imposed general restrictions on cars in parking lots and was allowing drive-through transactions at restaurants and liquor stores. “If beer is ‘essential,'” Walker suggested, “so is Easter.”

In California, by contrast, the U.S. Court of Appeals for the 9th Circuit was unimpressed by the constitutional arguments against Gov. Gavin Newsom’s reopening plan, which provoked massive pushback from congregations across the state by arbitrarily discriminating against religious groups. Newsom has since modified that plan, although the churches that challenged it still object to some of the remaining restrictions.

“Where state action does not ‘infringe upon or restrict practices because of their religious motivation’ and does not ‘in a selective manner impose burdens only on conduct motivated by religious belief,’ it does not violate the First Amendment,” two members of a three-judge 9th Circuit panel declared last week. “We’re dealing here with a highly contagious and often fatal disease for which there presently is no known cure. In the words of Justice Robert Jackson, if a ‘[c]ourt does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.'”

Both the majority’s description of COVID-19 and its invocation of Jackson’s comment were telling. A disease that kills 0.4 percent of people who suffer from it (according to a recent “best estimate” by the U.S. Centers for Disease Control and Prevention) can hardly be described as “often fatal.” And the Jackson quote comes from his dissent in Terminiello v. Chicago, a 1949 case in which he defended restrictions on speech that is apt to make people angry.

In Terminiello, the Supreme Court overturned the disorderly conduct conviction of a suspended Catholic priest who gave an inflammatory speech castigating Jews, Franklin and Eleanor Roosevelt, and communists. Writing for the majority, Justice William O. Douglas concluded that Chicago’s ordinance criminalizing disorderly conduct, which according to the trial court covered speech that “stirs the public to anger, invites dispute, brings about a condition or unrest, or creates a disturbance,” was inconsistent with the First Amendment. “The vitality of civil and political institutions in our society depends on free discussion,” Douglas noted. “A function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”

That is the position to which Jackson objected in his dissent. “The local court that tried Terminiello was not indulging in theory,” he wrote. “It was dealing with a riot and with a speech that provoked a hostile mob and incited a friendly one, and threatened violence between the two.” When Jackson warned that the Bill of Rights, if defended too zealously, could become “a suicide pact,” he was defending the proposition that the anger aroused by speech can justify prohibiting or punishing it. That argument was based on the constitutionally dubious “fighting words” doctrine, which the Supreme Court endorsed in 1942 but subsequently narrowed so much that its viability as a defense for speech restrictions is highly uncertain.

When judges invoke Jackson’s “suicide pact” dissent, it is a clear signal that they have no intention of taking a constitutional claim seriously. True to that pattern, the 9th Circuit disposed of the challenge to Newsom’s policy in a couple of pages.

That decision inspired an 18-page dissent by Judge Daniel Collins. While California’s “highly reticulated patchwork of designated activities and accompanying guidelines may make sense from a public health standpoint,” he wrote, “there is no denying that this amalgam of rules is the very antithesis of a ‘generally applicable’ prohibition. The State is continually making judgments, at the margins, to decide what additional activities its residents may and may not engage in, and thus far, ‘religious services’ have not made the cut. I am at a loss to understand how the State’s current maze of regulations can be deemed ‘generally applicable.'”

Collins noted that “warehousing and manufacturing facilities are categorically permitted to open, so long as they follow specified guidelines.” By contrast, “in-person ‘religious services’—merely because they are ‘religious services’—are categorically not permitted to take place even if they follow the same guidelines. This is, by definition, not a generally applicable regulation of underlying physical conduct.”

In a May 16 decision rejecting a motion for an injunction pending appeal, a unanimous 7th Circuit panel made even shorter work of a challenge to a ban on religious services in Illinois. “The Executive Order does not discriminate against religious activities, nor does it show hostility toward religion,” the 7th Circuit said. “It appears instead to impose neutral and generally applicable rules….The Executive Order’s temporary numerical restrictions on public gatherings apply not only to worship services but also to the most comparable types of secular gatherings, such as concerts, lectures, theatrical performances, or choir practices, in which groups of people gather together for extended periods, especially where speech and singing feature prominently and raise risks of transmitting the COVID-19 virus. Worship services do not seem comparable to secular activities permitted under the Executive Order, such as shopping, in which people do not congregate or remain for extended periods.”

Two other appeals courts were more receptive to claims that banning church services violates the First Amendment.

On May 9, a unanimous 6th Circuit panel granted an injunction pending appeal to Maryville Baptist Church, which had challenged Kentucky Gov. Andrew Beshear’s lockdown orders. “The Governor’s restriction on in-person worship services likely ‘prohibits the free exercise’ of ‘religion’ in violation of the First and Fourteenth Amendments,” the 6th Circuit concluded, saying the “four pages of exceptions” to Beshear’s orders, allowing some group activities but not others, “remove them from the safe harbor for generally applicable laws” like the Oregon drug ban upheld in Smith.

“The Church and its congregants just want to be treated equally,” the appeals court observed. “They don’t seek to insulate themselves from the Commonwealth’s general public health guidelines. They simply wish to incorporate them into their worship services. They are willing to practice social distancing. They are willing to follow any hygiene requirements. They do not ask to share a chalice. The Governor has offered no good reason for refusing to trust the congregants who promise to use care in worship in just the same way it trusts accountants, lawyers, and laundromat workers to do the same.”

Last week a unanimous 5th Circuit panel temporarily enjoined a ban on church services in Holly Springs, Mississippi, sending the case back to the district court for further consideration of “a shifting regulatory regime.” The court said the injunction was based on assurances from the First Pentecostal Church of Holly Springs that “it will ‘satisf[y] the requirements entitling similarly situated businesses and operations to reopen.'”

In a concurring opinion, Judge Don Willett noted that the church “was burned to the ground earlier this week” and that the arsonists left a spray-painted message: “Bet you Stay home Now YOU HYPOKRITS.” Rather than expressing outrage at that development, Willett said, the city made the “shameful” argument that the church’s destruction rendered its motion moot. He added that a policy “singling out houses of
worship—and only houses of worship, it seems—cannot possibly be squared
with the First Amendment.”

On Sunday, when it asked Supreme Court Justice Elena Kagan for an emergency injunction against California’s restrictions, the South Bay United Pentecostal Church argued that the circuit split makes it likely that at least four justices would favor hearing the case. “According to the Fifth and Sixth Circuits, the violation of Plaintiffs’ rights is ‘indisputably clear,'” the church said, “while according to the Seventh and Ninth Circuits, no such violation occurred whatsoever.”

from Latest – Reason.com https://ift.tt/2M25RDh
via IFTTT

The Moral Case for Testing Coronavirus Vaccines through “Challenge Trials” on Paid Healthy Volunteers

By now almost everyone recognizes how vital it is to develop an effective coronavirus vaccine as quickly as possible. A vaccine would save many thousands of lives that are otherwise likely to be lost to the virus. In addition, developing a vaccine may well be the only way to overcome the worldwide economic crisis caused by the disease. Even if lockdown orders are lifted, many people will still be unwilling or unable to return to anything like “business as usual” for so long as the coronavirus remains a threat.

The costs here are not just narrowly “economic.” They also involve such things as foregone medical treatment leading to increased death from non-covid causes, growing hunger and poverty (especially in developing nations, and a reduction in childhood vaccinations that could imperil millions around the world. Anything that can make a vaccine available even a month or two earlier than would otherwise be the case could save a great many lives and avert much suffering.

But, in order to swiftly develop a vaccine, it may well be necessary to resort to “challenge trials”: deliberately infecting healthy volunteer test subjects with the virus in order to then determine whether candidate vaccines work on them. My George Mason University colleague, economist Alex Tabarrok explains the reasons why here:

What if we develop a vaccine for COVID-19 but can’t find enough patients to run a randomized clinical trial? It sounds absurd, but this problem has happened in the past. Ebola was identified in 1976, and candidate vaccines were proven safe and effective in mice and primates in 2004 and 2005, respectively. But no human vaccine was produced because it was extremely difficult, bordering on impossible, to trial an Ebola vaccine. The problem? Ebola is so deadly that people take precautionary measures long before a vaccine can be tested…

Vaccines are intended to prevent disease in healthy people, so they’re tested for efficacy in healthy populations. But to test a vaccine, you need a population of still-healthy people who might get sick…

When a COVID-19 vaccine is available, it will be necessary to find a large population of people who are still at high risk of contracting COVID-19. This may be difficult. In developing countries, which may not be able to contain the virus, herd immunity may have developed. In richer countries, social distancing, testing and other measures may have made the probability of infection relatively low….

Even health care workers, however, have a low enough infection rate that you either need many months to determine if there is a significant effect, or you need large populations….

There is a second, related problem. Historically, most vaccine candidates fail. Thus, in a year or two, we want many vaccine candidates, not just one. But even if we are fortunate and have, say, seven vaccine candidates available, it probably won’t be possible to run efficacy trials on all seven candidates….

The efficacy-trial bottleneck motivates the use of challenge trials. In a challenge trial, healthy individuals are split into two groups, one half vaccinated, the other not, and then both groups are infected or “challenged” with the virus. No waiting for natural infections here…

The virtue of a challenge trial is that the results would be available very quickly, within a few weeks, and using only a small population. If the vaccine is 50 percent effective, for example, then we would need around 100 volunteers or perhaps even fewer depending on how many people exposed to the virus in laboratory conditions contract the disease.

As Alex points out, these problems may foil early production and deployment of one of a promising vaccine candidate currently under development by scientists at Oxford University.  Challenge trials can fix this issue.

In this Washington Post article, philosophers Richard Yetter Chappell and Peter Singer make a strong utilitarian consequentialist case for challenge trials: the risk to the volunteers is greatly outweighed by the enormous benefits to others. There aren’t many issues where Tabarrok—a libertarian—agrees with Singer (who is far more left-wing)!

Chappell and Singer are right in so far as  they go. Any plausible cost-benefit analysis comes out the same way. But non-utilitarians might still have reservations, such as fears that paying volunteers to participate in challenge trials might lead to exploitation of the poor, “commodification” of the body, or the use of test subjects who are ignorant of the risks.

The challenge trial debate, gives me a strong sense of deja vu. For many years, I and others have argued that the government should legalize the sale of organs, so that thousands of lives can be saved—and much other suffering prevented—by increasing the number of organs available to those who need transplants. The arguments in that debate are very similar to those that can be raised against coronavirus vaccine challenge trials.

Thus, answers to standard objections to organ markets can also help justify coronavirus challenge trials. Consider, for example, the claim that paid challenge trials will exploit the poor. I answered that objection in the organ market context here:

[M]any people oppose legalizing organ markets because they believe it would lead to exploitation of the poor. But most of them have no objection to letting poor people perform much more dangerous work, such as becoming lumberjacks or NFL players. If it is wrong to allow poor people to assume the risk of selling a kidney for money, surely it is even more wrong to allow them to take much greater risks in order to increase their income.

If you believe that organ markets must be banned because they exploit the poor, you must also argue that the poor should be forbidden to take jobs as lumberjacks and football players. If you believe that such considerations justify banning participation in organ markets even by the non-poor, than we must also categorically forbid monetary compensation for football players. Indeed, the case for banning the payment of football players is actually much stronger than that for banning organ markets. Unlike the ban on organ markets, a ban on professional football would not lead to the deaths of thousands of innocent people.

If you still worry that the poor will be “exploited” in either organ markets or challenge trials, I offer the second-best solution of restricting participation in such markets and  trials to the nonpoor. Simply adopt a rule that all test subjects must have incomes above whatever threshold you think is enough to avoid “exploitation” (e.g.—above the poverty line or above the average income in the participant’s country).

We do not need an infinite supply of volunteers for challenge trials. Just a few thousand. It should be possible to find them even if participation is limited to those above a certain income floor. As of this writing, the admirable “1 Day Sooner” website has already gathered over 25,000 volunteers who are willing to participate. Many, perhaps most of them, are not poor. And surely we can find more, if need be.

Here is my response to claims that paying organ donors (and by extension Covid challenge trial participants) will somehow unjustly “commodify” the body:

Other critics believe that organ markets must be banned because it is inherently wrong to “commodify” the human body. Yet most of them have no objection to letting a wide range of people profit from organ transplants, including doctors, insurance companies, hospital administrators, medical equipment suppliers, and so on. All of these people get paid (often handsomely) for helping transfer organs from one body to another.

Perversely, the only participant in the process forbidden to profit from the “commodification” of organs is the one who provided the organ in the first place. If you believe that people should be forbidden to sell kidneys because earning a profit from organs is immoral “commodification” of the body, you must either oppose paying all the other people who currently earn money from organ transplants, or explain why they, unlike the original owner of the kidney, are not also engaged in commodification…..

I would add that we pay volunteers to risk harm to their bodies in many other contexts. Soldiers, police, firefighters, lumberjacks, coal miners, and professional football players are all examples. Participants in many of these professions accept greater risks than organ donors or young, healthy Covid-19 challenge trial participants are likely to undergo. If “commodification” is fine for lumberjacks, police, and firefighters, it should be permissible for challenge trial participants, as well.

There is, of course, a danger that some participants will not be properly informed of the risk. But that can be minimized by securing “informed consent” ahead of time, as is already required for medical procedures.

The information available to participants may well be imperfect. Covid-19 only appeared a few months ago, and there are still uncertainties about its effects. But we allow people to voluntarily take imperfectly understood risks for pay in many other contexts. For example, soldiers and police often do not know ahead of time exactly what sorts of dangers they may face in the course of doing their jobs. It is notoriously difficult to predict what risks may arise in future battles. The moral requirement of informed consent can surely be satisfied if volunteers are given the best information available at the time, and also informed that there are some risks involved that experts may not yet fully understand.

It is also worth noting that there are already volunteers available who do have a solid understanding of the risk, and who are not readily dismissed as desperate poor people ripe for “exploitation.” Consider, for example, this article by Princeton student Isaac Martinez, explaining his willingness to volunteer, or this one by Bloomberg columnist Faye Flam, discussing her decision to do so.

There may be some who object to challenge trials even if the participants are not paid, on the ground that it is intrinsically immoral to deliberately subject healthy people to the risk of a deadly disease, even if they consent. But, as already discussed, we routinely allow volunteers to take risks with their lives and health in a variety of other contexts, including many where the potential benefits are far smaller than here. If it is not immoral to allow soldiers, police, and firefighters to take such risks, the same goes for challenge trial participants.

Like others who risk their lives to benefit others, challenge trial volunteers deserve our gratitude, and proper compensation for their efforts. And there is no good moral justification for forbidding them to take those risks. To the contrary, we should move ahead with challenge trials as soon as feasible. Every day of delay could literally be a matter of life and death—a great many lives and deaths.

from Latest – Reason.com https://ift.tt/2TJr89i
via IFTTT

Sen. Hawley Demands Google Explain “Long Pattern Of Censorship” After YouTube Comments Scandal

Sen. Hawley Demands Google Explain “Long Pattern Of Censorship” After YouTube Comments Scandal

Tyler Durden

Wed, 05/27/2020 – 14:15

Senator Josh Hawley (R-MO) has demanded that Google answer questions over allegations that it censored YouTube comments critical of the Chinese Communist Party – which the Silicon Valley giant told The Verge was simply a ‘technical error’ they are working to fix.

Hawley rejected the explanation in a Wednesday letter to Google CEO Sundar Pichai, calling it part of a “long disturbing pattern” of Google pandering to the CCP in order to curry favor with the Xi regime, and adding that “This kowtowing is unacceptable,” according to the Washington Times.

On Tuesday, Google was busted auto-deleting comments critical of the CCP, including “communist bandit” and “50-cent party” – “the latter term referring to a division of the Chinese Communist Party whose purpose is deflecting criticism fromm the Party by using sockpuppet accounts to spread online propaganda,” reads Hawley’s letter.

And as the Times notes, Hawley’s letter follows a similar correspondence from Rep. Jim Banks to Pichai demanding answers to similar questions over the platform’s decision to allegedly censor content critical of the CCP.

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