Supreme Court Decides to Take a Border Wall Case

Border Wall 2

Earlier today, as Jonathan Adler notes, the Supreme Court decided to hear Trump v. Sierra Club, one of several cases involving challenges to President Trump’s diversion of various funds to build his border wall. The Ninth Circuit court decision in this particular case addresses Trump’s efforts to Section 8005 of the 2019 Department of Defense Appropriations Act to use some $2.5 billion in military construction funds to build parts of the wall. It should not be confused with a similar case (also decided by the Ninth Circuit, and involving most of the same parties), which ruled against Trump’s efforts to divert military construction funds by using 10 USC Section 2808, one of a number of powers triggered by Trump’s declaration of a “national emergency” at the southern border.  Unlike the Section 2808 case, the current case does not involve the crucial issue of the scope of presidential “emergency” powers.

As a general rule, a Supreme Court decision to hear a case is not good news for whichever party prevailed in the lower courts (in this case the plaintiffs opposing the border wall). It is certainly possible that the conservative majority in the Supreme Court decided to take the case because they want to overrule the Ninth Circuit on the merits—i.e.  conclude that Trump had the authority to use Section 8005 to divert the funds. But other scenarios are also possible.

In both this case and an earlier, preliminary, Ninth Circuit ruling on the same subject, the lower-court dissenters focused mainly on the procedural argument that the plaintiffs in the case lacked a proper “cause of action” to challenge the funding diversion. This is in fact one of the questions the Supreme Court chose to consider. If they overturn the Ninth Circuit on procedural grounds, that leaves open the possibility that other parties can still challenge the funding diversion and secure a ruling on the merits against it. For example, the US Court of Appeals for the DC Circuit—in a decision written by prominent conservative Judge David Sentelle—recently ruled that the Democratic-controlled House of Representatives has standing to pursue a claim based on constitutional separation of powers grounds.

A ruling on the merits in favor of the administration would be an important victory for Trump. But it could still leave open the possibility that he can transfer funds using Section 8005, but not Section 2808, thereby denying him access to some of the pots of money he wants to use.

Finally, it is possible that the Court took the case because a majority of justices would like to rule against the administration on the merits. In this scenario, the justices might wantto send a strong signal that presidents are not allowed to play fast and loose with the spending power, which properly belongs to Congress.

Many observers seem to assume that this issue will necessarily divide the justices along ideological lines. If so, the plaintiffs are going to lose. But not all the lower court rulings have split in that way. The dissenters in various Ninth Circuit cases on the wall diversion have both been conservative Republican appointees, Judge Daniel Collins in this case and the Section 2808 case, and Judge N. Randy Smith in the preliminary injunction ruling on the current case. On the other hand, the majority in the latter decision included Judge Richard Clifton, a George W. Bush appointee. And, as already noted, prominent conservative Judge David Sentelle authored the recent DC Circuit ruling against the administration in the case  brought by the House of Representatives. Assuming, as is likely, that the three liberal justices will probably vote with the plaintiffs, the latter will need only two conservative “defectors” to prevail.

It is also possible that the whole case will be mooted out before the Supreme Court has a chance to decide it. If Joe Biden wins the presidential election, he is likely to simply terminate the entire funding diversion effort, as he has promised to do.

Otherwise, the Court will have to make some sort of ruling. If they reach the merits, it could set a major precedent on separation of powers and Congress’ authority over federal spending. The stakes in the case go far beyond the specific issue of wall construction. If Trump has nearly limitless authority to divert various  types of construction funds to wall building, future presidents can use the same power to fund all sorts of other projects.

I discussed the broader issues at stake in the wall litigation in greater detail here, here, and here. Some of them are not directly in play in the Section 8005 case. For example, the Section 8005 case does not address the questions of whether Trump can use the power of eminent domain to seize property for the border wall, and whether his declaration of a “national emergency” is legal.

 

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Supreme Court Decides to Take a Border Wall Case

Border Wall 2

Earlier today, as Jonathan Adler notes, the Supreme Court decided to hear Trump v. Sierra Club, one of several cases involving challenges to President Trump’s diversion of various funds to build his border wall. The Ninth Circuit court decision in this particular case addresses Trump’s efforts to Section 8005 of the 2019 Department of Defense Appropriations Act to use some $2.5 billion in military construction funds to build parts of the wall. It should not be confused with a similar case (also decided by the Ninth Circuit, and involving most of the same parties), which ruled against Trump’s efforts to divert military construction funds by using 10 USC Section 2808, one of a number of powers triggered by Trump’s declaration of a “national emergency” at the southern border.  Unlike the Section 2808 case, the current case does not involve the crucial issue of the scope of presidential “emergency” powers.

As a general rule, a Supreme Court decision to hear a case is not good news for whichever party prevailed in the lower courts (in this case the plaintiffs opposing the border wall). It is certainly possible that the conservative majority in the Supreme Court decided to take the case because they want to overrule the Ninth Circuit on the merits—i.e.  conclude that Trump had the authority to use Section 8005 to divert the funds. But other scenarios are also possible.

In both this case and an earlier, preliminary, Ninth Circuit ruling on the same subject, the lower-court dissenters focused mainly on the procedural argument that the plaintiffs in the case lacked a proper “cause of action” to challenge the funding diversion. This is in fact one of the questions the Supreme Court chose to consider. If they overturn the Ninth Circuit on procedural grounds, that leaves open the possibility that other parties can still challenge the funding diversion and secure a ruling on the merits against it. For example, the US Court of Appeals for the DC Circuit—in a decision written by prominent conservative Judge David Sentelle—recently ruled that the Democratic-controlled House of Representatives has standing to pursue a claim based on constitutional separation of powers grounds.

A ruling on the merits in favor of the administration would be an important victory for Trump. But it could still leave open the possibility that he can transfer funds using Section 8005, but not Section 2808, thereby denying him access to some of the pots of money he wants to use.

Finally, it is possible that the Court took the case because a majority of justices would like to rule against the administration on the merits. Many observers seem to assume that this issue will necessarily split the justices along ideological lines. If so, the plaintiffs are going to lose. But not all the lower court rulings have split in that way.

The dissenters in various Ninth Circuit cases on the wall diversion have both been conservative Republican appointees, Judge Daniel Collins in this case and the Section 2808 case, and Judge N. Randy Smith in the preliminary injunction ruling on the current case. On the other hand, the majority in the latter decision included Judge Richard Clifton, a George W. Bush appointee. And, as already noted, prominent conservative Judge David Sentelle authored the recent DC Circuit ruling against the administration in the case  brought by the House of Representatives. Assuming, as is likely, that the three liberal justices will probably vote with the plaintiffs, the latter will need only two conservative “defectors” to prevail.

It is also possible that the whole case will be mooted out before the Supreme Court has a chance to decide it. If Joe Biden wins the presidential election, he is likely to simply terminate the entire funding diversion effort, as he has promised to do.

Otherwise, the Court will have to make some sort of ruling. If they reach the merits, it could set a major precedent on separation of powers and Congress’ authority over federal spending. The stakes in the case go far beyond the specific issue of wall construction. If Trump has nearly limitless authority to divert various  types of construction funds to wall building, future presidents can use the same power to fund all sorts of other projects.

I discussed the broader issues at stake in the wall litigation in greater detail here, here, and here. Some of them are not directly in play in the Section 8005 case. For example, the Section 8005 case does not address the questions of whether Trump can use the power of eminent domain to seize property for the border wall, and whether his declaration of a “national emergency” is legal.

 

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Morgan Stanley: 10% Correction Coming After Failure To Breach 30 Year Resistance

Morgan Stanley: 10% Correction Coming After Failure To Breach 30 Year Resistance

Tyler Durden

Mon, 10/19/2020 – 15:49

Back on September 2, when stocks hit an all time high, we asked if it “could be this simple” when showing the long-term resistance of the S&P:

Well, at least so far, the answer appears to be yes and is also the reason why in his weekly focus note, Morgan Stanley’s chief equity strategist Michael Wilson writes that last week’s failure to break through technical resistance for second time “suggests the correction isn’t over.”

To that point, last month and shortly after our initial observation, Wilson laid out his view that long-term resistance in the S&P500 around the 3550 level would be very difficult to surpass prior to the outcome of the US election and passage of CARES 2. As he explains “this view was based on very strong long-term technical resistance going back to the late 1980s.”

Then, just days later, the index quickly retreated for its first 10% correction in this new bull market, and while last Monday the index once again staged a valiant effort to break through, it was thwarted once again. Of concern to Wilson is that this second attempt occurred on less momentum, “suggesting the correction that began in September is likely not complete.”

Furthermore, the Morgan Stanley strategist also highlights the lack of a fiscal stimulus deal, election outcome/timing of final results, and second wave of the virus “as the primary headwinds to higher prices in the near term.”

So with both fundamentals drivers and technicals limiting stock upside limited, with so many uncertainties over the next month Wilson says that “another 10% correction from Monday’s highs is the most likely outcome in the near term before this bull market can resume, at least at the index level.”

Next, to quantify the potential downside, Wilson says that he continues to view the 200-day moving average for formidable support from a technical standpoint, which today is at 3123.

Then, from a valuation perspective, Wilson refers to one of his preferred market indicators, the Equity Risk Premium, which he says “looks too low” given the near-term uncertainties and upside risk to long-term rates we see. As such, he would be more comfortable with a buffer of 50 bps to add risk here. Such an adjustment implies an ERP of ~425bps rather than the 375bps indicated by current level of realized vol and is shown in the next chart.

It’s also how he gets the 10% downside estimate: at 380 bps and with a 10-year Treasury yield at 0.75%, the current S&P 500 P/E multiple is ~22x. If one add the 50bps buffer noted above to the implied ERP from Exhibit 3 while holding the 10-year yield constant, we get a 2 multiple drop in the P/E to 20x, which implies 10% downside. Coincidentally, this also lines up with the 200-day moving average noted above.

Bottom line, Morgan Stanley urges investors to remain “disciplined” on new money entry points, favoring the low end of our 3100-3550 range we established back in August.

Finally, to avoid any bearish labels, Wilson as usual concludes on a bullish note, writing that the recovery and new bull market “remain on track to resume next year. More importantly, we think the average stock will outperform the major average (SPX), which is now highly concentrated to the top 20 largest stocks.” He believes that the best way to express this view is by owning an equal weighted S&P 500 relative to the market cap weighed S&P or by skewing one’s portfolio to smaller capitalization stocks that can deliver better operating leverage and earnings growth next year.

via ZeroHedge News https://ift.tt/37lNNjn Tyler Durden

TSA Passenger Traffic Tops One Million Sunday As Return To Normalcy Continues 

TSA Passenger Traffic Tops One Million Sunday As Return To Normalcy Continues 

Tyler Durden

Mon, 10/19/2020 – 15:35

Shares of US airlines lifted off Monday morning after data this past weekend showed passenger numbers hit seven-month highs as air travelers take advantage of super low-cost airfare despite the reemergence of COVID-19.

TSA published a press release early Monday saying it “screened over 1 million passengers Sunday, representing the highest number of passengers screened at TSA checkpoints since March 17, 2020.” 

The release continued: “In addition to screening one million passengers in a single day, TSA screened 6.1 million passengers at checkpoints nationwide during the week (Mon., October 12 through Sun., October 18). That weekly volume also represents the highest weekly volume for TSA since the start of the COVID-19 pandemic.”

h/t Reuters

According to TSA spokesperson Lisa Farbstein, airport security checkpoints nationwide screened 1,031,505 people on Sunday – this is still 60% lower than one year ago. 

TSA numbers this month show a return to normalcy, about eight months since the virus pandemic began. So far, the numbers this month show a rapid increase in travelers: 

  • Oct. 18 – 1,031,505 people screened
  • October 14 – 717,940 people screened
  • October 7 – 668,519 people screened

Readers may recall the lowest number of people screened at US airports was 87,534 on April 14, during lockdowns, where much of the airline and travel and tourism industry ground to a halt. 

The increase in air travel has occurred as US virus cases topped 70,000 last Friday, the highest level since July. Single-day caseload records were seen in Wyoming, Minnesota, Wisconsin, West Virginia, North Dakota, Indiana, New Mexico, Utah, and Colorado. 

As we’ve pointed out to our millennial readership, roundtrip airfare has never been cheaper – and with the virus mainly affecting the older segments of the population – now could be the time to travel. 

Goldman Sach’s Jan Hatzius compiled travel and tourism high-frequency data that suggests US air travel is steadily increasing from the April-May trough. US international passenger arrivals at the top five airports are also rising. Global air travel has rebounded as well. 

Another proxy of the travel and tourism rebound is Airbnb searches, which rebounded and recovered back to the February baseline but have since slumped into fall. 

Robinhood traders have spent the last seven months panic buying JETS ETF, with hopes the airline industry will recover in a “V-shaped” fashion.

The question traders have on their mind: How long will it take for the airline industry to recover?

With a full recovery not expected anytime soon, the latest air travel increase could come to an abrupt end this fall/winter as virus cases are expected to continue to rise. Nevertheless, there’s no proven or commercialized COVID-19 vaccine available – deterring many from flying. Is this as good as it gets?

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$465 Million Judgment Against Johnson & Johnson Threatens Freedom of Speech

Johnson-Johnson-logo

When an Oklahoma judge ordered Johnson & Johnson last year to pay half a billion dollars as compensation for the harm caused by abuse of prescription opioids, he relied on a definition of “public nuisance” so broad that it could cover nearly any product. Worse, as the Goldwater Institute notes in a brief supporting the company’s appeal to the Oklahoma Supreme Court, his theory of liability was based on statements protected by the First Amendment.

Cleveland County District Court Judge Thad Balkman—who initially ordered Johnson & Johnson to pay Oklahoma $572 million, a judgment he later reduced to $465 million—concluded that Johnson & Johnson had exaggerated the benefits of its pain medications and underplayed their dangers. Yet several of the statements he deemed misleading, including the observation that patients typically do not become addicted to these drugs and rarely die from overdoses, are actually true.

Some claims about pain medication—concerning, for example, the extent of undertreatment, the long-term benefits of opioids for people with chronic pain, and the concept of “pseudoaddiction,” which describes how bona fide patients desperate for pain relief can be mistaken for nonmedical “drug seekers”—are more controversial. Yet taking positions on these issues is not tantamount to commercial fraud. “The trial court characterized legitimate scientific discourse as deceptive,” the Goldwater brief says.

Balkman dismissed the notion that he was punishing Johnson & Johnson for constitutionally protected speech. “I conclude that the speech at issue here is commercial in nature and that it is therefore not protected speech under the First Amendment,” he wrote. That conclusion was doubly wrong, Goldwater says.

First, “commercial speech is protected by the First Amendment.” Although the Supreme Court has said the government has more leeway to regulate commercial speech than it has to regulate other kinds of speech, the restrictions still must meet the test described in the 1980 case Central Hudson Gas & Electric v. Public Service Commission of New York. When speech is not misleading and concerns lawful activity, the Court said in that case, regulations must “directly advance” a substantial government interest, and they must be narrowly tailored, meaning they are “not more extensive than necessary.” Balkman’s conclusion that Johnson & Johnson’s statements are “not protected speech under the First Amendment” therefore relies on his judgment that they were misleading, even when demonstrably true.

Second, the Supreme Court has defined commercial speech as expression that does “no more than propose a commercial transaction.” That description plainly does not apply to general statements about, say, the addictive potential of prescription opioids or the extent to which patients who could benefit from them are denied medication. In the 1983 case Bolger v. Young Drug Products, Goldwater notes, the Court held that “informational pamphlets about medicines” did not qualify as commercial speech, even though “they were created with a commercial motive and addressed one specific product.”

Having concluded that the First Amendment does not apply to Johnson & Johnson’s statements about opioids, Balkman used them to find the company guilty of creating a public nuisance, a concept that no one has been able to satisfactorily define. “Nobody knows what a public nuisance is,” Goldwater says, citing legal scholars who have described it as “vaguely defined,” “poorly understood,” “all things to all people,” a “wilderness,” an “impenetrable jungle,” a “quagmire,” and “a legal garbage can.”

The nebulous nature of “public nuisance” is reflected in the Oklahoma statute that Balkman applied to Johnson & Johnson, which says it “consists in unlawfully doing an act, or omitting to perform a duty, which act or omission…annoys, injures or endangers the comfort, repose, health, or safety of others” or “in any way renders other persons insecure in life, or in the use of property.” The breadth of such definitions poses obvious due process problems, since businesses are not given clear notice of which actions could expose them to massive liability.

The “public nuisance” concept has been deployed, for example, against companies that legally sold lead paint, which became a hazard years later as it flaked off surfaces in homes where it was used; gun manufacturers, because they legally sold firearms that were ultimately used in crimes; and General Motors, because its vehicles contribute to global warming. “Absent objective rules limiting liability,” Goldwater says, “the concept can become a catch-all rule against whatever government officials, or even individual citizens, decide is bad behavior.”

Making drug manufacturers liable for selling products in compliance with federal regulations is not merely unfair to them. It is part of a broader crackdown on pain medication that has denied treatment to legitimate patients while driving nonmedical users into a black market where the drugs are much more dangerous because their potency is highly variable and unpredictable.

The latter effect was apparent in the same trends that Balkman cited to justify his ruling against Johnson & Johnson. As the government succeeded in reducing opioid prescriptions, the upward trend in opioid-related deaths not only continued but accelerated. Illicit drugs now account for the vast majority of those deaths. Balkman, who erroneously claimed that the “current stage of the Opioid Crisis…still primarily involves prescription opioids,” seemed oblivious to that fact.

Balkman likewise dismissed the suffering of legitimate patients who are unable to get the medication they need to relieve their pain. That problem has been aggravated in recent years by ham-handed efforts to reduce opioid prescriptions, as the Food and Drug Administration, the Centers for Disease Control and Prevention, and the American Medical Association have recognized. But in Balkman’s view, any talk about undertreatment is inherently suspect, motivated by nothing but the desire to sell more pain medication. As Goldwater notes, “the trial court concludes that defendants and others broke the law by ‘suggest[ing] pain is undertreated and doctors should prescribe more opioids’—without finding that these things were factually untrue or negligently stated.”

Balkman’s decision quotes Terrell Phillips, a physician who said this during an October 2016 presentation to the Oklahoma State Medical Association: “Everyone here knows how we got in this situation. They told us we were underprescribing. We need to prescribe more. It’s the patient’s rights to have pain medicine, so we all got on board. And when someone said they were hurting, we said, ‘OK, we are going to give you something.’ Now it’s just the opposite. Not everyone deserves pain medicine.”

In Balkman’s view, that quotation reinforces the case that drug companies recklessly encouraged overprescription of opioids. But by implicitly endorsing the new message that “not everyone deserves pain medicine,” Balkman shows a callous disregard for the patients who suffer because other people abuse the medication on which they rely to make their lives bearable.

Similarly, Balkman treats the concept of pain as “the fifth vital sign,” which was intended to address undertreatment, as nothing more than a scheme to line the pockets of companies like Johnson & Johnson. “The phrase refers to the idea that physicians should be as focused on treating pain as they are on treating a patient’s difficulty with breathing, cardiac problems, etc.,” Goldwater notes. “This is a legitimate and humane attitude—quite the opposite of the shockingly inhumane, even cruel, idea expressed in the words the trial court quoted approvingly: ‘Not everyone deserves pain medicine.'”

Some critics argue that the “fifth vital sign” concept contributed to excessive prescribing. But that does not mean the idea, which was backed by the Joint Commission on Accreditation of Healthcare Organizations as well as the American Pain Society, the Institute of Medicine, and the U.S. Veterans Administration, was simply a mercenary scam, as Balkman implies.

Likewise with pseudoaddiction, a concept that was endorsed by the Food and Drug Administration. “Although ‘the concept may have fallen out of favor,'” Goldwater’s brief notes, “it has not been squarely rejected, let alone proven to be a form of deceptive marketing….There is nothing deceptive or unlawful about the scientific community proposing, discussing, studying, and even later rejecting a medical or psychological hypothesis.”

Balkman’s understanding of the speech that can make a company guilty of creating a public nuisance is so broad that it could encompass any participation in scientific or public policy debates by businesses with a financial interest in the outcome. If the National Shooting Sports Foundation expresses skepticism about “assault weapon” bans, for instance, that would count as commercial speech in Balkman’s view and, if deemed misleading, fall outside the scope of the First Amendment. Likewise if a natural gas producer defends fracking, if a carmaker criticizes new fuel efficiency standards, if a chemical company questions claims about pesticide residues on fruit and vegetables, or if a food manufacturer presents evidence that genetically modified ingredients pose no health threat to consumers.

Based on Balkman’s logic, messages like those, which heretofore have been understood as constitutionally protected, could be punished for creating a public nuisance. If so, First Amendment rights will be tossed into “a legal garbage can,” along with the fair notice required by due process.

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$465 Million Judgment Against Johnson & Johnson Threatens Freedom of Speech

Johnson-Johnson-logo

When an Oklahoma judge ordered Johnson & Johnson last year to pay half a billion dollars as compensation for the harm caused by abuse of prescription opioids, he relied on a definition of “public nuisance” so broad that it could cover nearly any product. Worse, as the Goldwater Institute notes in a brief supporting the company’s appeal to the Oklahoma Supreme Court, his theory of liability was based on statements protected by the First Amendment.

Cleveland County District Court Judge Thad Balkman—who initially ordered Johnson & Johnson to pay Oklahoma $572 million, a judgment he later reduced to $465 million—concluded that Johnson & Johnson had exaggerated the benefits of its pain medications and underplayed their dangers. Yet several of the statements he deemed misleading, including the observation that patients typically do not become addicted to these drugs and rarely die from overdoses, are actually true.

Some claims about pain medication—concerning, for example, the extent of undertreatment, the long-term benefits of opioids for people with chronic pain, and the concept of “pseudoaddiction,” which describes how bona fide patients desperate for pain relief can be mistaken for nonmedical “drug seekers”—are more controversial. Yet taking positions on these issues is not tantamount to commercial fraud. “The trial court characterized legitimate scientific discourse as deceptive,” the Goldwater brief says.

Balkman dismissed the notion that he was punishing Johnson & Johnson for constitutionally protected speech. “I conclude that the speech at issue here is commercial in nature and that it is therefore not protected speech under the First Amendment,” he wrote. That conclusion was doubly wrong, Goldwater says.

First, “commercial speech is protected by the First Amendment.” Although the Supreme Court has said the government has more leeway to regulate commercial speech than it has to regulate other kinds of speech, the restrictions still must meet the test described in the 1980 case Central Hudson Gas & Electric v. Public Service Commission of New York. When speech is not misleading and concerns lawful activity, the Court said in that case, regulations must “directly advance” a substantial government interest, and they must be narrowly tailored, meaning they are “not more extensive than necessary.” Balkman’s conclusion that Johnson & Johnson’s statements are “not protected speech under the First Amendment” therefore relies on his judgment that they were misleading, even when demonstrably true.

Second, the Supreme Court has defined commercial speech as expression that does “no more than propose a commercial transaction.” That description plainly does not apply to general statements about, say, the addictive potential of prescription opioids or the extent to which patients who could benefit from them are denied medication. In the 1983 case Bolger v. Young Drug Products, Goldwater notes, the Court held that “informational pamphlets about medicines” did not qualify as commercial speech, even though “they were created with a commercial motive and addressed one specific product.”

Having concluded that the First Amendment does not apply to Johnson & Johnson’s statements about opioids, Balkman used them to find the company guilty of creating a public nuisance, a concept that no one has been able to satisfactorily define. “Nobody knows what a public nuisance is,” Goldwater says, citing legal scholars who have described it as “vaguely defined,” “poorly understood,” “all things to all people,” a “wilderness,” an “impenetrable jungle,” a “quagmire,” and “a legal garbage can.”

The nebulous nature of “public nuisance” is reflected in the Oklahoma statute that Balkman applied to Johnson & Johnson, which says it “consists in unlawfully doing an act, or omitting to perform a duty, which act or omission…annoys, injures or endangers the comfort, repose, health, or safety of others” or “in any way renders other persons insecure in life, or in the use of property.” The breadth of such definitions poses obvious due process problems, since businesses are not given clear notice of which actions could expose them to massive liability.

The “public nuisance” concept has been deployed, for example, against companies that legally sold lead paint, which became a hazard years later as it flaked off surfaces in homes where it was used; gun manufacturers, because they legally sold firearms that were ultimately used in crimes; and General Motors, because its vehicles contribute to global warming. “Absent objective rules limiting liability,” Goldwater says, “the concept can become a catch-all rule against whatever government officials, or even individual citizens, decide is bad behavior.”

Making drug manufacturers liable for selling products in compliance with federal regulations is not merely unfair to them. It is part of a broader crackdown on pain medication that has denied treatment to legitimate patients while driving nonmedical users into a black market where the drugs are much more dangerous because their potency is highly variable and unpredictable.

The latter effect was apparent in the same trends that Balkman cited to justify his ruling against Johnson & Johnson. As the government succeeded in reducing opioid prescriptions, the upward trend in opioid-related deaths not only continued but accelerated. Illicit drugs now account for the vast majority of those deaths. Balkman, who erroneously claimed that the “current stage of the Opioid Crisis…still primarily involves prescription opioids,” seemed oblivious to that fact.

Balkman likewise dismissed the suffering of legitimate patients who are unable to get the medication they need to relieve their pain. That problem has been aggravated in recent years by ham-handed efforts to reduce opioid prescriptions, as the Food and Drug Administration, the Centers for Disease Control and Prevention, and the American Medical Association have recognized. But in Balkman’s view, any talk about undertreatment is inherently suspect, motivated by nothing but the desire to sell more pain medication. As Goldwater notes, “the trial court concludes that defendants and others broke the law by ‘suggest[ing] pain is undertreated and doctors should prescribe more opioids’—without finding that these things were factually untrue or negligently stated.”

Balkman’s decision quotes Terrell Phillips, a physician who said this during an October 2016 presentation to the Oklahoma State Medical Association: “Everyone here knows how we got in this situation. They told us we were underprescribing. We need to prescribe more. It’s the patient’s rights to have pain medicine, so we all got on board. And when someone said they were hurting, we said, ‘OK, we are going to give you something.’ Now it’s just the opposite. Not everyone deserves pain medicine.”

In Balkman’s view, that quotation reinforces the case that drug companies recklessly encouraged overprescription of opioids. But by implicitly endorsing the new message that “not everyone deserves pain medicine,” Balkman shows a callous disregard for the patients who suffer because other people abuse the medication on which they rely to make their lives bearable.

Similarly, Balkman treats the concept of pain as “the fifth vital sign,” which was intended to address undertreatment, as nothing more than a scheme to line the pockets of companies like Johnson & Johnson. “The phrase refers to the idea that physicians should be as focused on treating pain as they are on treating a patient’s difficulty with breathing, cardiac problems, etc.,” Goldwater notes. “This is a legitimate and humane attitude—quite the opposite of the shockingly inhumane, even cruel, idea expressed in the words the trial court quoted approvingly: ‘Not everyone deserves pain medicine.'”

Some critics argue that the “fifth vital sign” concept contributed to excessive prescribing. But that does not mean the idea, which was backed by the Joint Commission on Accreditation of Healthcare Organizations as well as the American Pain Society, the Institute of Medicine, and the U.S. Veterans Administration, was simply a mercenary scam, as Balkman implies.

Likewise with pseudoaddiction, a concept that was endorsed by the Food and Drug Administration. “Although ‘the concept may have fallen out of favor,'” Goldwater’s brief notes, “it has not been squarely rejected, let alone proven to be a form of deceptive marketing….There is nothing deceptive or unlawful about the scientific community proposing, discussing, studying, and even later rejecting a medical or psychological hypothesis.”

Balkman’s understanding of the speech that can make a company guilty of creating a public nuisance is so broad that it could encompass any participation in scientific or public policy debates by businesses with a financial interest in the outcome. If the National Shooting Sports Foundation expresses skepticism about “assault weapon” bans, for instance, that would count as commercial speech in Balkman’s view and, if deemed misleading, fall outside the scope of the First Amendment. Likewise if a natural gas producer defends fracking, if a carmaker criticizes new fuel efficiency standards, if a chemical company questions claims about pesticide residues on fruit and vegetables, or if a food manufacturer presents evidence that genetically modified ingredients pose no health threat to consumers.

Based on Balkman’s logic, messages like those, which heretofore have been understood as constitutionally protected, could be punished for creating a public nuisance. If so, First Amendment rights will be tossed into “a legal garbage can,” along with the fair notice required by due process.

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Peter Schiff: The Best Election Outcome Is Gridlock

Peter Schiff: The Best Election Outcome Is Gridlock

Tyler Durden

Mon, 10/19/2020 – 15:15

Via SchiffGold.com,

As we get closer to the 2020 election, analysts are starting to look at how various outcomes could affect the markets and the broader economy. Some of them are actually bullish on total Democratic Party control of the government.

Why?

In a recent podcast, Peter Schiff broke down what the analysts are saying and explains why he believes that the best possible outcome is gridlock.

Markets are beginning to handicap the presidential race. Oddly, they seem to be viewing a Biden win as a positive for the stock market. Peter said this doesn’t really make sense.

If Donald Trump being president was bullish for stocks because of what Trump was doing – if Biden was threatening to undo all that, and to increase taxes and have more regulation –  you would think that Wall Street would think that’s a negative.”

In a recent interview, Peter said he thought at some point, traders would handicap the race, see Biden as the most likely winner, and sell off.

But instead, the traders, I guess, took another look at the race and then decided that, yes, a Trump win is good for the markets, but a Biden win is even better.

There are basically four scenarios that could play out in November.

  1. Trump wins and the Senate stays in Republican hands

  2. Trump wins and the Senate swings to the Democrats

  3. Biden wins and the Senate stays in Republican hands

  4. Biden wins and the Senate swings to the Democrats.

Last week, an economist at Bank of America said the best scenario for the stock markets was a Democratic Party clean sweep. Peter said he’s seen this notion bandied about by other Wall Street pundits as well.

Why do they like this scenario?

After all, if we get that outcome, it is a certainty we will see corporate tax increases. If the tax cuts were good for the market, take hikes have to be bad. On top of that, we would likely see more regulatory red tape with Democrats in complete control. None of that bodes well for the economy. But the reason BoA likes this potential outcome the best is because it would likely mean the most fiscal stimulus.

What we want is no gridlock. We want the same party controlling Congress. And since there’s no way the Republicans are going to get the House, the only way to have clear sailing, no gridlock at all, to have the most amount of stimulus go through Congress and get signed by the president is if we have a Democrat sweep. And so even though the Democrats are going to raise taxes, this is still good for the stock market. Because this analyst realizes that the Fed and the stimulus trumps earnings. Earnings are secondary. The main game is stimulus. It’s the Federal Reserve that is playing the music that everybody on Wall Street is dancing to. And so, what this analyst is saying is we just need more of this music. The party is going to rage on if we get more stimulus.”

Peter said this proves that they know the entire stock market boom is artificial. And while he agrees that the Democrat sweep scenario might be good for the stock market, at least in the short-run, it’s the worst possible outcome for America. It’s certainly the worst outcome for the dollar.

The dollar is going to get killed. All that stimulus, all the deficits that are going to be the result of no gridlock – the traffic is going to flow meaning the red ink is going to flow. And so that is definitely the worst outcome for the dollar.”

The worst outcome according to the BoA economist is divided government. But Peter said for the economy, gridlock is the best thing we can hope for.

Anything that slows down what government wants to do is a positive. Because government wants to do harm. Government wants to damage the economy. So, to the extent that a divided government minimizes the damage, that’s a positive.”

Peter said he thinks a Biden win might play out the opposite of what we saw after Trump won in 2016, with a short stock market rally and then a sell-off as the markets digest what a Biden presidency really means and realize maybe hanging our hat on stimulus isn’t the best idea.

But again, the downside is always going to be mitigated by the Fed. But as the Fed mitigates the downside to the stock market, they intensify the downside to the dollar and to the overall US economy.”

In this podcast, Peter goes on to break down some of the economic numbers. He concludes that the economy has never been less great.

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

Poetry Monday!: “The Jumblies” by Edward Lear

For the rest of my playlist, click here. Past poems are:

  1. “Ulysses” by Alfred, Lord Tennyson
  2. “The Pulley” by George Herbert
  3. “Harmonie du soir” by Charles Baudelaire
  4. “Dirge Without Music” by Edna St. Vincent Millay
  5. “Clancy of the Overflow” by A.B. “Banjo” Paterson
  6. “Лотова жена” (“Lotova zhena”, “Lot’s wife”) by Anna Akhmatova

from Latest – Reason.com https://ift.tt/3jjObl6
via IFTTT

NYSE Prepares To Move Operations Out Of New Jersey If Trading Tax Passes

NYSE Prepares To Move Operations Out Of New Jersey If Trading Tax Passes

Tyler Durden

Mon, 10/19/2020 – 14:53

The saga over New Jersey’s trading tax continues, and in the latest installment the Mahwah-based New Jersey New York Stock Exchange told New Jersey lawmakers that it is prepared to move operations out of state should they impose a new tax on electronic trades via data servers, according to Bloomberg.

To prove that the NYSE is serious, in late September, Hope Jarkowski, co-head of government affairs for NYSE parent Intercontinental Exchange Inc., said that the world’s largest exchange by market capitalization conducted a test “for a wholesale transition out of New Jersey” noting that “from Sept. 28 to Oct. 2, we moved our production servers for our NYSE Chicago exchange out of New Jersey to our secondary data center.”

The kicker: “Proximity to New York City is no longer relevant in today’s trading environment.”

NYSE facility in Mahwah, NJ

The latest threat to bail on the Garden State comes after state lawmakers announced they plan to charge a tax of a hundredth-cent per trade, down from an earlier proposal of a quarter-cent levy. The fee, which is set to begin Jan. 1 and last two years if passed, would be paid by “high-quantity processors of financial securities,” or firms that collect and store data. Such operations exist in Mahwah, Secaucus, Carteret and elsewhere in New Jersey, where the NYSE, Nasdaq and CME all conduct operations, and whose proximity to Wall Street makes it conducive to fast electronic trades. But, as Bloomberg notes, “evolving technology is threatening the need for short, straight data lines, potentially allowing exchanges to operate well beyond their suburban tether.”

While New Jersey has estimated that a trade tax would bring in $500 million in each of the two years on transactions involving stocks, futures, options, credit-default swaps, derivatives and other trades, market representatives disagree, and instead claim that such taxes enacted in France, Sweden and Italy have fallen far short of goals.

The strategy “will backfire,” said Terry Campbell, vice president of global relations for Nasdaq Inc. “You will not get the revenue you predict.”

Instead, according to those who have for years benefited from the legal frontrunning that is HFT, claim that individual investors and middle-class retirees would shoulder the burden, via higher transaction fees and costs passed on by pension funds and other investment managers. A coalition of exchanges and trading firms have been fighting the tax, with Monday’s hearing giving them another chance to warn lawmakers that the levy will hurt the state more than help.

via ZeroHedge News https://ift.tt/2Tf8xB3 Tyler Durden

Poetry Monday!: “The Jumblies” by Edward Lear

For the rest of my playlist, click here. Past poems are:

  1. “Ulysses” by Alfred, Lord Tennyson
  2. “The Pulley” by George Herbert
  3. “Harmonie du soir” by Charles Baudelaire
  4. “Dirge Without Music” by Edna St. Vincent Millay
  5. “Clancy of the Overflow” by A.B. “Banjo” Paterson
  6. “Лотова жена” (“Lotova zhena”, “Lot’s wife”) by Anna Akhmatova

from Latest – Reason.com https://ift.tt/3jjObl6
via IFTTT