Response to The Lost History of the “Universal” Injunction

Professor Mila Sohoni is the author of a string of significant articles on administrative law, and two of her forthcoming articles are about national injunctions. One of these is The Lost History of the “Universal” Injunction, which is forthcoming in the Harvard Law Review. The article is a vigorous argument that national injunctions are in continuity with the long-established practices of federal courts. The article identifies what can be taken to be the earliest known national injunction—from 1939—and it uncovers a rich history of federal injunctions against the enforcement of state laws at the beginning of the twentieth century. The article also pushes legal scholars working in this area to consider normative questions about the judicial power, the relevance of equity’s history for the present, and the distinction between federal and state statutes for purposes of equity.
Nevertheless, in this piece I want to give critical attention to the argument. In my view, there are four serious problems with The Lost History. In short form: (1) the 1939 injunction that the article identifies was reversed by the Supreme Court and it actually undermines the article’s argument; (2) the article does not adequately contextualize the cases it discusses; (3) equity’s tradition of representative suits is misunderstood; and (4) the argument cannot be squared with central features of American legal history in the 1920s and 30s (i.e., the declaratory judgment controversy and the legal challenges to the New Deal). In my view, these problems together render the article an unreliable guide to the history of equity in the federal courts.
First, it is to Professor Sohoni’s credit that she has uncovered Lukens Steel Co. v. Perkins, which can be understood as pushing the date for the the first known national injunction back to 1939.* The short version of the case is that the D.C. Circuit issued a preliminary injunction prohibiting the enforcement of the Secretary of Labor’s minimum-wage determination for the steel and iron industry across the country; that injunction was reversed by the Supreme Court.
But the article misreads the significance of the case. The article says that the Supreme Court reversed because of a lack of standing and was silent on the scope of the injunction (pp. 5, 66-67, 70—the last cited page of the article says “Perkins did not implicitly limit or reject the injunction that reached beyond the plaintiffs”). But that is not so, and the article’s separation of “standing” from “remedies” is artificial. The reason there is an Article III problem with the national injunction is because one individual plaintiff doesn’t have standing to seek a remedy on behalf of others not in some way before the Court. (This point is made unmistakably plain in Gill v. Whitford, a case The Lost History does not cite.) Indeed, in the opinion of the Court in Perkins, Justice Black explicitly says that the lower court’s “action”—which is its injunction—”goes beyond any controversy that might have existed between the complaining companies and the Government officials” (quoted on p. 65–all cites are to the draft of September 23, 2019). When Justice Black’s paragraph is set out in full, it is hard to miss the Court’s emphasis on the remarkable breadth of the injunction and its sense of surprise at the lower court’s temerity:
“In our judgment the action of the Court of Appeals for the District of Columbia goes beyond any controversy that might have existed between the complaining companies and the Government officials. The benefits of its injunction, and of that ordered by it, were not limited to the potential bidders in the ‘locality’, however construed, in which the respondents do business. All Government officials with duties to perform under the Public Contracts Act have been restrained from applying the wage determination of the Secretary to bidders throughout the Nation who were not parties to any proceeding, who were not before the court and who had sought no relief.”
310 U.S. at 123. All of that was worthy of remark to the Court as it reversed the injunction 8-1. Indeed, at the start of the opinion of the Court, Justice Black framed the entire question in terms of whether the injunction was inappropriately overbroad:
“We must, therefore, decide whether a Federal court, upon complaint of individual iron and steel manufacturers, may restrain the Secretary and officials who do the Government’s purchasing from carrying out an administrative wage determination by the Secretary, not merely as applied to parties before the Court, but as to all other manufacturers in this entire nation-wide industry.”
Id. at 118; see also id. at 120-121 (noting yet again that the plaintiffs “did not merely pray relief for themselves against the Secretary’s wage determination but insisted that all these Government officials be restrained from requiring the statutory stipulation as to minimum wages in contracts with any other steel and iron manufacturers throughout the United States,” and that the district court “declined to interfere so sweepingly with the administration of the Act”). This is all in plain sight in the opinion of the Court. In still another part of the opinion Black even quotes from Justice Sutherland’s opinion in Massachusetts v. Mellon (companion case to Frothingham v. Mellon), to the effect that “a suit of this character cannot be maintained.” It is true that Black doesn’t put this under the rubric of “scope of the injunction,” but rather the fundamental relationship of judicial power to the political branches. So did Frothingham. We cannot understand the problem of the national injunction, and we cannot understand older cases like Frothingham and Perkins, if we treat “standing,” “judicial power,” “equity,” and “remedies” as separate boxes. They are reinforcing and interrelated concepts (again, as the unanimous Court spells out in Gill v. Whitford). ‘Tis “murder to dissect.”
In fact, the striking thing about Perkins is how much it confirms the previously recognized timeline for the development of the national injunction. In 1940 the Supreme Court reversed an injunction that went beyond the “controversy” of the parties. The wide-ranging historical investigation that is reflected in the article has failed to show a single non-reversed national injunction before 1963.
Second, there is a pattern of incomplete contextualization for the cases that are presented. Now I have not yet explored the history of each case presented in the article, because doing so requires scrutiny not only of the opinions but of the record. There can be a stray line in a case involving an injunction—a line that looks to us now like vindication of a national injunction—yet such a reading will become impossible when set against the larger procedural background. An example of this that I discuss in Multiple Chancellors is Panama Refining Co. v. Ryan (see pp. 433-434 & n.87). But where I am familiar with the background of the cases discussed, I find a tendency to highlight the stray line and not to place it in context.
Let me give one example. The article relies on West Virginia v. Barnette as a case where the Supreme Court endorsed an injunction that prohibited the enforcement of a law not merely against what Sohoni calls “the plaintiff class.” The article relies on this case as “establish[ing]” that the Supreme Court did not have any qualms about the scope of the injunction in Perkins (p. 70; see also pp. 5, 62, 71). And it is true that the injunction affirmed in Barnette prohibited enforcement of the state law against “the children of the plaintiffs, or any other children having religious scruples against such action” (i.e., the flag salute). See Final Decree, in Transcript of Re cord, West Virginia State Board of Education v. Barnette, No. 591, Supreme Court of the United States, October Term, 1942, at 46. But what the plaintiffs sought was an injunction protecting the children of Jehovah’s Witnesses. See First Amended Complaint, in Transcript of Record, at 15. It is not at all clear that the three-judge district court granting the injunction was thinking of “children having religious scruples against the flag salute” as a broader set than “children of Jehovah’s Witnesses”—and that group would have a claim analogous to the bill of peace. See id. at 10 (invoking as heads of equitable jurisdiction “[no] adequate remedy at law” and “multiplicity of suits”). (Side note: in the case Barnette overruled, the injunction requested from and given by the district court was plaintiff-protective. See Gobitis v. Minersville School District, 24 F. Supp. 271, 272, 275 (E.D. Pa. 1938).)) In short, set against the complaint, the bill of peace, and equity’s tradition of representative suits (discussed more below), this looks like what we would now call a class action for all Jehovah’s Witness school children in West Virginia. That is more plausible than saying the court rendered a “universal injunction.” Moreover, the injunction ran only as to a defined group, not universally to everyone in the state. But none of this is presented in the article, and the reader is given the impression that between the “any other children” phrase and the Supreme Court’s silence about remedies, the case establishes that as of 1943 the Supreme Court had no problem with universal injunctions.
Another illustration: the article seems to characterize Lewis Publishing, in 1913, as the first known national injunction (p. 23), a case in which “the plaintiffs . . . were able to win an injunction barring the enforcement of the new federal law against anyone until the merits had been decided—much as a nationwide universal preliminary injunction does today” (p. 26). What is the foundation on which this striking claim rests? It is based on what the article refers to as “a brief per curiam opinion” (p. 26). How brief? Quite brief. Here is the entirety of the “opinion”: “Granted.” And the striking singularity of this reading becomes all the more clear when this one-word non-opinion is read in context: first the publisher plaintiffs did not seek an injunction protecting other newspaper publishers, then the government (according to the plaintiffs) agreed that it would not apply the challenged provision to any publishers during the pendency of the suit, then the government (according to the plaintiffs) went back on its word, and finally the SG made no response to these claims by the plaintiffs. (The preceding points are all in the article, but they are given no interpretive significance.) Now it could be that lurking in the white spaces between the letters in the word “Granted” we have an intuition by the Supreme Court that national injunctions are A-OK. Alternatively, and more plausibly, the Court could have been making no new law and treating this as a matter of estoppel: the government didn’t need to make the representation that it wouldn’t enforce the provision against newspapers during the pendency of the suit, but once it did, it should be held to it. If the article placed Lewis Publishing in its legal and historical setting, these are the kinds of ambiguities and irresolutions that would need to be surfaced. In short, what does Lewis Publishing show about whether “in the period from 1890 to 1943, the law-declaration model animated and guided the actions of federal courts of all stripes” (p. 8)? Exactly nothing.
Third, there is a misreading of equity’s tradition of representative suits—a misreading that impairs the conclusions that the article tries to draw from the state-law cases as well as from the federal-law cases. It is widely recognized that the class action was a creature of equity, a descendant of the bill of peace and more generally of representative suits in equity. Here is Wright & Miller:
Class suits long have been a part of American jurisprudence. From an early date they were authorized in federal courts by the equity rules for suits involving members of a class so numerous that it was impracticable to join them all as parties. Justice Story, building upon the doctrines developed by Lord Eldon for the English courts, generally is credited with having formulated the standards in this country. His analysis was adopted in Smith v. Swormstedt, in which the Supreme Court allowed a representative suit to be brought on behalf of all the preachers in the Methodist Episcopal Church South seeking a declaration of the respective rights of each sectional group of the Methodist Episcopal Church of the United States to funds originally belonging to the entire church.
§ 1751 History and Purpose of the Class Action, 7A Fed. Prac. & Proc. Civ. § 1751 (3d ed.). The Lost History concedes, as it must, that Equity Rule 38 was at least a “progenitor” of the modern class action (p. 42). That rule, adopted in 1912 and based on the previous federal equity rule on the subject, said: “When the question is one of common or general interest to many persons constituting a class so numerous as to make it impracticable to bring them all before the court, one or more may sue or defend for the whole.” But the article tries to escape this close connection between the equity representative suit (growing out of the bill of peace) and the class action. The article correctly identifies differences between the tradition of representative suits in equity and the modern class action—no talk of “certification” in the old cases, no requirement to go beyond certain allegations in the complaint. The article doesn’t see the tradition of representative suits in equity as represented now by the class action; it calls them simply “cases in which plaintiffs obtained relief on behalf of others well before the modern-day class certification procedure came to be adopted” (p. 14; see also p. 7).
What exactly is the point of all these differentiations? It is the article’s conclusion that “these cases enjoining the enforcement of state law look a lot more like modern-day universal injunction cases than they do like modern-day class actions” (p. 55). But noting a few requirements in modern day class actions that don’t exist in their older equity antecedents only works if the argument is something like this: the class action is a newly built thing, circa 1966, and it offers one way plaintiffs may proceed, but they may also continue to proceed with a non-FRCP-based equitable suit on behalf of all similarly situated parties, and that is what the recent outpouring of national injunction cases really is. If true, very interesting. We should expect courts to start putting flesh on the bones of this newly resurrected non-FRCP tradition of equitable representative suits; we could bring back all of Joseph Story’s writing on necessary parties in equity; we could cite Smith v. Swormstedt and Supreme Tribe of Ben Hur to show that if a suit for a national injunction fails, everyone who it would have benefitted is bound by the defeat. I suspect for some reason—actually, for many reasons—that the public interest litigators and state AGs who are currently seeking and obtaining national injunctions will not see this as a rosy opportunity.
Let me give a specific instance of how the article fails to appreciate fully the equity tradition of representative suits. One of the article’s central examples is Hill v. Wallace, about which the article says: “Though it was not formally nationwide, the Hill interim injunction appears to have effectively hit ‘pause’ on the coercive enforcement of the new federal statute throughout the country—exactly as many modern nationwide universal preliminary injunctions do.” On no understanding is this remotely a national injunction—as the article says, the injunction ran against the Chicago Board of Trade, the local federal collector of internal revenue, and the U.S. attorney for the Northern District of Illinois (p. 29). But the more basic reason this case is not an antecedent for “universal” or “national” injunction is that this is a thoroughly unremarkable instance of an American bill of peace brought by some shareholders of a corporation on behalf of all of them. This was conventional equity at the time. Justice Sutherland’s opinion for the Court in Frothingham v. Mellon explicitly singled out such suits as within equity’s power, even as he was distinguishing them from the relief requested by the plaintiff in that case (which I consider a national injunction). The article gives the following account of why Hill v. Wallace shouldn’t be considered a garden variety representative suit: “The eight members’ suit against the CBoT can be (and was) conceptualized as a stockholder’s suit, but with respect to the federal government, that frame is obviously inapt. On the latter score, the suit was simply an action to protect each of the 1,600 members of the CBoT from the record-keeping, tax, and criminal provisions of a bothersome new federal statute through a representative suit by some of their number.” I cannot follow the argument. “Obviously inapt” is conclusory. “Simply” seems to suggest some kind of idea that it can’t be bill of peace if—if what exactly? There is nothing at all “odd” (p. 30, n. 81) about how Hill fits with the reading of Frothingham offered in Multiple Chancellors. It is as simple as this: Hill is a representative suit by some of the shareholders on behalf of all of the shareholders; Frothingham says equity can do that.
If we think about Hill v. Wallace not with anachronism, but with an internal perspective on contemporaneous equity, it is completely unsurprising as an exercise of judicial power. That is why the government did not object (p. 27). There were representative suits in equity; there was a line of authority (not uncontradicted) that those suits could give decrees that settled the rights of people who were not in the courtroom; but the theory was one of representation in equity in which the rights and interests of those not present were represented by those who were. We have a modern incarnation of that tradition: it is the class action. Failure to recognize that continuity of organic development is what leads the article to find “universal injunctions” against state laws—but these are better seen as ordinary representative suits in equity, analogous to class actions today. They were uncontroversial: not because “universal injunctions” were uncontroversial, but because representative suits in equity were uncontroversial.
Fourth, the article fails an important test of any legal intellectual history: take the proposed conclusions, assume they’re true, and ask how the relevant actors would therefore have behaved. Do they act like they should have acted with these views? Two of the big developments of the 1920s and 1930s would be quite astounding if the article’s account were sound. One is the enormous controversy over the declaratory judgment, much of which centered on the effect of a court’s judgment on non-parties. This is why the assimilation of the declaratory judgment to Article III required such a strong focus on party-specific resolution (e.g., Haworth). The other is the huge number of suits challenging New Deal legislation, many successful, apparently without any national injunctions being granted. (See Multiple Chancellors.) The article’s explanation for why there weren’t more national injunctions in the first half of the twentieth century is the government’s willingness not to enforce a law against anyone during the pendency of a suit challenging the law (pp. 35-36). But that explanation will not work for the New Deal, where the Roosevelt administration strenuously resisted the suits and by official policy continued to apply challenged laws in other districts. (Again, see Multiple Chancellors.) If the article is right, the declaratory judgment should have been uncontroversial and the New Deal challenges should have been a hotbed of “universal injunctions.”
The Lost History explores the fascinating past of federal injunctions against the enforcement of state laws. And there are a number of important questions the article pushes us to consider. One is federal and state similarity or difference (perhaps too state and municipal similarity or difference). Another is the normative question of whether the class action with its developments over the last fifty years strikes a better balance than the old representative suits of equity. Yet another is important questions about how the past of the equity tradition should relate to the present, especially in U.S. public law. The article also serves as a valuable reminder to look to federal injunction practice with respect to state courts. As a work of historical scholarship, however, the article’s failure to understand the continuity between the representative suit in equity and the class action, its insufficient contextualization of the cases, and its inversion of the significance of Perkins represent a missed opportunity. I say this with regret, because there is a great need for sound historical work on equity in the federal courts.

 

* There is a reasonable argument that the injunction in Perkins was actually not a national injunction, or at least not one that was self-consciously intended by the court to protect non-parties. Its scope was broad, but it can be thought of as entirely for the protection of the plaintiffs themselves. Critically, the plaintiffs’ attorneys argued that only an injunction covering the entire industry would protect them: If the injunction were to cover only the plaintiffs themselves, allowing the Secretary of Labor to apply the minimum-wage requirement to all competitors, there would be short run competitive advantage for the plaintiff firms, but they feared that any government contracts they procured would later be challengeable as illegally granted under the competitive-bidding rules. (See pp. 350-351 of the Record in the Supreme Court.) If the argument is accepted, as it seems to have been by the court of appeals, the injunction would be broad but it would actually comply with the proposed standard in Multiple Chancellors: “An equitable remedy is flexible, and its scope is not automatic. . . . But there should be no term or breadth that is for the protection of nonparties rather than for the protection of the plaintiff” (Multiple Chancellors, at 471). The injunction was still too broad—which explains the Court’s surprise at its scope—but it was too broad in its attempt to protect the plaintiffs, not too broad in an attempt to protect nonparties. It was in this respect unlike the national injunctions that have dominated executive branch-judicial branch relations for the last five years.
[Cross-posted at the Yale Journal on Regulation’s Notice & Comment blog.]

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Mish: “Escape Illinois: Get The Hell Out Now, We Are”

Mish: “Escape Illinois: Get The Hell Out Now, We Are”

Submitted by Mish Shedlock of MishTalk

Illinois is second to Alaska in net outbound migration. Many move out, but few move in.

Behind the Chatter

Consider the Chicago Tribune article on the ‘Illinois Exodus.’ An “Escaping Illinois” Facebook group has more than 39,000 followers. One man even wrote a song called “Goodbye Illinois,” lamenting the state’s taxes and political corruption and expressing his desire to leave.

The state has been struggling to keep residents for decades, with more people leaving than arriving since at least 1970. But it’s only in the last few years that the state’s population and that of its largest and most important economic engine, Chicago, have slipped.

Outward Bound

In 2018, the state had an estimated net migration loss of 6.5 people for every 1,000 residents, according to the most recent census data. Five years earlier, the net loss was about 3 people per 1,000 residents.

The latest number puts Illinois 49th out of the nation’s 50 states on net migration loss. Only Alaska had a worse rate, with a loss of 11 people per 1,000 residents.

Population decline is also happening in more parts of the state. From 1990 to 2000, 68 of Illinois’ 102 counties gained population. But so far this decade, only nine counties, including Kane, Will and DuPage in the Chicago area, have added residents.

Goodbye Illinois

“Well, they’re taxing this and they’re taxing that, pretty soon there ain’t nothin’ left,” Raudys sings as he strums a guitar. “Pension fund is so well run, worst in the nation: well done! I’d really like to stay, but I just can’t pay and pay.”

Absurd Census Questions

The Census Bureau conducts a survey every month that includes questions about why a person changed residences in the previous year. The survey offers a range of possible answers, from foreclosure/eviction to change of climate to “wanted better neighborhood/less crime.”

The Census Bureau does not ask about income taxes, property taxes, or even taxes in general.

Nor does it ask about business climate or any of the key reasons businesses leave. And if businesses leave, the workers follow or are forced to get another job.

Tax Load

The Illinois Policy Institute reports [Despite taxing both sales and income, Illinois has higher property taxes than every single state that does not charge an income tax](Despite taxing both sales and income, Illinois has higher property taxes than every single state that does not charge an income tax.).

Property Tax on Median Home Illinois vs Indiana

Illinois vs Indiana Migration

Nineteen New Taxes

The above article was from 2017. On May 24, 2019, the Illinois Policy Institute commented Governor Pritzker’s 19 Different Tax and Fee Hikes Total $6.9 Billion. That is on top of new “home rule” taxes in Chicago and Cook County.

On July 1, the state doubled the Illinois’ motor fuel tax to 38 cents from 19 cents per gallon giving Illinois the second highest gas tax in the nation.

Home Rule Expands

Chicago’s “Netflix tax” expands statewide, with the state charging a 7% tax on users of streaming services, as well as cable and satellite customers. None of these services were taxed at the state level.

Other tax hikes include alcohol, property transfer taxes, parking taxes, and ride-sharing (Uber tax). The new vehicle registration tax jumps to $199, the third highest in the nation, and electric vehicle registration goes to $250 every year to pay for the gas taxes that electric vehicle owners should be paying but aren’t.

Tax Sinkhole

Where is the money going? Governor Pritzker says it to fund infrastructure. That’s a huge lie. Nearly all of it will go to teachers unions and police unions as Illinois pensions are among the worst funded in the nation.

Huge Income Tax Hikes in the Works

The Illinois legislature recently approved a constitutional amendment to allow “progressive” income taxes. The Illinois Policy Institute comments on what to expect.

The last state to implement a plan similar to Pritzker’s was Connecticut in 1996. State lawmakers made the same promises of middle-class tax cuts, property tax relief and increased spending on social services. Those promises were broken. In fact, the typical Connecticut family has seen a 13% hike in their income tax rates since the implementation of Connecticut’s progressive tax, property tax burdens increased 35%, and the poverty rate increased 47% during the 10 years following the passage of their progressive tax.

Get the H Out

The alleged “fair” tax is anything but. And it will not stop here.

Finally! Out of this Progressive Socialist Hellhole

We are out of here. Can’t take it anymore.

We pay close to $15,000 a year in property taxes on a home worth about $400,000.

Firm plans in place to move to Southern Utah in 2020.

Why Southern Utah?

  • North Rim Grand Canyon, Bryce, Glen Canyon, Great Basin National Parks just 2-3 hours away
  • Zion National Park about 40 minutes away
  • Capital Reef National 3 hours away
  • Death Valley National Park 4 hours
  • Arches and Caynonlands National Parks 5 hours
  • Joshua Tree National Park 6 hours
  • Mono Lake 6.5 hours
  • Many excellent state parks nearby within an hour
  • Las Vegas Airport about 2 hours away with cheap shuttles

In short, lower taxes, higher quality of life, escape from absurd property taxes. Other states have lower property taxes or income taxes, but those national parks are a huge photo attraction.


Tyler Durden

Sun, 10/06/2019 – 13:04

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Response to The Lost History of the “Universal” Injunction

Professor Mila Sohoni is the author of a string of significant articles on administrative law, and two of her forthcoming articles are about national injunctions. One of these is The Lost History of the “Universal” Injunction, which is forthcoming in the Harvard Law Review. The article is a vigorous argument that national injunctions are in continuity with the long-established practices of federal courts. The article identifies what can be taken to be the earliest known national injunction—from 1939—and it uncovers a rich history of federal injunctions against the enforcement of state laws at the beginning of the twentieth century. The article also pushes legal scholars working in this area to consider normative questions about the judicial power, the relevance of equity’s history for the present, and the distinction between federal and state statutes for purposes of equity.
Nevertheless, in this piece I want to give critical attention to the argument. In my view, there are four serious problems with The Lost History. In short form: (1) the 1939 injunction that the article identifies was reversed by the Supreme Court and it actually undermines the article’s argument; (2) the article does not adequately contextualize the cases it discusses; (3) equity’s tradition of representative suits is misunderstood; and (4) the argument cannot be squared with central features of American legal history in the 1920s and 30s (i.e., the declaratory judgment controversy and the legal challenges to the New Deal). In my view, these problems together render the article an unreliable guide to the history of equity in the federal courts.
First, it is to Professor Sohoni’s credit that she has uncovered Lukens Steel Co. v. Perkins, which can be understood as pushing the date for the the first known national injunction back to 1939.* The short version of the case is that the D.C. Circuit issued a preliminary injunction prohibiting the enforcement of the Secretary of Labor’s minimum-wage determination for the steel and iron industry across the country; that injunction was reversed by the Supreme Court.
But the article misreads the significance of the case. The article says that the Supreme Court reversed because of a lack of standing and was silent on the scope of the injunction (pp. 5, 66-67, 70—the last cited page of the article says “Perkins did not implicitly limit or reject the injunction that reached beyond the plaintiffs”). But that is not so, and the article’s separation of “standing” from “remedies” is artificial. The reason there is an Article III problem with the national injunction is because one individual plaintiff doesn’t have standing to seek a remedy on behalf of others not in some way before the Court. (This point is made unmistakably plain in Gill v. Whitford, a case The Lost History does not cite.) Indeed, in the opinion of the Court in Perkins, Justice Black explicitly says that the lower court’s “action”—which is its injunction—”goes beyond any controversy that might have existed between the complaining companies and the Government officials” (quoted on p. 65–all cites are to the draft of September 23, 2019). When Justice Black’s paragraph is set out in full, it is hard to miss the Court’s emphasis on the remarkable breadth of the injunction and its sense of surprise at the lower court’s temerity:
“In our judgment the action of the Court of Appeals for the District of Columbia goes beyond any controversy that might have existed between the complaining companies and the Government officials. The benefits of its injunction, and of that ordered by it, were not limited to the potential bidders in the ‘locality’, however construed, in which the respondents do business. All Government officials with duties to perform under the Public Contracts Act have been restrained from applying the wage determination of the Secretary to bidders throughout the Nation who were not parties to any proceeding, who were not before the court and who had sought no relief.”
310 U.S. at 123. All of that was worthy of remark to the Court as it reversed the injunction 8-1. Indeed, at the start of the opinion of the Court, Justice Black framed the entire question in terms of whether the injunction was inappropriately overbroad:
“We must, therefore, decide whether a Federal court, upon complaint of individual iron and steel manufacturers, may restrain the Secretary and officials who do the Government’s purchasing from carrying out an administrative wage determination by the Secretary, not merely as applied to parties before the Court, but as to all other manufacturers in this entire nation-wide industry.”
Id. at 118; see also id. at 120-121 (noting yet again that the plaintiffs “did not merely pray relief for themselves against the Secretary’s wage determination but insisted that all these Government officials be restrained from requiring the statutory stipulation as to minimum wages in contracts with any other steel and iron manufacturers throughout the United States,” and that the district court “declined to interfere so sweepingly with the administration of the Act”). This is all in plain sight in the opinion of the Court. In still another part of the opinion Black even quotes from Justice Sutherland’s opinion in Massachusetts v. Mellon (companion case to Frothingham v. Mellon), to the effect that “a suit of this character cannot be maintained.” It is true that Black doesn’t put this under the rubric of “scope of the injunction,” but rather the fundamental relationship of judicial power to the political branches. So did Frothingham. We cannot understand the problem of the national injunction, and we cannot understand older cases like Frothingham and Perkins, if we treat “standing,” “judicial power,” “equity,” and “remedies” as separate boxes. They are reinforcing and interrelated concepts (again, as the unanimous Court spells out in Gill v. Whitford). ‘Tis “murder to dissect.”
In fact, the striking thing about Perkins is how much it confirms the previously recognized timeline for the development of the national injunction. In 1940 the Supreme Court reversed an injunction that went beyond the “controversy” of the parties. The wide-ranging historical investigation that is reflected in the article has failed to show a single non-reversed national injunction before 1963.
Second, there is a pattern of incomplete contextualization for the cases that are presented. Now I have not yet explored the history of each case presented in the article, because doing so requires scrutiny not only of the opinions but of the record. There can be a stray line in a case involving an injunction—a line that looks to us now like vindication of a national injunction—yet such a reading will become impossible when set against the larger procedural background. An example of this that I discuss in Multiple Chancellors is Panama Refining Co. v. Ryan (see pp. 433-434 & n.87). But where I am familiar with the background of the cases discussed, I find a tendency to highlight the stray line and not to place it in context.
Let me give one example. The article relies on West Virginia v. Barnette as a case where the Supreme Court endorsed an injunction that prohibited the enforcement of a law not merely against what Sohoni calls “the plaintiff class.” The article relies on this case as “establish[ing]” that the Supreme Court did not have any qualms about the scope of the injunction in Perkins (p. 70; see also pp. 5, 62, 71). And it is true that the injunction affirmed in Barnette prohibited enforcement of the state law against “the children of the plaintiffs, or any other children having religious scruples against such action” (i.e., the flag salute). See Final Decree, in Transcript of Re cord, West Virginia State Board of Education v. Barnette, No. 591, Supreme Court of the United States, October Term, 1942, at 46. But what the plaintiffs sought was an injunction protecting the children of Jehovah’s Witnesses. See First Amended Complaint, in Transcript of Record, at 15. It is not at all clear that the three-judge district court granting the injunction was thinking of “children having religious scruples against the flag salute” as a broader set than “children of Jehovah’s Witnesses”—and that group would have a claim analogous to the bill of peace. See id. at 10 (invoking as heads of equitable jurisdiction “[no] adequate remedy at law” and “multiplicity of suits”). (Side note: in the case Barnette overruled, the injunction requested from and given by the district court was plaintiff-protective. See Gobitis v. Minersville School District, 24 F. Supp. 271, 272, 275 (E.D. Pa. 1938).)) In short, set against the complaint, the bill of peace, and equity’s tradition of representative suits (discussed more below), this looks like what we would now call a class action for all Jehovah’s Witness school children in West Virginia. That is more plausible than saying the court rendered a “universal injunction.” Moreover, the injunction ran only as to a defined group, not universally to everyone in the state. But none of this is presented in the article, and the reader is given the impression that between the “any other children” phrase and the Supreme Court’s silence about remedies, the case establishes that as of 1943 the Supreme Court had no problem with universal injunctions.
Another illustration: the article seems to characterize Lewis Publishing, in 1913, as the first known national injunction (p. 23), a case in which “the plaintiffs . . . were able to win an injunction barring the enforcement of the new federal law against anyone until the merits had been decided—much as a nationwide universal preliminary injunction does today” (p. 26). What is the foundation on which this striking claim rests? It is based on what the article refers to as “a brief per curiam opinion” (p. 26). How brief? Quite brief. Here is the entirety of the “opinion”: “Granted.” And the striking singularity of this reading becomes all the more clear when this one-word non-opinion is read in context: first the publisher plaintiffs did not seek an injunction protecting other newspaper publishers, then the government (according to the plaintiffs) agreed that it would not apply the challenged provision to any publishers during the pendency of the suit, then the government (according to the plaintiffs) went back on its word, and finally the SG made no response to these claims by the plaintiffs. (The preceding points are all in the article, but they are given no interpretive significance.) Now it could be that lurking in the white spaces between the letters in the word “Granted” we have an intuition by the Supreme Court that national injunctions are A-OK. Alternatively, and more plausibly, the Court could have been making no new law and treating this as a matter of estoppel: the government didn’t need to make the representation that it wouldn’t enforce the provision against newspapers during the pendency of the suit, but once it did, it should be held to it. If the article placed Lewis Publishing in its legal and historical setting, these are the kinds of ambiguities and irresolutions that would need to be surfaced. In short, what does Lewis Publishing show about whether “in the period from 1890 to 1943, the law-declaration model animated and guided the actions of federal courts of all stripes” (p. 8)? Exactly nothing.
Third, there is a misreading of equity’s tradition of representative suits—a misreading that impairs the conclusions that the article tries to draw from the state-law cases as well as from the federal-law cases. It is widely recognized that the class action was a creature of equity, a descendant of the bill of peace and more generally of representative suits in equity. Here is Wright & Miller:
Class suits long have been a part of American jurisprudence. From an early date they were authorized in federal courts by the equity rules for suits involving members of a class so numerous that it was impracticable to join them all as parties. Justice Story, building upon the doctrines developed by Lord Eldon for the English courts, generally is credited with having formulated the standards in this country. His analysis was adopted in Smith v. Swormstedt, in which the Supreme Court allowed a representative suit to be brought on behalf of all the preachers in the Methodist Episcopal Church South seeking a declaration of the respective rights of each sectional group of the Methodist Episcopal Church of the United States to funds originally belonging to the entire church.
§ 1751 History and Purpose of the Class Action, 7A Fed. Prac. & Proc. Civ. § 1751 (3d ed.). The Lost History concedes, as it must, that Equity Rule 38 was at least a “progenitor” of the modern class action (p. 42). That rule, adopted in 1912 and based on the previous federal equity rule on the subject, said: “When the question is one of common or general interest to many persons constituting a class so numerous as to make it impracticable to bring them all before the court, one or more may sue or defend for the whole.” But the article tries to escape this close connection between the equity representative suit (growing out of the bill of peace) and the class action. The article correctly identifies differences between the tradition of representative suits in equity and the modern class action—no talk of “certification” in the old cases, no requirement to go beyond certain allegations in the complaint. The article doesn’t see the tradition of representative suits in equity as represented now by the class action; it calls them simply “cases in which plaintiffs obtained relief on behalf of others well before the modern-day class certification procedure came to be adopted” (p. 14; see also p. 7).
What exactly is the point of all these differentiations? It is the article’s conclusion that “these cases enjoining the enforcement of state law look a lot more like modern-day universal injunction cases than they do like modern-day class actions” (p. 55). But noting a few requirements in modern day class actions that don’t exist in their older equity antecedents only works if the argument is something like this: the class action is a newly built thing, circa 1966, and it offers one way plaintiffs may proceed, but they may also continue to proceed with a non-FRCP-based equitable suit on behalf of all similarly situated parties, and that is what the recent outpouring of national injunction cases really is. If true, very interesting. We should expect courts to start putting flesh on the bones of this newly resurrected non-FRCP tradition of equitable representative suits; we could bring back all of Joseph Story’s writing on necessary parties in equity; we could cite Smith v. Swormstedt and Supreme Tribe of Ben Hur to show that if a suit for a national injunction fails, everyone who it would have benefitted is bound by the defeat. I suspect for some reason—actually, for many reasons—that the public interest litigators and state AGs who are currently seeking and obtaining national injunctions will not see this as a rosy opportunity.
Let me give a specific instance of how the article fails to appreciate fully the equity tradition of representative suits. One of the article’s central examples is Hill v. Wallace, about which the article says: “Though it was not formally nationwide, the Hill interim injunction appears to have effectively hit ‘pause’ on the coercive enforcement of the new federal statute throughout the country—exactly as many modern nationwide universal preliminary injunctions do.” On no understanding is this remotely a national injunction—as the article says, the injunction ran against the Chicago Board of Trade, the local federal collector of internal revenue, and the U.S. attorney for the Northern District of Illinois (p. 29). But the more basic problem with calling this a national injunction is that this is a thoroughly unremarkable instance of an American bill of peace brought by some shareholders of a corporation on behalf of all of them. This was conventional equity at the time. Justice Sutherland’s opinion for the Court in Frothingham v. Mellon explicitly singled out such suits as within equity’s power, even as he was distinguishing them from the relief requested by the plaintiff in that case (which I consider a national injunction). The article gives the following account of why Hill v. Wallace shouldn’t be considered a garden variety representative suit: “The eight members’ suit against the CBoT can be (and was) conceptualized as a stockholder’s suit, but with respect to the federal government, that frame is obviously inapt. On the latter score, the suit was simply an action to protect each of the 1,600 members of the CBoT from the record-keeping, tax, and criminal provisions of a bothersome new federal statute through a representative suit by some of their number.” I cannot follow the argument. “Obviously inapt” is conclusory. “Simply” seems to suggest some kind of idea that it can’t be bill of peace if—if what exactly? There is nothing at all “odd” (p. 30, n. 81) about how Hill fits with the reading of Frothingham offered in Multiple Chancellors. It is as simple as this: Hill is a representative suit by some of the shareholders on behalf of all of the shareholders; Frothingham says equity can do that.
If we think about Hill v. Wallace not with anachronism, but with an internal perspective on contemporaneous equity, it is completely unsurprising as an exercise of judicial power. That is why the government did not object (p. 27). There were representative suits in equity; there was a line of authority (not uncontradicted) that those suits could give decrees that settled the rights of people who were not in the courtroom; but the theory was one of representation in equity in which the rights and interests of those not present were represented by those who were. We have a modern incarnation of that tradition: it is the class action. Failure to recognize that continuity of organic development is what leads the article to find “universal injunctions” against state laws—but these are better seen as ordinary representative suits in equity, analogous to class actions today. They were uncontroversial: not because “universal injunctions” were uncontroversial, but because representative suits in equity were uncontroversial.
Fourth, the article fails an important test of any legal intellectual history: take the proposed conclusions, assume they’re true, and ask how the relevant actors would therefore have behaved. Do they act like they should have acted with these views? Two of the big developments of the 1920s and 1930s would be quite astounding if the article’s account were sound. One is the enormous controversy over the declaratory judgment, much of which centered on the effect of a court’s judgment on non-parties. This is why the assimilation of the declaratory judgment to Article III required such a strong focus on party-specific resolution (e.g., Haworth). The other is the huge number of suits challenging New Deal legislation, many successful, apparently without any national injunctions being granted. (See Multiple Chancellors.) The article’s explanation for why there weren’t more national injunctions in the first half of the twentieth century is the government’s willingness not to enforce a law against anyone during the pendency of a suit challenging the law (pp. 35-36). But that explanation will not work for the New Deal, where the Roosevelt administration strenuously resisted the suits and by official policy continued to apply challenged laws in other districts. (Again, see Multiple Chancellors.) If the article is right, the declaratory judgment should have been uncontroversial and the New Deal challenges should have been a hotbed of “universal injunctions.”
The Lost History explores the fascinating past of federal injunctions against the enforcement of state laws. And there are a number of important questions the article pushes us to consider. One is federal and state similarity or difference (perhaps too state and municipal similarity or difference). Another is the normative question of whether the class action with its developments over the last fifty years strikes a better balance than the old representative suits of equity. Yet another is important questions about how the past of the equity tradition should relate to the present, especially in U.S. public law. The article also serves as a valuable reminder to look to federal injunction practice with respect to state courts. As a work of historical scholarship, however, the article’s failure to understand the continuity between the representative suit in equity and the class action, its insufficient contextualization of the cases, and its inversion of the significance of Perkins represent a missed opportunity. I say this with regret, because there is a great need for sound historical work on equity in the federal courts.

 

* There is a reasonable argument that the injunction in Perkins was actually not a national injunction, or at least not one that was self-consciously intended by the court to protect non-parties. Its scope was broad, but it can be thought of as entirely for the protection of the plaintiffs themselves. Critically, the plaintiffs’ attorneys argued that only an injunction covering the entire industry would protect them: If the injunction were to cover only the plaintiffs themselves, allowing the Secretary of Labor to apply the minimum-wage requirement to all competitors, there would be short run competitive advantage for the plaintiff firms, but they feared that any government contracts they procured would later be challengeable as illegally granted under the competitive-bidding rules. (See pp. 350-351 of the Record in the Supreme Court.) If the argument is accepted, as it seems to have been by the court of appeals, the injunction would be broad but it would actually comply with the proposed standard in Multiple Chancellors: “An equitable remedy is flexible, and its scope is not automatic. . . . But there should be no term or breadth that is for the protection of nonparties rather than for the protection of the plaintiff” (Multiple Chancellors, at 471). The injunction was still too broad—which explains the Court’s surprise at its scope—but it was too broad in its attempt to protect the plaintiffs, not too broad in an attempt to protect nonparties. It was in this respect unlike the national injunctions that have dominated executive branch-judicial branch relations for the last five years.
[Cross-posted at the Yale Journal on Regulation’s Notice & Comment blog.]

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The Impeachment Inquiry Talking Point

Since the news broke of President Trump’s phone call to the Ukrainian president, Republicans have been scrambling to find an argument that might slow the momentum toward impeachment. The worst possible approach would be for the Republicans to circle the wagons around the president and contend that actually it is a good thing for presidents to use the tools of American foreign policy to advance their personal electoral interests, but some seem willing to run with that argument.

The initial effort to try to stave off impeachment has focused on various procedural complaints, which as often as not have been overtaken by events as President Trump and Rudy Giuliani concede the substance of the revelations. One procedural talking point still on offer is the complaint that the full House has not yet voted on whether to have a formal impeachment inquiry. This is not a serious objection.

House minority leader Kevin McCarthy recently sent a letter to House Speaker Nancy Pelosi requesting that the impeachment inquiry directed at the president be suspended until “transparent and equitable rules and procedures are established to govern the inquiry.” In particular, McCarthy wants a floor vote on the question of authorizing an impeachment inquiry. Republicans expect that at least a few Democrats would find it electorally difficult to cast such a vote, perhaps enough that such a vote would actually fail. Unsurprisingly, Pelosi continues to decline to schedule such a vote.

The Constitution does not require such an authorization vote. The Constitution simply gives the House the sole power of impeachment. The procedures that the House might follow to exercise that power are left to the House itself to determine. Formally, the House need do nothing other than vote on a final resolution of impeachment. The House could take such a vote based on nothing more than press reports or the report of an outside counsel or disciplinary committee. It need not conduct any independent investigation at all.

The articles of impeachment against the president introduced by Representative Al Green in 2017 turned entirely on the president’s public statements and the claim that they had brought the office of the president into “contempt, ridicule, disgrace, and disrepute.” There was nothing more to investigate. Everyone could see what the president had said about Charlottesville and other matters. The members of the House needed only to decide whether they thought such conduct justified impeachment.

There are occasions in which an authorization vote is needed. If the standing rules of the House do not empower a committee to issue subpoenas or if a committee lacked the resources to collect documents and interview witnesses, then the House might need to vote to bolster a committee’s resources so that it could conduct the kind of investigation that might lead to impeachment charges. If the House did not want a standing committee to do the relevant investigation under its preexisting authority, the House might prefer to create a select committee with a different membership and a more narrow mandate. But the modern House already provides adequate resources to its committees to conduct the kind of investigations that might provide the factual basis for an impeachment, and so no additional votes are generally necessary. The House does not currently need such special authorization.

A House impeachment is sometimes analogized to a grand jury indictment, and with good reason. An impeachment launches a process that will result in a trial where a defense can be presented, evidence weighed, and a vote on whether to convict on charges of misconduct can be taken. Like a grand jury, the House has an interest in going through enough of a process that it feels confident that there is a case of misconduct and that the House will be able to present a credible case in the Senate that might win a conviction. Politically, the House might want to lay out the case in public in order to build the political support it might need to justify impeachment and removal. It might want to hear the arguments of the accused in order to help it decide whether a case for removal is justified and whether the case is likely to be persuasive in a Senate trial. But those are pragmatic considerations, not constitutional requirements, and there are circumstances in which the House might think elaborate proceedings are unnecessary or counterproductive.

What matters in the end is whether a majority of the members of the House think that impeachment is justified and are thus willing to vote for articles of impeachment. A majority of the chamber might not know that until an investigation has been concluded and the facts laid on the table. In a reasonable world, it should be possible for politicians to be able to vote to conduct an investigation without knowing where the investigation will lead and how it might conclude, but we do not live in a reasonable world. If a vote on whether to conduct an impeachment inquiry is politically equivalent to a vote on whether to impeach, then we should want House leaders to protect their members from having to cast such a vote prematurely. An inquiry might be justified on the basis of very little, and an inquiry might determine that upon investigation there is smoke and no fire. We should want it to be possible to conduct investigations of misconduct before we know what the conclusion of such an investigation will be, and in our current political environment that probably means that we should want it to be possible to conduct investigations without having to hold prior votes to authorize such investigations. If the House decides to impeach the president, a majority of the members will have to go on record affirming their support for an impeachment. That is enough.

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Bannon Says Concept Of “Deep” State Is ‘Conspiracy Theory For Nutcases’ Because “It’s Right In Your Face”

Bannon Says Concept Of “Deep” State Is ‘Conspiracy Theory For Nutcases’ Because “It’s Right In Your Face”

Former Trump 2016 campaign chair and White House strategist Steve Bannon says that the deep state is a ‘conspiracy theory for nutcases,’ explaining to author James B Stewart “America isn’t Turkey or Egypt.” 

Bannon says that while there is a formidable government bureaucracy in the United States – “there’s nothing ‘deep’ about it,” adding “It’s right in your face.” 

Of course, many define the ‘deep state’ to include a group of powerful, unelected individuals calling shots while their servants carry out their agenda at all levels of government – but perhaps Bannon knows better, having operated on both sides of the curtain. 

Bannon’s comments can be found in Stewart’s upcoming book, Deep State: Trump, the FBI and the Rule of Law by James B Stewart, which will be published on 8 October according to The Guardian, which obtained a copy. 

The claim that the deep state is a ‘conspiracy theory’ flies in the face of White House senior adviser Stephen Miller, who suggested the deep state is behind an impeachment inquiry into President Trump’s request that Ukraine investigate political rival Joe Biden. Last Sunday, Miller told Fox News he knows “the difference between a whistleblower and a deep state operative.” 

On Thursday, Bannon’s former outlet – Breitbart News, published a new essay by Virgil, “the pseudonymous author of the original Deep State series. The title: Lessons of Impeachment, from Watergate to Monicagate to Bidengate” according to The Guardian. 

And so when the New York Times informs us that the whistleblower works for the CIA—the former domain of Trump-hater John Brennan—and is thus “nonpolitical,” well, that’s good for a Virgilian belly laugh. Indeed, when one considers the legal craftsmanship of the report, it’s obvious that the whistleblower had a lot of help in the researching and writing of the document. –Breitbart

According to Virgil, “Yes, this is the deep state in action, and it’s out for blood.” 


Tyler Durden

Sun, 10/06/2019 – 12:30

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Politics

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The Impeachment Inquiry Talking Point

Since the news broke of President Trump’s phone call to the Ukrainian president, Republicans have been scrambling to find an argument that might slow the momentum toward impeachment. The worst possible approach would be for the Republicans to circle the wagons around the president and contend that actually it is a good thing for presidents to use the tools of American foreign policy to advance their personal electoral interests, but some seem willing to run with that argument.

The initial effort to try to stave off impeachment has focused on various procedural complaints, which as often as not have been overtaken by events as President Trump and Rudy Giuliani concede the substance of the revelations. One procedural talking point still on offer is the complaint that the full House has not yet voted on whether to have a formal impeachment inquiry. This is not a serious objection.

House minority leader Kevin McCarthy recently sent a letter to House Speaker Nancy Pelosi requesting that the impeachment inquiry directed at the president be suspended until “transparent and equitable rules and procedures are established to govern the inquiry.” In particular, McCarthy wants a floor vote on the question of authorizing an impeachment inquiry. Republicans expect that at least a few Democrats would find it electorally difficult to cast such a vote, perhaps enough that such a vote would actually fail. Unsurprisingly, Pelosi continues to decline to schedule such a vote.

The Constitution does not require such an authorization vote. The Constitution simply gives the House the sole power of impeachment. The procedures that the House might follow to exercise that power are left to the House itself to determine. Formally, the House need do nothing other than vote on a final resolution of impeachment. The House could take such a vote based on nothing more than press reports or the report of an outside counsel or disciplinary committee. It need not conduct any independent investigation at all.

The articles of impeachment against the president introduced by Representative Al Green in 2017 turned entirely on the president’s public statements and the claim that they had brought the office of the president into “contempt, ridicule, disgrace, and disrepute.” There was nothing more to investigate. Everyone could see what the president had said about Charlottesville and other matters. The members of the House needed only to decide whether they thought such conduct justified impeachment.

There are occasions in which an authorization vote is needed. If the standing rules of the House do not empower a committee to issue subpoenas or if a committee lacked the resources to collect documents and interview witnesses, then the House might need to vote to bolster a committee’s resources so that it could conduct the kind of investigation that might lead to impeachment charges. If the House did not want a standing committee to do the relevant investigation under its preexisting authority, the House might prefer to create a select committee with a different membership and a more narrow mandate. But the modern House already provides adequate resources to its committees to conduct the kind of investigations that might provide the factual basis for an impeachment, and so no additional votes are generally necessary. The House does not currently need such special authorization.

A House impeachment is sometimes analogized to a grand jury indictment, and with good reason. An impeachment launches a process that will result in a trial where a defense can be presented, evidence weighed, and a vote on whether to convict on charges of misconduct can be taken. Like a grand jury, the House has an interest in going through enough of a process that it feels confident that there is a case of misconduct and that the House will be able to present a credible case in the Senate that might win a conviction. Politically, the House might want to lay out the case in public in order to build the political support it might need to justify impeachment and removal. It might want to hear the arguments of the accused in order to help it decide whether a case for removal is justified and whether the case is likely to be persuasive in a Senate trial. But those are pragmatic considerations, not constitutional requirements, and there are circumstances in which the House might think elaborate proceedings are unnecessary or counterproductive.

What matters in the end is whether a majority of the members of the House think that impeachment is justified and are thus willing to vote for articles of impeachment. A majority of the chamber might not know that until an investigation has been concluded and the facts laid on the table. In a reasonable world, it should be possible for politicians to be able to vote to conduct an investigation without knowing where the investigation will lead and how it might conclude, but we do not live in a reasonable world. If a vote on whether to conduct an impeachment inquiry is politically equivalent to a vote on whether to impeach, then we should want House leaders to protect their members from having to cast such a vote prematurely. An inquiry might be justified on the basis of very little, and an inquiry might determine that upon investigation there is smoke and no fire. We should want it to be possible to conduct investigations of misconduct before we know what the conclusion of such an investigation will be, and in our current political environment that probably means that we should want it to be possible to conduct investigations without having to hold prior votes to authorize such investigations. If the House decides to impeach the president, a majority of the members will have to go on record affirming their support for an impeachment. That is enough.

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Hong Kong Protesters Build Makeshift Catapult On Third Day Of Unrest Over ‘Anti-Mask’ Law

Hong Kong Protesters Build Makeshift Catapult On Third Day Of Unrest Over ‘Anti-Mask’ Law

Carrie Lam’s hope that her new ‘anti-mask’ edict would help quiet the protests unfortunately didn’t pan out. Rather, in retaliation, the protesters took to the streets on Saturday and Sunday in another round of violent clashes with police, the SCMP reports.

Sunday marked the third straight day of unrest and demonstrations over the mask ban – many Hong Kongers took to the streets as soon as the ban was announced on Friday and firms with a large presence in Hong Kong, including HSBC and Ernst & Young warned employees to work from home on Friday and through the weekend.

That proved to be a prescient decision, as in at least one incident, a group of protesters was filmed beating up a young JP Morgan banker who had the temerity to defend Beijing by shouting ‘we are all Chinese’.

Anyway, according to SCMP, two groups of protesters, many of them covering their faces in direct defiance of the mask bill, marched on routes from East Point Road in Causeway Bay to Chater Garden in Central, and from Salisbury Road in Tsim Sha Tsui to Maple Street Playground in Sham Shui Po. The marches began at around 2 pm local time (so about 2 am in the US).

After Hong Kong’s entire MTR transit system was shuttered yesterday due to the vandals, protesters came together and caused even more damage to train stations on Sunday. At the Mong Kok station, a locus of violence and mayhem on Sunday, three black-wearing protesters smashed CCTV cameras, spray painted the walls and caused general mayhem. Others joined in and covered the station with graffiti.

The extent of the damage throughout the evening was severe.

Hong Kong police caught a lucky break later in the evening on Sunday, as heavy rains drove many protesters to call it a day and return home. As much of Sunday’s unrest centered on the Mong Kok neighborhood, police brought water cannons and other crowd-control weaponry to a staging area in the neighborhood.

Earlier in the day, as one WSJ reporter in Hong Kong reported, protesters marched through Wan Chai chanting,”five demands, not one less.”

Even though the anti-mask law purportedly exempts those who wear masks for professional or health reasons, Hong Kong police were seen harassing two journalists over their gas masks.

“Who said journalists can wear masks? Does the law grant you the privilege to wear a mask? Are you a police officer who is carrying out his duties?” an officer asks.

The reporter removes the mask. Another two reporters are also questioned by police. The same officer also goes to a girl wearing a mask and asks her to take it off.

After protesters on Saturday destroyed dozens of ATMs during a rampage across the city, the Hong Kong Association of Banks warned on Sunday that cash refills to certain banks and ATMs would likely be delayed a while longer. 

Even as protests died down elsewhere in the city, a hard-core group of radicals in Mong Kok threw Molotov cocktails and police barricades and caused general mayhem.

In what can only be described as a creative triumph for the protesters (and one of the most impressive accomplishments since the demonstrations began), a handful of mask-clad demonstrators used bamboo scaffolding and countless zip-ties to build a makeshift catapult to keep the police at bay.

The catapult was situated on Nathan Road, outside the HSBC building In Mong Kok.

Here’s video of them testing it out.

And from two different angles.

Elsewhere in the city, police continued their heavy-handed crackdown. Reports claimed that public buses were stopped and searched by police, and that young people found to have masks in their bags or on their persons were removed by police.


Tyler Durden

Sun, 10/06/2019 – 12:00

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War Conflict

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Key Witness In Ex-Cop ‘Wrong Apartment’ Murder Trial Shot To Death

Key Witness In Ex-Cop ‘Wrong Apartment’ Murder Trial Shot To Death

A key witness in the murder trial of ex-cop Amber Guyger was shot and killed Friday evening at a Dallas apartment complex according to The Dallas Morning News. 

Joshua Brown

Joshua Brown testified that he was in a fourth-floor hallway on the night of September 6, 2018, when he heard what he thought sounded like “two people meeting by surprise.” He was unable to make out what they were saying, as the two were talking over each other. He then heard two gunshots as Guyger, an off-duty police officer, shot Botham Jean in his own apartment. 

Guyger was convicted on Tuesday of Botham’s murder and sentenced on Wednesday to 10 years in prison.

Brown was shot in the thigh and back according to a government official. 

Lee Merritt, a civil rights attorney who represents the Jean family, called Brown a “former athlete turned entrepreneur” whose slaying “underscores the reality of the black experience in America.”

“Brown lived in constant fear that he could be the next victim of gun violence,” Merritt wrote on Facebook. “Brown deserves the same justice he sought to ensure the Jean family.”

…

Dallas County prosecutor Jason Hermus, the lead prosecutor in the Guyger case, said Saturday that Brown stood up at a time when others won’t say what they know.

“He bravely came forward to testify when others wouldn’t, ” Hermus said. “If we had more people like him, we would have a better world.” –The Dallas Morning News

After bystanders flagged down police Friday night, Brown was taken to Parkland Memorial Hospital where he died from his injuries. Witnesses reported hearing several gunshots before a silver four-door sedan sped out of the parking lot. 


Tyler Durden

Sun, 10/06/2019 – 11:30

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Law Crime

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“Conspiracy Propaganda Stuff!” Chuck Todd Shouts Down GOP Senator In Fiery Trump-Ukraine Exchange

“Conspiracy Propaganda Stuff!” Chuck Todd Shouts Down GOP Senator In Fiery Trump-Ukraine Exchange

There was a full on Trump-Ukraine blow-up on Sunday’s Meet the Press, with Chuck Todd quick to slam what he called “Fox News Conspiracy Propaganda Stuff!”

Sen. Ron Johnson (R-WI) launched a defense of Trump when pressed by Todd over some of his recent comments made firmly denying the Democrats’ allegation that the White House withheld military aid to Ukraine in quid pro quo situation related to Biden’s dealings there. Johnson told Todd, “You’ve got [former CIA director] John Brennan on, you ought to ask director Brennan, what did Peter Strzok mean when he texted Lisa Page on December 15, 2016, quote—…”

“What does this have to do with Ukraine?” Todd interrupted. “It has everything to do with Ukraine,” Johnson retorted. Todd then cut in during the senator’s explanation, leveling the ‘conspiracy theorist’ charge at him. “I have no idea why Fox News propaganda stuff is popping up on here,” Todd said. “I have no idea.”

“Because this is underlining exactly why President Trump is upset, and why his supporters are upset, with the news media!” Johnson said, highlighting the seeming inability of the mainstream to dig into the original Ukraine-Biden scandal. 

“Senator Johnson, please!” Todd said. “Can we please answer the question that I asked you, instead of trying to make Donald Trump feel better here that you’re not criticizing him?! I’m just trying to ask a simple question of what made you wince?”

“Because I didn’t want those connected,” Johnson said, referencing the issue of withheld military aid and investigations over Biden. 

A visible angry Chuck Todd shouts down his guest, Republican Senator Ron Johnson of Wisconsin. Screenshot: NBC/Mediaite 

He added, “When I asked the president about that, he completely denied it. He adamantly denied it. He vehemently, angrily denied it. He said, ‘I’d never do that.’”

The heated sparring went throughout the ten minute NBC interview, the entirety of which can be viewed here.


Tyler Durden

Sun, 10/06/2019 – 11:01

Tags
Human Interest
Politics

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

Second Ukraine Whistleblower Comes Forward With “Firsthand Knowledge”

Second Ukraine Whistleblower Comes Forward With “Firsthand Knowledge”

A second whistleblower who doesn’t think Joe Biden should be investigated for corruption has come forward with “first-hand” knowledge of complaints against President Trump’s efforts to encourage Ukraine to do so.

The second whistleblower, represented by the same team of attorneys as the first one, has reportedly spoken with the intelligence community inspector general, Michael Atkinson. According to ABC News, they have not spoken with Rep. Adam Schiff’s (D-CA) House Intelligence Committee like the first whistleblower. It is unknown if they are also a CIA employee or a registered Democrat. 

“I can confirm that my firm and my team represent multiple whistleblowers,” said Andrew Bakaj – lead attorney for the first whistleblower (and who worked for both Hillary Clinton, Chuck Schumer – and donated to Joe Biden). 

Mark Zaid, another attorney representing the initial whistleblower, said that a second whistleblower has come forward with firsthand knowledge of some of the allegations described in the initial complaint, which describe efforts by Mr. Trump to press his Ukrainian counterpart to investigate a political rival. –WSJ

That said, we’ve all read the original whistleblower complaint and the transcript of the phone call between President Trump and Ukrainian President Volodomyr Zelensky in which Trump clearly does not use pressure or offer a quid pro quo as originally claimed. It will be interesting to discover what additional insight the second whistleblower can provide. 

Attorney Mark Zaid who represents the second whistleblower said that both officials have full protection of the law. 

The New York Times on Friday cited anonymous sources in reporting that a second intelligence official was weighing whether to file his own former complaint and testify to Congress. Zaid says he does not know if the second whistleblower he represents is the person identified in the Times report.

According to the first whistleblower, more than a half a dozen U.S. officials have information relevant to the investigation — suggesting the probe could widen even further. –ABC News

ABC News peddles a recent lie put forward by House Democrats last week about the Trump-Zelensky phone call – namely that Trump asked Ukraine to investigate Biden as a ‘favor’:

“A transcript released by the White House of Trump’s July 25 call with Ukraine President Volodymyr Zelenskiy showed Trump asking a “favor” of the foreign leader and pushing him to launch an investigation into the Biden family. ” -ABC News

Wrong, a reading of the transcript reveals that the ‘favor’ Trump asked for was only in relation to the DNC’s missing server and the DNC contractor Crowdstrike who analyzed it. Biden is mentioned later in the call, and nowhere near the ‘favor’ asked. 

Zelensky then responds, noting that he is fighting corruption and has a reliable team of investigators, and approximately 300 words later in the transcript Trump mentions Biden, long-divorced from the “favor.”

“There’s a lot of talk about Biden’s son,” Trump says, before suggesting Zelensky’s people contact Attorney General William Barr on the matter. “a lot of people want to find out about that so whatever you can do with the attorney general would be great.”

Notably, the Wall Street Journal did not conflate the ‘favor’ comment with Biden. 

And while Congressional Democrats have used the above as part of an impeachment inquiry against President Trump, they seem to be uninterested in allegations against the Bidens. What this does feel like is ‘Kavanaugh 2.0’ where we’re about to meet an endless stream of accusers seemingly trotted out to bolster an original flimsy claim. 


Tyler Durden

Sun, 10/06/2019 – 10:30

Tags
Politics
Business Finance

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