Can’t Seal Lawsuit to Protect the Marketability of Your House

Here’s the plaintiffs’ argument from their motion to seal in Kurland v. ACE American Ins. Co., 2018 WL 9903324 (D. Md. Sept. 14, 2018):

  1. Plaintiffs filed this first-party insurance action in September, 2015.

  2. In the Complaint, Plaintiffs sought coverage from their homeowners’ insurance carrier, ACE, for water and mold damage to their home.

  3. After years of adjusting, litigation filing, motion practice and a mediation, the case settled in May, 2017.

  4. Plaintiffs’ attempts to sell their Owings Mills home have been unsuccessful. Plaintiffs, on information and belief, cannot find a realtor or buyer in light of postings on the Internet concerning the lawsuit, which describe water damage and mold and the health effects on their eleven-year-old daughter while in the home.

  5. Even though Plaintiffs remediated the water damage and mold with documentation confirming same, Plaintiffs cannot get a realtor or buyer due to the postings on-line regarding this lawsuit.

  6. Undersigned counsel provided a copy of this Motion to Defense Counsel, who has advised that Defendant does not oppose the relief requested.

  7. Accordingly, Plaintiffs state that the financial harm they have endured from the said Internet postings outweighs the public right to the civil records on their insurance case being open. Plaintiffs respectfully request that the Court Seal the record in this case instantly. Plaintiffs would take this Court’s Order to each search engine company and each site owner to have the posts concerning this suit removed….

No, says Judge James K. Bredar:

Although the Court sympathizes with Plaintiffs, the motion will be denied because it fails to meet the governing standard for sealing a case.

Whether a court document should be sealed requires consideration of the standard set forth in Va. Dep’t of State Police v. Washington Post, 386 F.3d 567 (4th Cir. 2004). A party’s mere desire to keep information confidential does not suffice. Documents submitted to a court to support or oppose a motion for summary judgment can only be sealed if they pass a First Amendment test. Thus, the proponent of sealing such documents must proffer a compelling governmental interest and must show that the proposed sealing is narrowly tailored to serve that interest. Further, the party requesting sealing must present specific reasons in support of its position. In considering a motion to seal, a district court must give the public both notice of the sealing request and a reasonable opportunity to challenge it. In addition, consideration must be given to alternatives less drastic than sealing.

Plaintiffs have failed to demonstrate a compelling governmental interest to justify sealing the Defendants’ motion for summary judgment or any of its exhibits. Nor have they proposed a viable, less drastic alternative to sealing the entire case.

The Court notes that the rest of the documents filed were not in connection with a dispositive motion and, therefore, need not meet the higher bar of First Amendment sealing. Instead, the Fourth Circuit has differentiated between court documents that must be accessible to the press and public on First Amendment grounds and other court documents. Va. Dep’t of State Police, 386 F.3d at 575 (“the common law ‘does not afford as much substantive protection to the interests of the press and the public as does the First Amendment’ “). Thus,

“The common law presumes a right of the public to inspect and copy all judicial records and documents. This presumption of access, however, can be rebutted if countervailing interests heavily outweigh the public interests in access, and [t]he party seeking to overcome the presumption bears the burden of showing some significant interest that outweighs the presumption. Some of the factors to be weighed in the common law balancing test include whether the records are sought for improper purposes, such as promoting public scandals or unfairly gaining a business advantage; whether release would enhance the public’s understanding of an important historical event; and whether the public has already had access to the information contained in the records. Ultimately, under the common law the decision whether to grant or restrict access to judicial records or documents is a matter of a district court’s supervisory power, and it is one best left to the sound discretion of the [district] court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case.”

But even this less stringent standard has not been met by Plaintiffs. They chose to air their grievance in a public forum, the records of which are public records and presumed to be transparent to the public. And those records stayed accessible to the public for three years before Plaintiffs sought to have the case sealed. That the injurious allegations have been of public interest is borne out by their presence on the Internet.

The unfortunate consequence of Plaintiffs’ decision to seek justice for the damage done to their house is that the allegations have been reported but not Plaintiffs’ apparently successful efforts at remediation. Even so, the public interest still outweighs Plaintiffs’ interest in selling their house, and for that reason, their motion is DENIED.

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“It’ll Be A Miracle If Widespread Monetary Disaster Does Not Ensue” – Critical Monetary Lessons From Germany

“It’ll Be A Miracle If Widespread Monetary Disaster Does Not Ensue” – Critical Monetary Lessons From Germany

Authored by Alasdair Macleod via GoldMoney.com,

Germany suffered two currency collapses in the last century, in 1920-23 and1945-48. The architect of the recovery from the former, Hjalmar Schacht, chose to cooperate with the Nazi successors to the Weimar Republic, and failed. In that of the second, Ludwig Erhard remained true to his free market credentials and succeeded. While they were in different circumstances, comparisons between the two events might give some guidance to politicians faced with similar destructions of their state currencies, which is a growing possibility.

Introduction

Let us assume the next credit crisis is on its way. Given enhanced levels of government debt, it is likely to be more serious than the last one in 2008. Let us also note that it is happening despite the supposed stimulus of low and negative interest rates, when we would expect them to be at their maximum in the credit cycle, and that some $17 trillion of bonds are negative yielding, an unnatural distortion of markets. Let us further assume that McKinsey in their annual banking survey of 2019 are correct when they effectively say that 60% of the world’s banks are consuming their capital before a credit crisis. Add to this a developing recession in Germany that will almost certainly lead to both Deutsche Bank and Commerzbank having to be rescued by the German government. And note the IMF recently warned that $19 trillion in corporate debt is a systemic timebomb, and that collateralised loan obligations and direct exposure to junk held by the US commercial banks is approximately equal to the sum of their equity.

Then we can say with some confidence that a major credit crisis is developing, and that it will almost certainly be far greater than Lehman. We can also say that the money-printing by central banks to rescue both the banking system and government finances will be on a far greater scale, likely to destabilise the purchasing power of government currencies. If that happens, interest rates will then be forced higher as prices for everything begin to rise uncontrollably, irrespective of central bank interest rate policies. And where they depend on budget deficits being covered by additional issues of government stock, Government finances will be in crisis. It will threaten the ending of unbacked currencies based only on the faith and credit of governments whose spending is spiralling out of control.

The factors determining the pace of currency decline

The end of currencies might not be immediate. The lessons from the past tell us that the public can be slow to recognise what is happening to their money and savings. Currency collapses have happened in individual currencies before, but next time it appears it will be a common fate faced by all major currencies. In the past, there have been other sounder currencies available in the foreign exchanges, but with a declining dollar at the centre of it all, the alternatives to a cadre of collapsing currencies are extremely limited. The consequences for populations accustomed to welfare payments and services are bound to be drastic.

It is the interplay between foreign exchanges and domestic valuations that sets the pace for a currency’s decline. The Argentinian peso is a contemporary example of a currency that is still accepted in the foreign exchanges but is discarded as overvalued by its users. The proof is found in the black-market rate at over 70 to the US dollar compared with the foreign exchanges rate of 59.

Unlike the Argentinians who already value their pesos less than foreigners, in the major currencies the delusion of the masses about their frailty is almost absolute, and the learning process about the consequences of creating money out of nothing has yet to begin. The time taken for ordinary people and the foreign exchanges to learn the hard truths about accelerated currency debasement can vary enormously.

But fiat currencies die. Other than today’s currencies that have yet to do so they always have, and any student of money and the exchanges should be able to detect signs of their demise as well. The death of a currency is painful for all those involved. It is a national bankruptcy, but even though it is difficult to see how, nations and their peoples do survive the destruction of their currencies.

Germany experienced it twice in the last century. The first time paved the way for a dictatorship ten years later. The second had a more enduring legacy, making Germany one of the two most economically powerful nations in recent years, at least until the bureaucrats and planners won, folding the deutsche mark into the new euro. For politicians seeking to navigate their way through what is lining up to be the greatest credit crisis since the 1930s, the lessons from the German experience are salutary. In Britain, a new government will be formed by Christmas, and in its early years, it will probably face a global credit and banking crisis, threatening the future of sterling.

Assuming Boris Johnson wins and continues as Prime Minister, we know from his writings that he understands free markets, the importance of price discovery, the evils of excessive government intervention and regulation, and crony capitalism. He is in a minority in these views, though there are powerful figures around him who share them. This was similar to the position of two German nationals, who handled their currency collapses with different outcomes.

If a widespread currency collapse takes sterling with it, the political class will be unable to stop it. Then, will Boris be a Hjalmar Schacht, or a Ludwig Erhardt, both of which saw a collapse of the mark at different times and managed the subsequent recovery. It is an interesting thought.

Germany’s Weimar government

During the Weimar inflation, a weak government went from believing in Knapp’s pre-war Chartalist state theory of money under the previous sovereign regime, which allowed it to print at will, to learning the hard way of its fundamental errors too late to stop it. The whole Western world in this century has embarked on this journey, so Germany’s experience offers some salutary guidance. Just as interesting is how President trump would respond.

Before Hitler came to power in 1933, the post-war Weimar government had continued in office long after the people suffered the great inflation which ended in 1923. The ten years that followed showed that a system of government can survive a monetary catastrophe. Following the inflation, the Weimar government found itself still balancing the demands of the workers with those of industrial cartels, the Marxists and the Capitalists. And when Britain went off the gold standard in 1931 (along with the whole sterling area) the fall in sterling made German export prices suddenly too high in comparison by an estimated 20%. In 1930, Chancellor Brüning had already responded to the developing depression in America by tightening credit and reversing salary increases, so sterling’s devaluation was an extra blow. Combined with Brüning’s deliberate deflationary policies, this led to mass unemployment and the advancement of the Nazi party, which finally took control of the German economy in January 1933 when Hitler was appointed Chancellor.

This set the pattern to dictatorship described by Hayek in his The Road to Serfdom. In future, some nations with collapsed currencies are almost certain to follow a similar course, characterised initially by a weak government subsequently trying to be all things to everyone.

Whatever the character of that government, severe restrictions on the issue of a new, replacement currency will be needed if it is to have any credibility. It is very likely to find ready support from a population desperate to believe it will work, which is why and how Hjalmar Schacht succeeded in late-1923 as Currency Commissioner and President of the Reichsbank.

When he stabilised the mark, his office was a former charwoman’s cupboard. His secretary described his working day, thus:

“He sat on his chair and smoked in his little dark room which smelled of old floor cloths. Did he read letters? No. Did he write letters? No. He telephoned a great deal – to every German or foreign place that had anything to do with money and foreign exchange as well as with the Reichsbank and the Finance Minister. And he smoked. We did not eat much during that time. We usually went home late, often by the last suburban train, travelling third class. Apart from that he did nothing.”

As Germany’s Currency Commissioner, his was a department of only two with a telephone, including his secretary, Fräulein Steffeck, proof that with the right authority, that is all that is needed to implement a national currency policy. As long as it is properly managed, the lesson from the Weimar Republic is that a new state currency can succeed long enough to see a nation through its economic crisis. Germany then entered the “golden years”, a period of economic recovery and growth, admittedly fuelled by bank credit expansion. While Schacht’s basic monetary policy was very successful, politically he drifted towards Nazism, becoming Hitler’s Economy Minister in 1934, though he continued to advocate free markets while criticising Germany’s military spending.

While working from inside the establishment, Schacht’s free market ethos was directly at odds with fascism. German fascism permitted the ownership of private property on condition that the state directed its production. Schacht was both inside the Nazi regime and one of its greatest critics, even implicated in a plot to depose Hitler in 1938. However, his international credibility was too great for Hitler to sack him, but he was eventually dismissed in 1943.

Schacht was a remarkable man, a German patriot trying to do the best for his country at the most difficult of political times. He was exonerated at Nuremberg and completely so at the de-Nazification trial that followed.

He is a forgotten figure today, but having stabilised the economy by introducing and maintaining a sound monetary policy, he provided a brief window leading to Germany’s golden years in the late 1920s, which admittedly must have been fuelled to a large degree by the expansion of bank credit both in Germany and elsewhere. Other, perhaps, than his neglect of monetary expansion through bank credit, his efforts came to nought through events beyond his control. The wake of the Wall Street crash, Chancellor Brüning’s deflationary policies and the additional factor of sterling being driven off the gold standard in 1931 were the events which opened the door to fascism, and the complete destruction of its economy following Germany’s defeat in the Second World War.

Where Schacht failed, following the Second World War another German economist succeeded, and that was Ludwig Erhard.

Erhard’s rise to power

Erhard’s father was of peasant stock, who had moved from the land to Fürth in Northern Bavaria where he established a successful clothing store. Erhard fils had a settled, if unpretentious background with solid entrepreneurial values. Unfortunately, in childhood he suffered infantile paralysis, which forced him to wear orthopaedic shoes for the rest of his life. He was unable to take part in sporting activities, reduced, as it were, to be a spectator. He had few close friends and was either regarded as something of a loner, or having an independent non-collegiate mind.

Two weeks before Hitler was invalided in a gas attack, in September 1918 Erhard was badly wounded nearby by Allied shrapnel, requiring seven operations and not emerging from hospital until the following spring. He was officially invalided with a pension. But it was Hitler who was radicalised, while Erhard continued to have a more balanced positive outlook on life.

Doubtless informed by his father’s success as a small trader, Erhard understood that consumers mattered above all else, at a time when industry cartels dominated the German economy. Economic debates raged between the German historical school, cartel-supporting liberals, Marxists and then the Nazis. But he remained a lonely supporter of free markets, understanding that no form of state planning was able to provide what the markets demanded and set prices realistically.

Throughout his adult life, he held to his minority view. As a war invalid, he was too weak to work in his father’s store, and in 1919 enrolled in a business college in nearby Nuremberg. It was the start of his academic career, during which he developed an interest in money and economics. As an economist, he never became a consensus man. He did not join the liberals, who promoted cartelism and the state, nor did he embrace socialism. He firmly believed in freedom for the ordinary person. He rejected the current fashions of centralisation and state planning.

Unlike Schacht, Erhard did not join the Nazis. He remained apolitical, but he was clear in his personal objectives and always positioned himself to achieve those ends.

At the end of the Second World War, Germany was split into four military administrative zones: Russian, French, American and British. The one of immediate concern to Erhard was the American, under General Lucius D Clay, who had been instructed by the oversight committee (JCS 1067) that the standard of living of the German people should not be permitted to exceed that of their neighbours (an instruction he ended up ignoring). Furthermore, steps were to be taken to ensure Germany could not launch another war, and accordingly the economy was to be decentralised, war-related industries dismantled and business leadership de-Nazified.

Since it covered Southern Germany, the US occupation zone included Bavaria, Erhard’s home state, and he quickly came to the Americans’ attention as one of very few free-market economists untainted by Nazism. Furthermore, General Clay tended towards free markets himself, and Erhard was appointed Economics Minister in the Bavarian Government in September 1945.

The occupation zones were not initially permitted to trade with each other, so Erhard began to agitate for the combination of American and British zones, which eventually happened. In their co-responsibility with the Americans for the new Bizone, the British were very different from the Americans, having centralising and planning tendencies in line with the nationalisation policies of the Atlee government. However, Erhard chipped away at these obstacles, earning the trust and respect of the American military while being barely tolerated by the British military.

In October 1947, a new committee, the Special Office for Money and Credit met with Erhard as its chairman. In this position, he made it clear that he wanted to deregulate and liberalise the economy as soon as possible, in association with the planned currency reform. On 16 June 1948, the currency reform plans were set: every German would receive forty new deutsche marks immediately and a further 20 marks would follow in two months’ time. Five per cent of savings balances in old marks would be deposited therein immediately, and a further five per cent within ninety days. All balances of old marks would be destroyed, amounting to eighty per cent of currency outstanding. Thus, the purchasing power of the mark was to be restored, and the enabling legislation was rushed through two days later. The new deutsche mark became legal tender for the Bizone on 21 June.

Erhard used his powers as Chairman of the VfW (Administration for Economics) to end rationing for most household items, without referring to the British and American authorities. General Sir Brian Robertson, the chief of the British occupation government objected strongly, because Britain still had rationing. General Clay for the Americans sympathised with Erhard in the knowledge that if he had consulted the military authorities first, the British would have vetoed it, so the matter of Erhard exceeding his authority was dropped.

The following week, the Bizonal economy enjoyed a seeming miracle. Goods appeared in the shops, and shopkeepers sold them for a new money with decent purchasing power. The black market disappeared, and workers no longer wasted time away from their jobs trying to obtain goods on the black market. It was the start of the new German economy.

There were short-term problems. Prices rose, while wages were still controlled, but these were transitional. Erhard had to continue the fight to ensure free markets operated, that the consumer had preference over state-directed businesses, and cartels remained abolished. It was a fight that lasted until the late-1950s. But almost alone, surrounded by bureaucrats, planners and other enemies of free markets, he had through dogged determination set Germany on the path to prosperity. It was referred to as the German Miracle, when it was nothing of the sort: it was the German people given a greater degree of economic freedom than ever before. It was what they did with that freedom, which was Erhard’s enduring legacy.

The lessons for today

There must be no doubt that central bankers create the conditions for their own downfall. They are entirely responsible for a cycle of credit expansion and contraction that leads to what is generally referred to as the business cycle, implying the blame for it lies with the animal spirits in free markets. This is incorrect.

The fundamental problem with monetary and credit expansion is it replaces random market action, the non-cyclical case, with coordinated action. All production and consumption are stimulated at the same time by monetary expansion. Instead of Schumpeter’s creative destruction occurring randomly over time, it is amplified and bunched into a cyclical crisis. Furthermore, through the dollar and the G20 forum, all central banks now expand money and credit at the same time, ensuring the inevitable crisis will be both everywhere and magnified even further through common trade relationships. It is also the nature of the beast for successive credit cycles to become increasingly destabilising, because the distortions created by monetary policy in previous crises are never allowed to wash out of the system.

One cannot say with certainty that the forthcoming credit crisis will destroy government currencies, but the indications are that the monetary and bank credit expansions of the US dollar likely to be undertaken in an attempt to prevent the developing recession turning into a slump will be so large that they will undermine its purchasing power. In the Eurozone, monetary expansion so far has been more subdued, but that is because it has mainly been taken up by governments and not their non-financial private sectors. And Japan’s monetary expansion has almost all gone into savers accounts and been loaned to the government. China has set in train a directed monetary expansion greatest of all the other major currencies.

It will be a miracle if a widespread monetary disaster does not ensue. But contrary to the views of doom-mongers and preppers, life will go on. The key to the situation following the event will be whether free markets are properly embraced. A re-elected President Trump and Prime Minister Johnson might care to draw on the lessons from Germany in the twentieth century, which showed how not to do it, and then how to provide a lasting legacy for their nations and themselves.


Tyler Durden

Sat, 11/02/2019 – 08:10

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The Third Wave Of Globalization Has Ended

The Third Wave Of Globalization Has Ended

The global economy is certainly at crossroads. Protectionism and nationalism, a well-matched marriage of global chaos at the moment, has threatened to end the third wave of globalization that began in the late 1980s. 

Capital Economics has published a compelling research note, titled “The end of globalization,” specifying how 150 years of globalization could’ve put in a significant peak in the last several years, all thanks to President Trump’s trade war with China. 

The third wave of globalization began in the late 1980s, mostly driven by technological advancements and shifting labor and capital around the world to the most cost-effective regions. 

While the Western hemisphere consumed for three decades, the Eastern hemisphere manufactured the goods (which produced rising inequality in the West and thus how protectionism and nationalism were sparked), but the status quo of how supply chains are organized around the world could be changing as world trade volumes have hit a significant wall. 

In terms of the Elliott wave principle, a third wave eventually gives out to a corrective fourth wave. Capital Economics believes the world is headed towards a period of de-globalization, or as history will call it a fourth corrective wave.  

“It is possible that this is just a temporary hiatus and that an unforeseen technological breakthrough will trigger a new wave of globalisation. But such waves are rare. In fact, there are several reasons – even before we consider the trade war – why globalisation has peaked. First, all the major steps to integrate the global system have been taken. Second, advanced manufacturing techniques mean that the location of manufacturing no longer hinges on where labour costs are cheapest. Third, complex supply chains have reached their limit. Fourth, China is unlikely to open up its capital markets significantly.

Reaching the peak of globalisation is not necessarily a cause for alarm for the world economy. On the contrary; the technological developments that are partly driving these trends will boost productivity growth and widen consumer choice. That said, given that the most common development path begins with labour-intensive manufacturing in sectors such as textiles, life for the poorest countries will become more difficult. This will add to the structural headwinds already facing emerging markets.

What’s more, a more malign form of policy-driven de-globalisation – where cross-border trade and capital flows fall as a share of GDP – is looking increasingly likely. In the past, it is policy which has caused globalisation to roll back. While the first wave of globalisation ground to a halt during World War One, it was definitively ended by the protectionism of the 1930s. And the second wave drew to a close after the Nixon shock of 1971 which was followed by Reagan’s trade restraint policies.”

Now all this could change with a new president in 2020, tariffs could then be removed, and globalization returns, but overall, it’s likely that the damage to complex global supply chains has already been done, and will peak globalization through at least 2025. If President Trump wins another term, then the fourth corrective wave will dive deeper. 

The emergence of China as a rising power was bound to cause economic disagreements between the West. More importantly, it has led to the Thucydides Trap, where the US, the status quo great power of the world, has threatened China, the rising power, with economic sanctions, all in the attempt to stop its ascension in becoming the next global superpower. There have been 16 cases in which rising powers threaten to displace the status quo powers in the last 500 years, and about 12 of these ended in a shooting war.

Over time, trade wars have sparked periods of de-globalization that have often led to shooting wars. Just look at how the first wave of globalization ended; WWI started shortly after that. 

The fourth corrective wave of de-globalization is likely to “break-up of the world economy into competing regional blocs,” Capital Economics noted.

The implications of protectionism for the world economy over the coming decade could result in lower asset returns.

“If a policy-driven reduction in integration slowed economic growth and increased frictions to global financial markets, this effect could be a major drag on returns. But given the starting point of very low bond yields, the drag on equities would not stop them from outperforming bonds, unless de-globalisation took the most severe forms we have discussed,” Capital Economics wrote.

With globalization peaked, the depth of the fourth corrective wave is on our minds. No matter what, the world’s economy is fracturing into blocs that will produce lower global trade volumes and depressed returns for risk assets through the 2020s. 


Tyler Durden

Sat, 11/02/2019 – 07:35

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Carney’s Green Crypto Currency: Prelude To A Financial Meltdown

Carney’s Green Crypto Currency: Prelude To A Financial Meltdown

Authored by Matthew Ehret via The Strategic Culture Foundation,

The momentum pushing for the overhaul of the financial system from its current disorderly state of unbounded speculation (amounting to over $1.5 quadrillion of derivatives) towards a “reformed central bank-driven” system of green finance is moving startlingly fast. The fact that this momentum is both coming from “top down” echelons of the City of London as well as the “bottom up” anarchist mobs of Extinction Rebellion is also not a coincidence as it has now been firmly proven that both are coordinated by the same billionaire speculators who created the economic bubble of an economy now ripe to blow.

In the case of Mark Carney’s Bank of England, the former Bank of Canada governor/Goldman Sachs man has recently led the hectic campaign for a green digital crypto-currency to replace the bankrupt US dollar. Since his announcement of this crypto plan on August 22, the Bank of Canada quickly fell into line declaring its support of the agenda on October 15.

Carney’s colleagues in the United Nations Conference on Trade and Development (UNCTD) amplified this message on October 15 saying: “What is needed is a Global Green New Deal that combines environmental recovery, financial stability and economic justice through massive public investment in decarbonizing our energy, transportation and food systems while guaranteeing jobs for displaced workers and supporting low carbon growth paths in developing countries… through the transfer of appropriate technologies”.

Carney was joined by former Bank of England Governor Mervyn King who recently warned that a “financial Armageddon” is looming unless central banks are permitted to unleash unbounded quantitative easing once more.

The Storm now Emerging

The fact that this highly coordinated push is happening now is not unconnected to the elephant in the room: not only is it a myth that the financial system recovered after the near-meltdown of 2008, but the truth is that the crisis has only become magnitudes worse today, with many signs now pointing to an even bigger blowout that no amount of quantitative easing can solve.

Since September 17, a radical new wave of bailouts have been unleashed with the NY Federal Reserve pumping $50-$100 billion of short term loans/day into the big banks in order to fight an immanent “liquidity crunch”. Meanwhile the IMF Global Financial Stability Report of 2019 has sounded the alarm that the corporate debt of eight leading nations has grown to a record $19 trillion upon which sits innumerable trillions of derivatives bets. The IMF Report authors stated that “a sharp, sudden tightening in financial conditions could unmasks the vulnerabilities” of the system.

Derivatives and the Unreality of Modern Banking

When the 2008 crisis hit, many people woke up to the ugly fact that they had been living a lie.

Illusions had blown up so dramatically that many were able to examine their own axioms and began to think more clearly about the real principles of political economy which globalization had denied to exist. This was hard not to do when Congressmen like Brad Sherman publicized that he and others were threatened with Marshall Law in America if he did not support a bailout of “too-big-to-fails”. Sadly, as the post-2008 “bailout system” emerged, speculation only continued to grow and the west was told that “the fundamentals were sound”, Globalization and the neoliberal paradigm had proven themselves and people went back to sleep.

What was the lesson we SHOULD have learned in 2008?

Economics is not digital. It is not even monetary. Hell it is not even resource-based. Of course, resources, money and even digital currencies may play important roles in an economic system, but the system’s viability- what we may call the “cause of value”, is not premised upon any of those things. This fact was understood more widely in the thirty post WWII years among trans-Atlantic nations. But with the 1971 floating of the US dollar off of the gold standard and onto speculative markets, the new paradigm of “money-first, reality second (or never)” was unleashed and nations stripped of their qualified leaders soon also became stripped of their real assets as well as their ability to generate credit for long term infrastructure or impose protective tariffs in defense of their own interests- both practices officially banned by NAFTA, the WTO and the EURO-cage.

Throughout the 1990s derivatives increased from $2 trillion in 1992 to $70 trillion in 1999 at the height of the Y2K bubble. Once that bubble blew, many thought the “end was nigh”, and started waking up again but due to the 1999 repeal of Glass Steagall followed by the 2000 deregulation of over-the-counter derivatives now being supported with supercomputers and “high-frequency trading”, the illusion was given new life and the $70 trillion bubble became $500 trillion by 2007 when the subprime bubble blew. To put things in proportion, global GDP amounts to $85 trillion.

Where was the Resistance?

Why didn’t more people fight throughout the 1970s, 1980s, 1990s, and 2000s against this collapse of manufacturing, decay of vital infrastructure and the loss of those very practices which created the foundations first world living standards which generations unborn required to survive?

Admittedly, a few did.

Deutschebank President Alfred Herrhausen tried to revive the pro-industrial growth model as the Berlin Wall fell, but a November 1989 assassination put an end to that. American presidential candidate Lyndon LaRouche admittedly led a powerful resistance within America, but an FBI crackdown in 1988 put the man and his leading allies in maximum security prison for years. There were a few others, but for the most part the lesson learned by the political class, and citizens who should have known better was “don’t make waves”, keep your head down, and you might get material comfort while the outskirts of the empire go to hell.

New Silk Road or New Green Deal

It is no secret that Carney as well as French Finance Minister Bruno LaMaire have recently stated that if a Global Green New Deal is not imposed quickly then China’s New Silk Road will become the basis of a new post-Bretton Woods system. In the minds of an oligarchical governing class obsessed with control, this multipolar future premised on long term growth and international development projects WITH NO DEFINED ENDPOINT POSSIBLE is a horror not to be permitted- even at the cost of launching WWIII.

This is where the economic meltdown and the green digital currency “solution” are revealed in their full ugliness.

The reason why those countries led by Russia and China are jumping on board a New Silk Road is because the paradigm governing it is premised upon REAL VALUE! By lifting people out of poverty (800 million in China alone), and valuing the creative powers of mind which multiply their opportunities of action when given a pro-industrial growth-oriented paradigm, these Eurasian powers have tapped into the source of value which guided the west in the post WWII years. The problem with this paradigm which zero-sum thinking geopoliticians HATE is that once any genuine program of serious development starts, you can’t really stop. It’s an open system and since it is premised on human creative thought and free will, it is also non-linear. This fact of open-non linearity is really humanity’s saving grace.

When nations elevate their citizens to higher standards of living, rates of consumption increase, as do rates of attrition of existing resource baskets, but cognitive powers also increase which must offset that entropy with greater rates of anti-entropy through new discoveries and inventions! These must be applied in the form of industrial and technological progress. Imagine what the world would already look like if JFK’s program for a space based economy powered by nuclear fusion wasn’t de-railed over his dead body!

This entire science of physical economy is both at the heart of the Belt and Road Initiative today and its principles were discussed already many decades ago in the 1984 textbook So You Wish to Learn All About Economics and associated video the Power of Labor. It is well worth taking the time to work through this material seriously if one considers themselves a truth-seeker in today’s world.

The only reason why the Bank of England’s green digital currency is taken seriously at all today is because westerners have become so psycho-spiritually detached from reality during the years since the “consumer society cult” led people to believe that a nation could magically exist as a services economy without producing.

Just like those technocrats in 1919 who imposed impossible Versailles reparations onto a defeated Germany while simultaneously gouging the physical economic basis of the Weimar Republic’s existence, today’s technocrats are hungry for a new fascist solution to the problem of sovereign nation states. We know what almost happened in Germany when the last project funded by the Bank of England failed in 1945… but what about today?


Tyler Durden

Sat, 11/02/2019 – 07:00

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Impeachment Is Both the Cause and the Effect of a Too-Powerful Presidency

By focusing all of its efforts on impeachment during a presidential campaign, Congress has given away the game: Its members are little more than pawns in a winner-take-all battle for the presidency and its vast and ever-growing powers. Worse, they seem to prefer it that way.

Impeachment is messy, like digging out the pit from an overripe peach. The formal process is difficult for Americans to comprehend. The criteria are blurry and debatable. It requires nearly everyone involved to perform some amount of hypocritical partisan contortionism. It’s the bluntest of instruments in politics, and that’s really saying something.

Because of this confusingly contingent nature of impeachment, many in Congress are currently extremely busy practicing “strategic silence.” They’re waiting to see whether the 58 percent of Americans who told Washington Post/Schar pollsters in early October that they support the impeachment inquiry will stick to their guns (and whether the number of likely Republican voters in their midst will grow larger).

But it is increasingly clear that, especially for party leadership in Congress, the game is worth the candle. The game is worth a whole candelabra, in fact. A chandelier, even.

Impeachments are becoming more frequent, with only one—of Andrew Johnson in 1868—in the first couple centuries of U.S. history and three (yes, we’re counting Nixon) in the last 50 years. It’s not a coincidence that the latter period has also seen unprecedented growth in the powers of the president and in the number of dollars and lives at his disposal.

Even the substance of the narrow matter at hand in 2019 demonstrates this dynamic. At issue in the impeachment inquiry—at least at press time, since these things have a tendency to develop quickly—is the implication of a quid pro quo offered to a foreign leader in a phone call with Donald Trump. Depending on your reading of the evidence, the president may or may not have intentionally given the impression that the price of U.S. military aid to Ukraine was some kind of dirt on a political rival, Joe Biden.

There are two ways to prevent this kind of alleged self-interested self-dealing from the White House. One option would be to elect a person of high moral character who also has a well-developed understanding of the rules and strictures that govern the office—someone who is inclined to respect those rules in letter and spirit as well as to honor the guidelines for transparency that allow other government officials and the press to verify the upright and noble exercise of his vast authority. We would then have to locate, nominate, and elect such a person every four to eight years unto eternity. We would have to trust not only that each president embodies all of these traits but also that he has surrounded himself with similarly virtuous characters. And we would have to assume that coming into possession of such powers is not itself corrupting. Good luck!

Another option would be to limit the power of the presidency. This approach is also difficult, but it can be done. In today’s case, the problem could have been avoided by the simple expedient of making it impossible for any president to control the disbursement of millions of dollars to foreign leaders at his own discretion, and by making that restriction on his authority so clear that favor seekers could have no plausible misunderstanding about who holds the purse strings.

There are matters that are genuinely the business of the executive, the all-important Supreme Court appointments among them. But it is not the case that, as Trump has asserted, “I have an Article II where I have the right to do whatever I want as president.”

In pursuing impeachment to the exclusion of all else, Congress has muddled the message about its own prerogatives and complicated its defense of them, all while dramatically reducing the time and energy available to actually exercise those prerogatives in a responsible manner.

Impeachment, at least as it is currently being practiced, does not restrict the vast powers of the president—it’s merely an attempt to wrest those powers from a particular man.

“As I learn more and more each day, I am coming to the conclusion that what is taking place is not an impeachment, it is a COUP, intended to take away the Power of the People, their VOTE, their Freedoms, their Second Amendment, Religion, Military, Border Wall, and their God-given rights as a Citizen of The United States of America!”

This was Trump’s analysis of those early October impeachment inquiry polls. And he wasn’t the only one floating the idea that impeachment proceedings would be somehow contrary to the democratic spirit. As Sen. Ted Cruz (R–Texas) told MSNBC’s Chris Hayes in October, “The fact that he shouldn’t have gone down that road is a long way from saying, ‘Therefore, he should be impeached and forcibly removed from office after the American people have voted in a presidential election.'”

But what is in fact contrary to the democratic spirit is the monarchical idea that the president alone is the embodiment of the power of the people, the lone defender of our rights. That’s a big job. And the Founders, in their great and unmatched wisdom, saw fit to distribute it across a rather large cast of characters. They gave the House the impeachment power in order to make coups unnecessary. The existence of elections cannot logically make impeachments a violation of the democratic process. Every president who has been impeached was, after all, voted into office first.

Trump could very well be re-elected post-impeachment. And any attempt by Congress at that point to prevent him from being sworn in a second time would indeed be undemocratic, unconstitutional, and unconscionable—an actual coup.

Rather than squabble over the presidency, Congress can and should reassert its considerable constitutional powers. It could start by reclaiming the sole right to declare war and rediscovering its lawmaking authority, the latter of which it has ceded to executive branch bureaucrats out of laziness, cowardice, and general ineptitude in the face of genuinely difficult work. But there’s little evidence the legislative branch has any intention of doing that.

If, at the end of all this, President Mike Pence sits behind the Resolute desk in the Oval Office, what has been accomplished? His presidential pen, phone, and Twitter account will still retain the same outsized power as his predecessors’. He will be just as tempted to abuse that power and just as alone in his burden. And if, on the first Tuesday of November, President Biden emerges victorious (or President Warren, or President Sanders, or even President Amash), we will still have the same destructive imbalance between the branches, the same motivation to go all-in on the battle for the presidency, and the same incentives to begin calling for  impeachment proceedings on the Wednesday morning after each Election Day, before the new president even takes office.

Impeachment is the hair of the dog after an all-night executive power bender. Sure, a Bloody Mary might make you feel better for a little while. But in the long run, it might be better to get off the sauce entirely.

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Impeachment Is Both the Cause and the Effect of a Too-Powerful Presidency

By focusing all of its efforts on impeachment during a presidential campaign, Congress has given away the game: Its members are little more than pawns in a winner-take-all battle for the presidency and its vast and ever-growing powers. Worse, they seem to prefer it that way.

Impeachment is messy, like digging out the pit from an overripe peach. The formal process is difficult for Americans to comprehend. The criteria are blurry and debatable. It requires nearly everyone involved to perform some amount of hypocritical partisan contortionism. It’s the bluntest of instruments in politics, and that’s really saying something.

Because of this confusingly contingent nature of impeachment, many in Congress are currently extremely busy practicing “strategic silence.” They’re waiting to see whether the 58 percent of Americans who told Washington Post/Schar pollsters in early October that they support the impeachment inquiry will stick to their guns (and whether the number of likely Republican voters in their midst will grow larger).

But it is increasingly clear that, especially for party leadership in Congress, the game is worth the candle. The game is worth a whole candelabra, in fact. A chandelier, even.

Impeachments are becoming more frequent, with only one—of Andrew Johnson in 1868—in the first couple centuries of U.S. history and three (yes, we’re counting Nixon) in the last 50 years. It’s not a coincidence that the latter period has also seen unprecedented growth in the powers of the president and in the number of dollars and lives at his disposal.

Even the substance of the narrow matter at hand in 2019 demonstrates this dynamic. At issue in the impeachment inquiry—at least at press time, since these things have a tendency to develop quickly—is the implication of a quid pro quo offered to a foreign leader in a phone call with Donald Trump. Depending on your reading of the evidence, the president may or may not have intentionally given the impression that the price of U.S. military aid to Ukraine was some kind of dirt on a political rival, Joe Biden.

There are two ways to prevent this kind of alleged self-interested self-dealing from the White House. One option would be to elect a person of high moral character who also has a well-developed understanding of the rules and strictures that govern the office—someone who is inclined to respect those rules in letter and spirit as well as to honor the guidelines for transparency that allow other government officials and the press to verify the upright and noble exercise of his vast authority. We would then have to locate, nominate, and elect such a person every four to eight years unto eternity. We would have to trust not only that each president embodies all of these traits but also that he has surrounded himself with similarly virtuous characters. And we would have to assume that coming into possession of such powers is not itself corrupting. Good luck!

Another option would be to limit the power of the presidency. This approach is also difficult, but it can be done. In today’s case, the problem could have been avoided by the simple expedient of making it impossible for any president to control the disbursement of millions of dollars to foreign leaders at his own discretion, and by making that restriction on his authority so clear that favor seekers could have no plausible misunderstanding about who holds the purse strings.

There are matters that are genuinely the business of the executive, the all-important Supreme Court appointments among them. But it is not the case that, as Trump has asserted, “I have an Article II where I have the right to do whatever I want as president.”

In pursuing impeachment to the exclusion of all else, Congress has muddled the message about its own prerogatives and complicated its defense of them, all while dramatically reducing the time and energy available to actually exercise those prerogatives in a responsible manner.

Impeachment, at least as it is currently being practiced, does not restrict the vast powers of the president—it’s merely an attempt to wrest those powers from a particular man.

“As I learn more and more each day, I am coming to the conclusion that what is taking place is not an impeachment, it is a COUP, intended to take away the Power of the People, their VOTE, their Freedoms, their Second Amendment, Religion, Military, Border Wall, and their God-given rights as a Citizen of The United States of America!”

This was Trump’s analysis of those early October impeachment inquiry polls. And he wasn’t the only one floating the idea that impeachment proceedings would be somehow contrary to the democratic spirit. As Sen. Ted Cruz (R–Texas) told MSNBC’s Chris Hayes in October, “The fact that he shouldn’t have gone down that road is a long way from saying, ‘Therefore, he should be impeached and forcibly removed from office after the American people have voted in a presidential election.'”

But what is in fact contrary to the democratic spirit is the monarchical idea that the president alone is the embodiment of the power of the people, the lone defender of our rights. That’s a big job. And the Founders, in their great and unmatched wisdom, saw fit to distribute it across a rather large cast of characters. They gave the House the impeachment power in order to make coups unnecessary. The existence of elections cannot logically make impeachments a violation of the democratic process. Every president who has been impeached was, after all, voted into office first.

Trump could very well be re-elected post-impeachment. And any attempt by Congress at that point to prevent him from being sworn in a second time would indeed be undemocratic, unconstitutional, and unconscionable—an actual coup.

Rather than squabble over the presidency, Congress can and should reassert its considerable constitutional powers. It could start by reclaiming the sole right to declare war and rediscovering its lawmaking authority, the latter of which it has ceded to executive branch bureaucrats out of laziness, cowardice, and general ineptitude in the face of genuinely difficult work. But there’s little evidence the legislative branch has any intention of doing that.

If, at the end of all this, President Mike Pence sits behind the Resolute desk in the Oval Office, what has been accomplished? His presidential pen, phone, and Twitter account will still retain the same outsized power as his predecessors’. He will be just as tempted to abuse that power and just as alone in his burden. And if, on the first Tuesday of November, President Biden emerges victorious (or President Warren, or President Sanders, or even President Amash), we will still have the same destructive imbalance between the branches, the same motivation to go all-in on the battle for the presidency, and the same incentives to begin calling for  impeachment proceedings on the Wednesday morning after each Election Day, before the new president even takes office.

Impeachment is the hair of the dog after an all-night executive power bender. Sure, a Bloody Mary might make you feel better for a little while. But in the long run, it might be better to get off the sauce entirely.

from Latest – Reason.com https://ift.tt/337sTzC
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Trump Administration Loses a Sanctuary City Case—Yet Again

For over two years, the Trump administration has been trying to force “sanctuary cities” to assist federal efforts to deport undocumented immigrants by imposing various new conditions on federal grants to state and local governments that refuse to comply. And throughout that time, courts have repeatedly ruled against the administration’s plans, on the ground that only Congress can authorize conditions on federal grants to state and local governments. The executive is not permitted to make up his own conditions in an attempt to pressure states into doing his bidding.

The latest such defeat for the administration came yesterday, in a decision issued by the US Court of Appeals for the Ninth Circuit, addressing a lawsuit brought by the City of Los Angeles seeking to overturn the administration’s attempt to impose three immigration-related conditions on recipients of Edward Byrne Memorial Justice Assistance grants for law enforcement agencies.

In 2017, then-Attorney General Jeff Sessions sought to cut Byrne Memorial Justice Assistance Grant funds to state and local governments that fail to meet three conditions:

1. Prove compliance with 8 USC Section 1373, a federal law that bars cities or states from restricting communications by their employees with the Department of Homeland Security and Immigration and Customs Enforcement (ICE) about the immigration or citizenship status of individuals targeted by these federal agencies.

2. Allow DHS officials access into any detention facility to determine the immigration status of any aliens being held.

3. Give DHS 48 hours’ notice before a jail or prison releases a person when DHS has sent over a detention request, so the feds can arrange to take custody of the alien after he or she is released.

The Los Angeles case addresses only the second and third conditions. But, like every other federal court that has reviewed the administration’s attempt to impose new conditions on the Byrne Grants, the Ninth Circuit struck down the conditions because “none of DOJ’s proffered bases for statutory authority gives the Attorney General or the Assistant AG the power to impose the notice and access conditions.” The conditions were not authorized by Congress, and therefore the president cannot impose them.

This latest ruling is nonetheless notable for two reasons. First, the opinion was authored by Judge Sandra Ikuta, a Republican George W. Bush appointee, and joined by fellow Bush appointee Judge Jay Bybee, often considered one of the most conservative judges sitting on any federal appellate court.

Some liberals have even called for Bybee’s impeachment because of his role in drafting the notorious “torture memos” in the Bush administration, which—among other things—advocated an extremely broad interpretation of executive power.  If your claims of executive authority are too broad to satisfy Judge Bybee, you may want to rethink them.  Yet such is the sweeping nature of the Trump administration’s assertions of executive power over immigration, that this is not the first time that Bybee ruled against them in a significant immigration-related case.

That said, it is not particularly surprising to see conservative judges ruling against the Trump Administration in a sanctuary city case. The “blue” jurisdictions bringing these lawsuits are relying on federalism principles long advocated by conservatives and enshrined in Supreme Court decisions authored by conservative justices such as Samuel Alito and the late Antonin Scalia. In previous sanctuary cases, conservative and liberal judges have largely ruled the same way—against the administration—with only very rare exceptions.

The second somewhat novel aspect of this case is Judge Kim Wardlaw’s concurring opinion, expressing the concern that the majority, though rejecting the two conditions, nonetheless gives the executive too much leeway:

I concur with the majority to the extent it holds that the challenged immigration conditions were not authorized by Congress, and are thus unlawful. But once the
majority concluded that the challenged notice and access conditions are not lawful “special conditions” or “priority purposes” and were thus beyond the powers granted by
Congress to the Department of Justice, it should have stopped, as in full stop. Everything else the majority writes about 34 U.S.C. § 10102(a)(6) is “unnecessary to the decision
in the case and [is] therefore not precedential.” Cetacean Cmty. v. Bush, 386 F.3d 1169, 1173 (9th Cir. 2004)….. In other words, the rest of the asides cast by the majority are dicta. In dicta, the majority finds vague, unidentified powers bestowed upon the DOJ in an illustrative 2006 amendment to a “duties and functions” statute in a different subchapter of the Act that established the Byrne JAG program. See Violence Against
Women and Department of Justice Reauthorization Act of 2005, Pub. L. No. 109-162, 119 Stat. 2960 (2006). This putative power grab not only unnecessarily portends a circuit
split, its analysis also stands contrary to every other court to have addressed the issue in a reasoned opinion….

[I]n dicta, unnecessary to its holding, the majority seems to adopt the DOJ’s “independent power” construction of § 10102(a)(6), writing in passing that “the Attorney
General and the Assistant [Attorney General for the Office of Justice Programs] through delegation have the authority to impose special conditions on all grants and determine priority purposes for formula grants, as those terms are properly
circumscribed.”

Not surprisingly, the majority takes a different view, and argues that their interpretation of the discretion given to the executive is “narrow”and that Wardlaw has set up a “strawman” argument:

Because we interpret the terms “special conditions” and “priority purposes” narrowly, we agree with our sister circuits that § 10102(a)(6) does not give the Assistant AG broad
authority to impose any condition it chooses on a Byrne JAG award….

In opposition to our interpretation of § 10102(a)(6), the concurrence constructs a strawman argument. It ignores our actual interpretation of § 10102(a)(6), and instead accuses us of adopting a “sweeping characterization” of DOJ’s authority, Concurrence at 44, that allows the “essentially limitless” imposition of any conditions desired, Concurrence at 44–45…. Based on this strawman argument, the concurrence then accuses us of creating a split with our sister circuits, which have rejected
such a broad interpretation…..

While the concurrence has an easy time battering its strawman, the concurrence fails to explain how our actual ruling, that DOJ has the limited authority to impose special
conditions designed to meet needs for carrying out the Byrne JAG program, could abrogate or “subvert” Byrne JAG’s funding scheme….

To fully understand the dispute between the majority and concurring opinions, you will likely have to read the relevant sections of both opinions. The issues are not easily summarized in a blog post. But my bottom line is that the majority’s position does indeed interpret DOJ’s power “narrowly,” though Judge Wardlaw may well be justified in arguing that it should be interpreted even more narrowly still.

While the issues in this and other sanctuary cases may sometimes seem arcane, they have broader implications for federalism that go far beyond the specific issues at stake. If the administration can exploit vague statutory language like “special conditions” and “priority purposes” to impose all kinds of new conditions on recipients of federal grants—without any specific authorization by Congress, the president could use this power to pressure state and local governments to do his bidding on a wide range of issues.

The Byrne Grant cases are just one of several fronts in the ongoing legal battle over federalism and sanctuary cities. I provide a fairly complete overview in this recent Texas Law Review article, though it unavoidably omits a few developments that have occurred since it was published a few months ago. Most recently, the Trump administration has sought Supreme Court review of one of the issues in its challenge to California’s “sanctuary state” law.

from Latest – Reason.com https://ift.tt/2C0HQHZ
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Trump Administration Loses a Sanctuary City Case—Yet Again

For over two years, the Trump administration has been trying to force “sanctuary cities” to assist federal efforts to deport undocumented immigrants by imposing various new conditions on federal grants to state and local governments that refuse to comply. And throughout that time, courts have repeatedly ruled against the administration’s plans, on the ground that only Congress can authorize conditions on federal grants to state and local governments. The executive is not permitted to make up his own conditions in an attempt to pressure states into doing his bidding.

The latest such defeat for the administration came yesterday, in a decision issued by the US Court of Appeals for the Ninth Circuit, addressing a lawsuit brought by the City of Los Angeles seeking to overturn the administration’s attempt to impose three immigration-related conditions on recipients of Edward Byrne Memorial Justice Assistance grants for law enforcement agencies.

In 2017, then-Attorney General Jeff Sessions sought to cut Byrne Memorial Justice Assistance Grant funds to state and local governments that fail to meet three conditions:

1. Prove compliance with 8 USC Section 1373, a federal law that bars cities or states from restricting communications by their employees with the Department of Homeland Security and Immigration and Customs Enforcement (ICE) about the immigration or citizenship status of individuals targeted by these federal agencies.

2. Allow DHS officials access into any detention facility to determine the immigration status of any aliens being held.

3. Give DHS 48 hours’ notice before a jail or prison releases a person when DHS has sent over a detention request, so the feds can arrange to take custody of the alien after he or she is released.

The Los Angeles case addresses only the second and third conditions. But, like every other federal court that has reviewed the administration’s attempt to impose new conditions on the Byrne Grants, the Ninth Circuit struck down the conditions because “none of DOJ’s proffered bases for statutory authority gives the Attorney General or the Assistant AG the power to impose the notice and access conditions.” The conditions were not authorized by Congress, and therefore the president cannot impose them.

This latest ruling is nonetheless notable for two reasons. First, the opinion was authored by Judge Sandra Ikuta, a Republican George W. Bush appointee, and joined by fellow Bush appointee Judge Jay Bybee, often considered one of the most conservative judges sitting on any federal appellate court.

Some liberals have even called for Bybee’s impeachment because of his role in drafting the notorious “torture memos” in the Bush administration, which—among other things—advocated an extremely broad interpretation of executive power.  If your claims of executive authority are too broad to satisfy Judge Bybee, you may want to rethink them.  Yet such is the sweeping nature of the Trump administration’s assertions of executive power over immigration, that this is not the first time that Bybee ruled against them in a significant immigration-related case.

That said, it is not particularly surprising to see conservative judges ruling against the Trump Administration in a sanctuary city case. The “blue” jurisdictions bringing these lawsuits are relying on federalism principles long advocated by conservatives and enshrined in Supreme Court decisions authored by conservative justices such as Samuel Alito and the late Antonin Scalia. In previous sanctuary cases, conservative and liberal judges have largely ruled the same way—against the administration—with only very rare exceptions.

The second somewhat novel aspect of this case is Judge Kim Wardlaw’s concurring opinion, expressing the concern that the majority, though rejecting the two conditions, nonetheless gives the executive too much leeway:

I concur with the majority to the extent it holds that the challenged immigration conditions were not authorized by Congress, and are thus unlawful. But once the
majority concluded that the challenged notice and access conditions are not lawful “special conditions” or “priority purposes” and were thus beyond the powers granted by
Congress to the Department of Justice, it should have stopped, as in full stop. Everything else the majority writes about 34 U.S.C. § 10102(a)(6) is “unnecessary to the decision
in the case and [is] therefore not precedential.” Cetacean Cmty. v. Bush, 386 F.3d 1169, 1173 (9th Cir. 2004)….. In other words, the rest of the asides cast by the majority are dicta. In dicta, the majority finds vague, unidentified powers bestowed upon the DOJ in an illustrative 2006 amendment to a “duties and functions” statute in a different subchapter of the Act that established the Byrne JAG program. See Violence Against
Women and Department of Justice Reauthorization Act of 2005, Pub. L. No. 109-162, 119 Stat. 2960 (2006). This putative power grab not only unnecessarily portends a circuit
split, its analysis also stands contrary to every other court to have addressed the issue in a reasoned opinion….

[I]n dicta, unnecessary to its holding, the majority seems to adopt the DOJ’s “independent power” construction of § 10102(a)(6), writing in passing that “the Attorney
General and the Assistant [Attorney General for the Office of Justice Programs] through delegation have the authority to impose special conditions on all grants and determine priority purposes for formula grants, as those terms are properly
circumscribed.”

Not surprisingly, the majority takes a different view, and argues that their interpretation of the discretion given to the executive is “narrow”and that Wardlaw has set up a “strawman” argument:

Because we interpret the terms “special conditions” and “priority purposes” narrowly, we agree with our sister circuits that § 10102(a)(6) does not give the Assistant AG broad
authority to impose any condition it chooses on a Byrne JAG award….

In opposition to our interpretation of § 10102(a)(6), the concurrence constructs a strawman argument. It ignores our actual interpretation of § 10102(a)(6), and instead accuses us of adopting a “sweeping characterization” of DOJ’s authority, Concurrence at 44, that allows the “essentially limitless” imposition of any conditions desired, Concurrence at 44–45…. Based on this strawman argument, the concurrence then accuses us of creating a split with our sister circuits, which have rejected
such a broad interpretation…..

While the concurrence has an easy time battering its strawman, the concurrence fails to explain how our actual ruling, that DOJ has the limited authority to impose special
conditions designed to meet needs for carrying out the Byrne JAG program, could abrogate or “subvert” Byrne JAG’s funding scheme….

To fully understand the dispute between the majority and concurring opinions, you will likely have to read the relevant sections of both opinions. The issues are not easily summarized in a blog post. But my bottom line is that the majority’s position does indeed interpret DOJ’s power “narrowly,” though Judge Wardlaw may well be justified in arguing that it should be interpreted even more narrowly still.

While the issues in this and other sanctuary cases may sometimes seem arcane, they have broader implications for federalism that go far beyond the specific issues at stake. If the administration can exploit vague statutory language like “special conditions” and “priority purposes” to impose all kinds of new conditions on recipients of federal grants—without any specific authorization by Congress, the president could use this power to pressure state and local governments to do his bidding on a wide range of issues.

The Byrne Grant cases are just one of several fronts in the ongoing legal battle over federalism and sanctuary cities. I provide a fairly complete overview in this recent Texas Law Review article, though it unavoidably omits a few developments that have occurred since it was published a few months ago. Most recently, the Trump administration has sought Supreme Court review of one of the issues in its challenge to California’s “sanctuary state” law.

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