The Perverse Incentives of Page Limits v. Word Limits

Some courts impose word limits. Other courts impose page limits. I do not like page limits. Crafty attorneys can use various methods to adjust the page-count. For example, they can tweak justification, page breaks, end-of-line hyphenation, and other elements to make a document take up less space. Of course, the most blatant trick is to bury stuff in footnotes. Footnotes are usually single-spaced, and in a smaller font. I’ll admit that I’ve used this approach in the past when I was running up against a word limit. The nature of a page limit creates this perverse incentive. I much prefer word limits. That number measures everything you write, regardless of the spacing and formatting issues.

Recently, Judge Boasberg (DDC) struck a brief “for violating the Court’s Local Rule on excessive footnotes, particularly given the length of the footnotes.”

This brief was filed by the DOJ Federal Programs Branch. There were twelve footnotes. The longest was seventeen lines! Far short of a #TillmanPage, but really long for a legal brief.

I suspect Judge Boasberg may have been miffed by DOJ’s practice before, and wanted to send a message.

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The California Supreme Court Surprisingly Upheld Pension Reform Last Month

I’ve got a post up elsewhere on the Reason site, about two recent pension-related Contract Clause decisions from the California Supreme Court, Cal Fire and Alameda County. Here’s a snippet:

The Contract Clause of the U.S. Constitution is fairly accommodating to state legislatures that try to alter the obligations of contracts, including the contractually vested rights associated with state and local public employee pension benefits. But states generally have their own constitutional contract clauses—and state supreme courts are the supreme arbiters of what their own constitutions require. Some states go even further and have extra constitutional provisions specifically protecting public employee pensions; but regardless of the precise wording, state supreme courts that are disposed to grant public employee pensions constitutional protection have plenty of ways to do so.

California, for instance, along with some other states, like Arizona and Illinois, has long been known for its strict “California rule,” which provides some of the strongest legal protections for public employee pensions in the nation. Like most other states, California interprets the terms of public employee compensation, as laid out in public employment statutes, as contracts. Then—unlike many other states—it interprets those contracts as though they not only protect the benefits already earned but also guarantee at least as generous terms for the entire duration of one’s employment.

Thus, if an employee started working for the state when the employee pension contribution rate was 5 percent, a hypothetical statute raising that contribution rate to 10 percent several years later would count as an impairment of the state’s contractual obligation. Likewise, if the annual cost-of-living increase for retirees was 5 percent when the employee was hired and a later statute lowered it to 3 percent.

Under the California rule, if a later statute makes the terms of employment more attractive, then that new arrangement becomes the new standard, which is protected against deterioration for the employee’s entire working life with the state (and for the duration of retirement as well). Once such deterioration is shown, California courts have routinely demanded that the state provide compensating advantages to affected employees before upholding the pension reform; a mere fiscal crisis isn’t enough. (There were exceptions, as described in a previous article, but that was the general rule.)

Then, in 2016, a strange thing happened. . . .

Actually, several strange things happened, mostly in 2019 and last month (July 2020). As they say, Read The Whole Thing.

You can find my other Reason.org articles on antitrust, privatization, and public-employee pensions here.

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The Perverse Incentives of Page Limits v. Word Limits

Some courts impose word limits. Other courts impose page limits. I do not like page limits. Crafty attorneys can use various methods to adjust the page-count. For example, they can tweak justification, page breaks, end-of-line hyphenation, and other elements to make a document take up less space. Of course, the most blatant trick is to bury stuff in footnotes. Footnotes are usually single-spaced, and in a smaller font. I’ll admit that I’ve used this approach in the past when I was running up against a word limit. The nature of a page limit creates this perverse incentive. I much prefer word limits. That number measures everything you write, regardless of the spacing and formatting issues.

Recently, Judge Boasberg (DDC) struck a brief “for violating the Court’s Local Rule on excessive footnotes, particularly given the length of the footnotes.”

This brief was filed by the DOJ Federal Programs Branch. There were twelve footnotes. The longest was seventeen lines! Far short of a #TillmanPage, but really long for a legal brief.

I suspect Judge Boasberg may have been miffed by DOJ’s practice before, and wanted to send a message.

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As Chicago Nears Panic, Lightfoot’s Partisan Blather On National Television Only Hurts

As Chicago Nears Panic, Lightfoot’s Partisan Blather On National Television Only Hurts

Tyler Durden

Fri, 08/14/2020 – 17:20

By Mark Glennon of Wirepoints

From Hyde Park to the Gold Coast to Edgewater, residents across the city are adjusting their daily routines out of fear. They’re avoiding neighborhood walks after 6:00 p.m. At night, they don’t stand too close to their windows or dare to enjoy their outdoor balconies or terraces. Their children, who will likely be homebound for the remainder of the year, are forced to play indoors because local parks and playgrounds have been inhabited with litter, vandalism, and crime,” This is not a way to live, and I can’t fault homeowners when they tell me they’re considering leaving Chicago.

That’s from an open letter sent Wednesday by the president of Sudler, one of the biggest property management companies in Chicago, to Mayor Lori Lightfoot.

He’s hardly alone. A chorus of similar voices arose after Sunday night’s riots from a broad sector of Chicagoans. A few examples:

  • “The fear is spreading, the anxiety is spreading and we’re seeing individuals who used to see the downtown areas, like the crown jewel of our city, now wanting to leave…and stores who were just starting to get past the main riots and looting thinking that they may not stay on the Magnificent Mile anymore,” said Alderman Ray Lopez.

  • “The streets are empty and this time of year hotels would be full and the streets would be full. The rioting and violence have stopped people from coming downtown,” a Chicago business owner told “America’s Newsroom.”

  • “It has to stop,” Ashley Jones, a Gold Coast resident, said. “It has to come from the highest level up top. We can’t have our city looking like this.”

  • The head of Chicago’s Fraternal Order of Police wrote to  U.S. Attorney John Lausch and Attorney General William Barr Wednesday, calling on federal officials to intervene, saying Cook County State’s Attorney Kim Foxx applies a “presumption of dismissal” for charges related to looting.

Black Chicagoans are perhaps more fed up than anybody. Englewood residents told Black Lives Matter members to get lost when they tried to stage a protest there and, nationally, a whopping 81% of black Americans don’t want less police presence, which BLM wants.

Maybe the city got at least got some comfort Monday when Lightfoot finally showed no sympathy for the rioters and called for tougher prosecutions.

But a different Lightfoot went on national television Wednesday, resorting to partisan blather that was entirely unresponsive to people’s fears and against the city’s interest.

On MSNBC, she was shown a clip of President Trump’s reaction to the riots which, uncharacteristically, was restrained, polite and non-accusatory. He said Chicago had the resources to handle its own problems – which is exactly what Lightfoot has often said – and he added,

I’m offering all available federal support requested to stop the violence and arrest the criminals. We have to be asked by the governors or the mayors, and we’ll be there very rapidly. It’s ready, willing and able. We’re all ready, willing and able to go these jurisdictions and take care of them. We’ll do them very quickly.

That, too, is consistent with what Lightfoot has always said about federal aid.

But what was her response to Trump’s new tone and message?

“You know, those are the words of somebody who doesn’t understand the first thing about local policing, doesn’t understand the first thing about building authentic relationships with members of the community,” she said.

She went on to criticize Trump’s handling of Portland and blamed lack of tougher federal gun control measures for Chicago’s problems. Portland and guns had nothing to do with Sunday’s riots or Trump’s offer.

What good does a response like that do for the Chicago? The city desperately needs federal money to make ends meet, as Lightfoot herself has said. So does the State of Illinois and Chicago Public Schools, whose new budget assumes it will get a whopping $343 million in new federal help.

With an attitude like Lightfoot’s in response to an offer for help, it should be no surprise that Congress was unable to agree on any federal relief package for states and cities. Many GOP Senators, whose votes are needed for an aid package, represent states still in reasonably good shape and they are loath to asking their taxpayers bail out places like Chicago. Congress has now gone on recess until after Labor Day.

Lightfoot added not a single comment that might be constructive towards resolving the impasse. The relevant potion of her interview is below.

Chicagoans terrified about the city’s future will take no solace hearing their mayor put national politics over their interests.

That’s particularly true of business owners who also worry about workers who commute into Chicago. That letter from Sudler’s president to Lightfoot also said this:

Staff have fearfully traveled through downtown in the middle of looting sprees just to report to their shifts on time. They’ve dragged dumpsters in front of doorways as additional blockades, rehearsed and implemented lockdown procedures, called 911 on repeat, and for some, have been face-to-face with criminals threatening violence.

Facing that, and hearing Lightfoot on MSNBC, how could anybody choose to work or live in Chicago?

The next big problem may be Saturday when radicals plan to shut down the Dan Ryan Expressway at Noon. If they succeed, will Lightfoot again blame Portland, federal gun laws and Trump?

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61% Of Parents Fear Remote Learning Will Negatively Impact Finances

61% Of Parents Fear Remote Learning Will Negatively Impact Finances

Tyler Durden

Fri, 08/14/2020 – 17:20

As President Trump insists that American schools are ready to reopen safely, families with school-age children overwhelmingly wish things could return to normal – though many realize that, in certain parts of the country, it might be unwise to return so abruptly, even as cases are currently on the wane.

In a survey from Bankrate, 61% of parents with school-age children said keeping the kids at home might force them to reevaluate their finances, while simultaneously impacting the quality of their children’s education.

A new school year is just around the corner — and for many that means it’s time to convert the home into a classroom with remote learning being the new norm for millions of American families as a result of the coronavirus pandemic and the various government restrictions being imposed to help limit the potential spread through schools.

This change in education is not only rattling the system, but a new Bankrate survey reveals that it’s also forcing 61 percent of parents with school-aged children to reevaluate their finances and careers as they prepare for a unique school situation. And that’s not all, parents are also not feeling particularly optimistic about the educational side of remote learning with 42 percent of respondents anticipating negative impacts on their child(ren)’s overall education.

Bankrate surveyed 3,014 adults, including 1,592 parents and 605 parents with children enrolled in primary school (defined as Pre-k through 12th grade). Below are the main findings from the survey.

Here are some key takeaways from the Bankrate survey:

  • 30% of parents foresee the biggest financial impact with remote learning being the additional miscellaneous expenses (technology, tutoring, meals, etc.)
  • 67% of parents with kids between the ages of 5-10 say they anticipate being negatively impacted financially.
  • More than 4 in 10 parents surveyed believe remote learning will have a negative impact on their child(ren)’s education.

Read the rest in full below (text courtesy of BankRate.com):

* * *

The biggest financial impacts parents foresee with remote learning

Parents are anticipating an influx of additional miscellaneous expenses, with 30 percent answering that this would be the biggest financial impact due to remote learning. Miscellaneous expenses were defined as new technology, tutoring and meals.

Other top responses included having career opportunities limited due to lack of work/life balance (23 percent), having to cut work hours to help with learning (22 percent) and additional childcare expenses so that parents could return to or continue to work (16 percent).

Perhaps most alarming is that 15 percent of parents surveyed suggested that they may have to stop working altogether in order to tend to their children’s new learning environment.

“These findings suggest the economic recovery will continue to be slow,” says Ted Rossman, industry analyst at Bankrate. “Most students will be learning remotely this fall, and that alone will strain more than half of their parents’ household budgets. We’ve seen a record string of initial jobless claims – over one million every week since March. As long as the virus continues to spread widely, it’s hard to envision a full recovery, whether we’re talking [about] education, employment, travel or anything else.”

Some 67 percent of parents with kids ages 5-10 expect their personal finances to be negatively impacted by remote learning. The number is only slightly lower at 57 percent for parents with children between the ages of 11-15 and 46 percent for those with children ages 16-18.

Generationally speaking, millennial parents (ages 24-39) believe they will bear the brunt of financial strain (73 percent) whereas Gen Xers (ages 40-55) don’t anticipate their finances being impacted as much (49 percent).

From a geographical standpoint, parents in the Northeast (64 percent) say they are most likely to be negatively impacted financially with remote learning. Similarly, more than 6 in 10 parents living in the West (61 percent) anticipate their wallet will take a hit as well. Meanwhile, 59 percent of parents in the Midwest and South expect to see a negative financial impact with remote learning.

How parents feel about remote learning

Generally, parents are not looking forward to remote learning, with 42 percent believing that it will have a negative impact on their children’s education. On the contrary, 34 percent believe that it will have a positive impact and 25 percent were neutral.

From a political perspective, Republican (43 percent positive/38 percent negative) parents were the most optimistic about remote learning’s impact on their child(ren)’s education, whereas Independent (30 percent positive/49 percent negative) and Democrats (33 percent positive/39 percent negative) expressed more negative attitudes towards remote learning.

Regionally, parents in the Northeast (38 percent positive) and in the West (38 percent positive) have a slightly more positive attitude towards remote learning versus those in the Midwest (29 percent positive) and South (32 percent positive).

Finally, households with higher incomes ($80,000 or more) see more negatives when it comes to remote learning (48 percent negative/36 percent positive) than middle-income households ( those making $40,000 – $80,000 per year) who see it as 39 percent negative and 32 percent positive, and lower-income households (under $40,000) who view remote learning as 38 percent negative and 35 percent positive.

Preparing for a remote learning fall: Ways to save on back-to-school supplies

This fall is likely to come with more challenges than most, but there are a few things parents can do to help ease some of the financial burdens of this less than ideal situation.

For instance, if you have to buy new items then consider employing these four strategies to help you save:

  • Use a credit card that rewards you: If you’re looking for guaranteed savings, use a cash back credit card to pay for the supplies. You might only get a return of 1 percent or so, but it all adds up in the end — just make sure you are able to pay your bill on-time and in-full so you can actually reap the rewards.
  • Avoid high interest payments: If you’re facing a difficult financial situation, but your kids are in need of new supplies then you may want to consider opening a 0 percent intro APR card. These cards don’t incur any interest for a set period of time, which could be a good way to avoid building up any costly debt while you work on navigating this new situation. Beware, however, that the 0 percent APR is only an introductory offer and will expire, so pay attention to when the offer ends.
  • Check for discounts: Sometimes it pays to shop online. Not only is it convenient, but finding discounts is a lot easier — especially with browser extensions like Honey and Rakuten, which will do the discount searching for you.
  • Take advantage of tax-free shopping days: A number of states participate in tax-free weekends (some of which have already passed) ahead of the school year. These discounts are typically only available in-person, but they can save you a chunk of change whether it’s on school supplies or high-ticket items like electronics. (Double check to see what purchases qualify as tax free in your state.)

Don’t forget that not everything has to be brand new — do some shopping and ask around to see if you can find any pre-owned devices or supplies. There are plenty of online resources that sell this sort of stuff, but don’t be shy in asking around to friends, family and neighbors as they might have some things lying around that your family could put to good use. Finally, take inventory of your own home to see what you may already have.

* * *

Source: BankRate

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Did Buffett Just Bet Against The US? Berkshire Buys Barrick Gold, Dumps Goldman

Did Buffett Just Bet Against The US? Berkshire Buys Barrick Gold, Dumps Goldman

Tyler Durden

Fri, 08/14/2020 – 16:57

This is going to get awkward.

Berkshire Hathaway’s latest 13F just dropped and contained inside is a signal that none other than the Oracle Of Omaha appears to now be quietly betting against The United States.

Why? Because for years – in fact for as long we can remember – Warren Buffet has denigrated gold:

In a speech delivered at Harvard in 1998, Buffett said:

“(Gold) gets dug out of the ground in Africa, or someplace. Then we melt it down, dig another hole, bury it again and pay people to stand around guarding it. It has no utility. Anyone watching from Mars would be scratching their head.

He once famously said:

Gold is a way of going long on fear, and it has been a pretty good way of going long on fear from time to time. But you really have to hope people become more afraid in a year or two years than they are now. And if they become more afraid you make money, if they become less afraid you lose money, but the gold itself doesn’t produce anything.”

In his 2011 letter, Buffett noted that for $9.6 trillion you could buy “pile a” — all of the gold in the world, or “pile b” — the entire US cropland (400 million acres) plus 16 ExxonMobils and still have another $1 trillion left over.

“Admittedly, when people a century from now are fearful, it’s likely many will still rush to gold,” he wrote. “I’m confident, however, that the $9.6 trillion current valuation of pile A will compound over the century at a rate far inferior to that achieved by pile B.” 

In 2013, Buffett even went so far as to mock investors betting on gold, saying that there were better places to put your money.

“What motivates most gold purchasers is their belief that the ranks of the fearful will grow,” Buffett wrote in 2012. “During the past decade that belief has proved correct. Beyond that, the rising price has on its own generated additional buying enthusiasm, attracting purchasers who see the rise as validating an investment thesis. As ‘bandwagon’ investors join any party, they create their own truth — for a while.”

At Berkshire’s 2018 annual meeting, Buffett compared $10,000 invested in stocks and gold in 1942 (the first year he invested in stocks):

“… for every dollar you could have made in American business, you’d have less than a penny of gain by buying into a store of value which people tell you to run to every time you get scared by the headlines.”

And in  his 2019 letter he reiterated:

“The magical metal was no match for the American mettle.”

All of which makes the following even more stunning…

According to the latest 13F, Howard Buffett’s Berkshire Hathaway not only dumped all his airlines – as we learned previously 0 but has also liquidated huge amounts of its exposure to US banks (exiting Goldman Sachs entirely).

  • Berkshire’s JPMorgan Stake Down 62% to 22.2M Shrs
  • Berkshire’s Wells Fargo Stake Down 26% to 238M Shrs
  • Berkshire trimmed its bet on PNC Financial and M&T Bank as well as Bank of New York Mellon Corp., Mastercard, and Visa.
  • Berkshire Exits Goldman stake entirely

And while he modestly added to his positions in Kroger, Store Cap and Suncor Energy, the only new stock he bought in Q2 was… the world’s (formerly biggest) gold miner:

  • Berkshire took a new stake (20.9 million shares) in Barrick Gold, a holding that was valued at about $564 million at the end of that period.

Barrick Gold is up around 6% after hours…

Of course, we do note that this 13F filing reflects the stock picks of Buffett as well as his long-time deputies, Todd Combs and Ted Weschler. So it’s unclear who exactly put money to work in Barrick.

So, the famously anti-gold investor has abandoned banks – ‘the backbone of America’s credit-driven economy – in favor of a gold miner (which was the largest in the world until last year when Newmont bought Goldcorp).

Is Buffett betting against America with a levered position on precious metals?

What is most ironic about all of this is that Warren’s father, Howard Buffett, is among the great gold bugs of all time.

As we noted in 2010, a must read essay by Howard Buffett, father of the “legendary” investor who initially was so very much against derivatives then promptly changed his tune, discusses fiat money and gold, and concludes that “human freedom rests on gold redeemable money.”

In this stunningly simple, straightforward, and flawless analysis, Buffett’s father stresses the relation between money and freedom and contends that without a redeemable currency, an individual’s freedom and one’s access to property is dependent on goodwill of politicians. 

Buffett also says that paper money systems generally collapse and result in economic chaos. He goes on to observe that a gold standard would restrict government spending and give people greater power over the public purse. Lastly, back in 1948, Howard Buffett, said this the “present” is the right time to restore the gold standard. Alas, 60 years later, his advice has still been largely ignored, and as a result we have a global economy that stands on the precipice of global default with runaway budget deficits across the entire developed world. Key quotes:

“Is there a connection between Human Freedom and A Gold Redeemable Money? At first glance it would seem that money belongs to the world of economics and human freedom to the political sphere. 

But when you recall that one of the first moves by Lenin, Mussolini and Hitler was to outlaw individual ownership of gold, you begin to sense that there may be some connection between money, redeemable in gold, and the rare prize known as human liberty. Also, when you find that Lenin declared and demonstrated that a sure way to overturn the existing social order and bring about communism was by printing press paper money, then again you are impressed with the possibility of a relationship between a gold-backed money and human freedom.

His conclusion is eerily prophetic with what is happening with US society currently:

I warn you that politicians of both parties will oppose the restoration of gold, although they may outwardly seemingly favor it. Unless you are willing to surrender your children and your country to galloping inflation, war and slavery, then this cause demands your support. For if human liberty is to survive in America, we must win the battle to restore honest money.

And of course, he notes that the Federal Reserve is at the forefront of those who will do everything in their power to prevent a return of the gold standard:

Most opponents of free coinage of gold admit that that restoration is essential, but claim the time is not propitious. Some argue that there would be a scramble for gold and our enormous gold reserves would soon be exhausted.

Actually this argument simply points up the case. If there is so little confidence in our currency that restoration of gold coin would cause our gold stocks to disappear, then we must act promptly.

The danger was recently highlighted by Mr. Allan Sproul, President of the Federal Reserve Bank of New York, who said:

“Without our support (the Federal Reserve System), under present conditions, almost any sale of government bonds, undertaken for whatever purpose, laudable or otherwise, would be likely to find an almost bottomless market on the first day support was withdrawn.”

Our finances will never be brought into order until Congress is compelled to do so. Making our money redeemable in gold will create this compulsion.

The full essay is below, which we are confident was never read by Howard’s “oracular” son… until perhaps very recently…

Did it really take him until he was 90-years-old to realize that his dad was right after all?

So what happens next? Do Munger and Buffett buy bitcoin?

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Putin Sees US & Iran Headed Toward War – Proposes Urgent World Summit To Stop It

Putin Sees US & Iran Headed Toward War – Proposes Urgent World Summit To Stop It

Tyler Durden

Fri, 08/14/2020 – 16:48

Russia thinks war between the US and Iran is on the horizon, and is proposing steps to stop it:

Russian President Vladimir Putin on Friday proposed a video summit with the United States, Britain, France, China, Germany and Iran in a bid to avoid “confrontation and escalation” at the United Nations, where Washington is trying to extend an arms embargo on Tehran, reports Reuters.

But it’s hard to know what could be done at this point. Not only did the Trump administration void the 2015 nuclear deal (JCPOA), but long-standing hawks like Pompeo have sought to ramp up sanctions at every turn.

AFP/Getty Imags

The situation has been stalemated, with Tehran demanding easing of sanctions or erasure altogether as a condition for fresh talks, but with the White House alternately saying Iran has to first abandon all development related to nuclear power (which the US says is actually for nuclear weapons) and its ballistic missile program.

But if Gaddafi’s fate is anything to go by (who abandoned his WMD program in the early 2000s and was “brought in from the cold” as they say – only to be overthrown by US-NATO military intervention and summarily executed in the street years later), the view from Tehran is that any ‘deal-making’ with the United States is impossible.

“The issue is urgent,” Putin said of his plan in Friday comments. He explained the alternative remains “only further escalation of tensions, increasing risk of conflict – such a scenario must be avoided.”

Iranian ballistic missiles, via Iran Focus

When asked about Putin’s proposal and a press briefing on Friday, President Trump responded: “I hear there’s something, but I haven’t been told of it yet.”

However, given Iran essentially sees the US as in a state of war with the Islamic Republic – especially given the January assassination of IRGC Quds Force chief Qassem Soleimani, it will likely less than optimistic for any UN deconfliction meeting to succeed. 

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Why We Should Abolish the Requirement that the President Must be a “Natural Born Citizen”

Kamala-Harris-debate-9-12-19-Newscom
Senator Kamala Harris.

 

In almost every recent election, some prominent candidate’s eligibility for the presidency or vice presidency has been questioned on the theory that they do not meet the requirements of the Natural Born Citizen Clause of the Constitution. In 2016, the target was Ted Cruz. In 2008 and 2012, it was Barack Obama, who was assailed by “birtherists” who falsely claimed he was born outside the United States. Obama’s 2008 GOP opponent, John McCain, also came under attack because he was born in what was then the Canal Zone.

The latest Natural Born Citizen-controversy focuses on Democratic vice presidential nominee Kamala Harris, thanks to a Newsweek article by conservative legal scholar John Eastman, claiming that she isn’t eligible despite being born in the United States, due to the possibility that her parents were not yet US citizens at the time she was born. Eastman’s argument has, predictably been taken up by Donald Trump, just as Trump previously claimed Ted Cruz was ineligible in 2016, and promoted “birtherist” attacks on Obama.

Eastman’s argument is weak, and has already drawn strong rebuttals by co-blogger Eugene Volokh, and others. I would add that much of Eastman’s analysis rests on his extremely narrow interpretation of the Birthright Citizenship Clause of the Fourteenth Amendment, which I criticized here. For  what it is worth, I also defended Cruz’s eligibility in 2016. While I am no great fan of either Cruz or Harris, neither is ineligible to be president.

But the most objectionable aspect of this situation is that the Natural Born Citizenship Clause exists at all, thereby barring virtually all immigrants from holding the highest office in the land, and opening the door to ridiculous attacks on the eligibility even of people who have been US citizens all their lives, such as Cruz, Obama, and Harris. Instead of focusing on the candidates’ policies, competence, and character, we instead spend valuable time and effort debating such irrelevancies as where they were born and the exact legal status of their parents at the time.

Back in 2016, at the time of the Cruz controversy, I made the case for abolishing the natural born citizen requirement. It remains just as relevant today:

In recent weeks, much time and effort has been devoted to debating whether Ted Cruz is a “natural born citizen” eligible for the presidency. Whichever way you come down on this question of constitutional interpretation, the real lesson of this debate should be the absurdity of excluding naturalized citizens from the presidency in the first place. Categorically excluding immigrants from the presidency is a form of arbitrary discrimination based on place of birth (or, in a few cases, parentage), which is ultimately little different from discrimination on the basis of race or ethnicity. Both ethnicity and place of birth are morally arbitrary characteristics which do not, in themselves, determine a person’s competence or moral fitness for high political office.

The “natural born” citizen requirement was originally inserted into the Constitution because some of the Founders feared that European royalty or nobles might move to the United States, get elected to the presidency, and then use the office to advance the interests of their houses. Whatever the merits of this concern back in the 1780s, it is hardly a plausible scenario today.

One can argue that immigrants have less knowledge of the country and its customs, and might make worse presidents for that reason. But that problem is surely addressed by the constitutional requirement that a candidate for president must have been resident in the United States for at least fourteen years. As a practical matter, anyone who attains the political connections and public recognition needed to make a serious run for the presidency is likely to have at least as much knowledge of the US and American politics as most serious native-born candidates do.

Perhaps the most obvious objection to letting immigrants ascend to the presidency is the fear that they might be less loyal than native-born citizens are. But there is no good reason to think that people who became Americans by choice are less likely to be loyal than those did so merely by accident of birth. Indeed, the reverse conjecture is at least equally plausible. Even if some immigrant groups might, on average, be less loyal than natives, the same conjecture can be made about members of some ethnic or racial groups, as compared to others. Such statistical correlations – even if valid – would not justify categorically excluding members of those groups from the presidency, and the same point applies to immigrants.

The significance of this issue should not be overstated…. Exclusion from the presidency has little or no practical impact on the lives of the overwhelming majority of naturalized citizens. Nonetheless, categorical exclusion from eligibility for the nation’s highest office is an important symbolic affront to immigrants, even those who have no desire to run for the presidency themselves. Consider, for example, how blacks, Hispanics, or Irish-Americans might feel if their group was similarly excluded….

Abraham Lincoln once said that “[w]hen [immigrants] look through that old Declaration of Independence, they find that those old men say that ‘We hold these truths to be self-evident, that all men are created equal’; and then they feel that that moral sentiment, taught in that day, evidences their relation to those men… and that they have a right to claim it as though they were blood of the blood, and flesh of the flesh, of the men who wrote that Declaration; and so they are.” That principle will only be fully realized when we abolish the discriminatory exclusion of immigrants from the nation’s highest political office.

To the points made in my earlier piece, I would add that another reason for abolishing the Natural Born Citizen Clause is to take away the opportunity it creates for unscrupulous politicians to raise bogus eligibility issues against their opponents. Even if these claims lack legal merit, they  poison the political atmosphere and divert scarce public attention away from real issues.

I am not optimistic that a constitutional amendment abolishing this requirement can be passed anytime soon. The anti-immigrant attitudes of much of the GOP base precluded it, at this time. In addition, any amendment is extremely difficult to pass, given the requirement of securing two-thirds majorities in both houses of Congress, and then winning the support of three-fourths of state legislatures.

But things might well change as the passions of the current political moment pass, xenophobic sentiment recedes (polls consistently show younger voters are much more supportive immigration than older ones), and more people come to realize that the Natural Born Citizen Clause is at best stupid, and at worst an example of outright bigotry. At the very least, people may get tired of having to hear about this kind of claptrap every four years.

UPDATE: As before, I should acknowledge Harvard Law Professor Randall Kennedy’s longstanding advocacy of getting rid of this clause, which has influenced my own views.

 

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Did Sweden Accidentally Blunder into COVID-19 Herd Immunity?

TegnellNewscom

At the beginning of the COVID-19 pandemic, the Swedish government’s chief epidemiologist, Anders Tegnell, denied that his relatively permissive approach to controlling the spread of the coronavirus was aimed at achieving herd immunity.

Unlike most other rich countries—including its Nordic neighbors Denmark, Norway, and Finland—Sweden did not institute a strict lockdown. The government did, in late March, ban public gatherings of more than 50 people, including at theaters and sporting events. But the country decided to let most bars, restaurants, primary schools, and retail shops stay open. Universities and high schools were closed, and people were urged to work from home if possible. Some social distancing rules were adopted, such as limiting the number of customers at a time in shops and providing only table service at bars and restaurants.

Herd immunity is the resistance to the spread of a contagious disease that results if a sufficiently high proportion of a population is immune to the illness. At that point, some people are still susceptible but they are surrounded by immune individuals, who serve as a barrier preventing the microbes from reaching them. Herd immunity can be achieved through either mass infection or mass vaccination. Epidemiologists have converged on an estimate that 60 to 70 percent of people need to either have been vaccinated or infected to reach herd immunity for COVID-19.

While not explicitly adopting disease-induced herd immunity as a policy goal, Swedish public health authorities evidently expected the coronavirus to run quickly through the country’s population while not overwhelming its health care system. If a high enough percentage of Swedes became infected and recovered, then herd immunity would forestall a second wave of the disease.

At the end of April, Tegnell told CNBC: “In major parts of Sweden, around Stockholm, we have reached a plateau (in new cases) and we’re already seeing the effect of herd immunity and in a few weeks’ time we’ll see even more of the effects of that. And in the rest of the country, the situation is stable.” Also in late April, the Swedish Public Health Agency projected that 26 percent of Stockholm’s 2 million residents would have been infected by May 1. “About 30 percent of people in Stockholm have reached a level of immunity,” the Swedish ambassador to the U.S. told NPR. “We could reach herd immunity in the capital as early as next month.”

Yet a May study of blood tests in Stockholm found that only 7.3 percent of the city’s residents had produced antibodies in response to being infected by the coronavirus. This suggested that country was still far from that 60 to 70 percent threshold.

On June 3, as COVID-19 cases in Sweden continued to mount, Tegnell told Swedish Radio, “Should we encounter the same disease, with exactly what we know about it today, I think we would land midway between what Sweden did and what the rest of the world did.” In late April, daily Swedish COVID-19 deaths did peak, but it took until late June for the daily number of cases to begin to decline.

By late July, Tegnell was saying, “The epidemic is now being slowed down, in a way that I think few of us would have believed a week or so ago.” He added, “It really is yet another sign that the Swedish strategy is working. It is possible to slow contagion fast with the measures we are taking in Sweden.” On August 8, the Financial Times quoted Tegnell arguing that “there is a relationship between the very quick drop of the last few weeks and the increasing immunity in many parts of Sweden.”

Noting the recent drop in the daily tally of COVID-19 cases, Tegnell observed on August 9, “Exactly why this happened at that time and why it was so quick and sudden, is difficult for us to understand.” Tegnell acknowledges that the results of antibody blood tests do not find that enough Swedes have been infected and recovered to confer herd immunity as would be conventionally expected by epidemiologists.

So what could explain the “quick and sudden” drop in Sweden’s COVID-19 case and death rates? This is very speculative, but Swedish public health authorities may have accidentally blundered into herd immunity through a combination of previously unsuspected extensive pre-existing T-cell immunity to the coronavirus and differential risks of infection due to social interaction variations among its people.

First let’s look at T-cell immunity. Recent research suggests that people who have been infected with the milder coronaviruses that cause the common cold also have developed some immunity to the COVID-19 virus.

Two studies published in June—one by researchers associated with Karolinska Institute in Sweden, the other by researchers at the University Hospital Tübingen in Germany—identified coronavirus reactive T-cells, which are another virus-fighting component of the immune system. Earlier this month, a study in Science noted that T-cells that react to and counter COVID-19 coronavirus infections have been extensively reported in unexposed individuals, suggesting a pre-existing immune response in 20 to 50 percent of the population. So pre-existing T-cell coronavirus immunity among a significant proportion of the population may now be functioning as a barrier to COVID-19 infections, thus contributing to that 60 to 70 percent threshold.

Now let’s examine how age cohorts and social interaction propensities might affect the threshold. Science just published a modeling study that calculates, based on various assumptions about population age structures and social contact rates, that the herd immunity threshold for COVID-19 could be as low as 35 percent.

In a July 24 preprint study, a team of researchers associated with Oxford University’s Centre for Tropical Medicine and Global Health estimate that the COVID-19 herd immunity threshold could be as low as 10 to 20 percent. In their calculations, the team assumes that the individuals who are more susceptible or more exposed tend to become quickly infected and thus become immune early in the epidemic. Their subsequent interactions with the still-uninfected will thus not result in additional cases. Basically, they think the virus may stymie itself by disproportionately removing those most useful to it from contributing to its future transmission.

The Oxford researchers apply their analysis to the United Kingdom, Belgium, Spain, and Portugal. They conclude that all four countries, will reach a herd immunity threshold

between July and October and the COVID-19 epidemic [will be] mostly resolved by the end of 2020. Looking back, we conclude that [non-pharmaceutical interventions] had a crucial role in halting the growth of the initial wave between February and April. Although the most extreme lockdown strategies may not be sustainable for longer than a month or two, they proved effective at preventing overshoot, keeping cases within health system capacities, and may have done so without impairing the development of herd immunity.

You must keep firmly in mind the preliminary evidence for extensive pre-existing T-cell immunity and the speculative nature of these modeling studies. But combined, they do at least suggest the possibility that Sweden is more or less inadvertently close to achieving herd immunity—and, even better, that the end of the COVID-19 pandemic for much of the rest of the world may also be nigh.

How has Sweden fared in comparison with its Nordic neighbors that chose more comprehensive interventions? As of August 11, COVID-19 cases in Denmark, Norway, and Finland amounted so far to 14,959, 9,712, and 7,623, respectievly; deaths per million are at 107, 47, and 60, respectively. In Sweden, cases stood at 83,126 and deaths per million at 571. In the U.S., meanwhile, cases totaled 5,265,034 with deaths per million were at 503.

How did Sweden’s less vigorous adoption of non-pharmaceutical interventions affect its economy? Sweden’s GDP dropped 8.6 percent in the second quarter, compared to the European Union average of 11.9 percent. On the other hand, Sweden’s unemployment rate rose to 9.8 percent in June, while the European Union’s overall unemployment rate is 7.1 percent. And Sweden’s neighbors? Denmark’s unemployment rate is 5.5 percent; Norway’s is 4.6 percent; Finland’s is 7.9 percent. Meanwhile, the U.S economy shrank in the second quarter by 9.5 percent, and our an unemployment rate at the end of July stood at 10 percent.

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Why We Should Abolish the Requirement that the President Must be a “Natural Born Citizen”

Kamala-Harris-debate-9-12-19-Newscom
Senator Kamala Harris.

 

In almost every recent election, some prominent candidate’s eligibility for the presidency or vice presidency has been questioned on the theory that they do not meet the requirements of the Natural Born Citizen Clause of the Constitution. In 2016, the target was Ted Cruz. In 2008 and 2012, it was Barack Obama, who was assailed by “birtherists” who falsely claimed he was born outside the United States. Obama’s 2008 GOP opponent, John McCain, also came under attack because he was born in what was then the Canal Zone.

The latest Natural Born Citizen-controversy focuses on Democratic vice presidential nominee Kamala Harris, thanks to a Newsweek article by conservative legal scholar John Eastman, claiming that she isn’t eligible despite being born in the United States, due to the possibility that her parents were not yet US citizens at the time she was born. Eastman’s argument has, predictably been taken up by Donald Trump, just as Trump previously claimed Ted Cruz was ineligible in 2016, and promoted “birtherist” attacks on Obama.

Eastman’s argument is weak, and has already drawn strong rebuttals by co-blogger Eugene Volokh, and others. I would add that much of Eastman’s analysis rests on his extremely narrow interpretation of the Birthright Citizenship Clause of the Fourteenth Amendment, which I criticized here. For  what it is worth, I also defended Cruz’s eligibility in 2016. While I am no great fan of either Cruz or Harris, neither is ineligible to be president.

But the most objectionable aspect of this situation is that the Natural Born Citizenship Clause exists at all, thereby barring virtually all immigrants from holding the highest office in the land, and opening the door to ridiculous attacks on the eligibility even of people who have been US citizens all their lives, such as Cruz, Obama, and Harris. Instead of focusing on the candidates’ policies, competence, and character, we instead spend valuable time and effort debating such irrelevancies as where they were born and the exact legal status of their parents at the time.

Back in 2016, at the time of the Cruz controversy, I made the case for abolishing the natural born citizen requirement. It remains just as relevant today:

In recent weeks, much time and effort has been devoted to debating whether Ted Cruz is a “natural born citizen” eligible for the presidency. Whichever way you come down on this question of constitutional interpretation, the real lesson of this debate should be the absurdity of excluding naturalized citizens from the presidency in the first place. Categorically excluding immigrants from the presidency is a form of arbitrary discrimination based on place of birth (or, in a few cases, parentage), which is ultimately little different from discrimination on the basis of race or ethnicity. Both ethnicity and place of birth are morally arbitrary characteristics which do not, in themselves, determine a person’s competence or moral fitness for high political office.

The “natural born” citizen requirement was originally inserted into the Constitution because some of the Founders feared that European royalty or nobles might move to the United States, get elected to the presidency, and then use the office to advance the interests of their houses. Whatever the merits of this concern back in the 1780s, it is hardly a plausible scenario today.

One can argue that immigrants have less knowledge of the country and its customs, and might make worse presidents for that reason. But that problem is surely addressed by the constitutional requirement that a candidate for president must have been resident in the United States for at least fourteen years. As a practical matter, anyone who attains the political connections and public recognition needed to make a serious run for the presidency is likely to have at least as much knowledge of the US and American politics as most serious native-born candidates do.

Perhaps the most obvious objection to letting immigrants ascend to the presidency is the fear that they might be less loyal than native-born citizens are. But there is no good reason to think that people who became Americans by choice are less likely to be loyal than those did so merely by accident of birth. Indeed, the reverse conjecture is at least equally plausible. Even if some immigrant groups might, on average, be less loyal than natives, the same conjecture can be made about members of some ethnic or racial groups, as compared to others. Such statistical correlations – even if valid – would not justify categorically excluding members of those groups from the presidency, and the same point applies to immigrants.

The significance of this issue should not be overstated…. Exclusion from the presidency has little or no practical impact on the lives of the overwhelming majority of naturalized citizens. Nonetheless, categorical exclusion from eligibility for the nation’s highest office is an important symbolic affront to immigrants, even those who have no desire to run for the presidency themselves. Consider, for example, how blacks, Hispanics, or Irish-Americans might feel if their group was similarly excluded….

Abraham Lincoln once said that “[w]hen [immigrants] look through that old Declaration of Independence, they find that those old men say that ‘We hold these truths to be self-evident, that all men are created equal’; and then they feel that that moral sentiment, taught in that day, evidences their relation to those men… and that they have a right to claim it as though they were blood of the blood, and flesh of the flesh, of the men who wrote that Declaration; and so they are.” That principle will only be fully realized when we abolish the discriminatory exclusion of immigrants from the nation’s highest political office.

To the points made in my earlier piece, I would add that another reason for abolishing the Natural Born Citizen Clause is to take away the opportunity it creates for unscrupulous politicians to raise bogus eligibility issues against their opponents. Even if these claims lack legal merit, they  poison the political atmosphere and divert scarce public attention away from real issues.

I am not optimistic that a constitutional amendment abolishing this requirement can be passed anytime soon. The anti-immigrant attitudes of much of the GOP base precluded it, at this time. In addition, any amendment is extremely difficult to pass, given the requirement of securing two-thirds majorities in both houses of Congress, and then winning the support of three-fourths of state legislatures.

But things might well change as the passions of the current political moment pass, xenophobic sentiment recedes (polls consistently show younger voters are much more supportive immigration than older ones), and more people come to realize that the Natural Born Citizen Clause is at best stupid, and at worst an example of outright bigotry. At the very least, people may get tired of having to hear about this kind of claptrap every four years.

UPDATE: As before, I should acknowledge Harvard Law Professor Randall Kennedy’s longstanding advocacy of getting rid of this clause, which has influenced my own views.

 

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