JP Morgan Shocked Young People Who Work From Home Are Less Productive Tyler Durden
Mon, 09/14/2020 – 20:20
JP Morgan was apparently surprised to discover that across its business lines, employees experienced a noticable decline in productivity during the last six months, as the world’s corporate office workers retreated to their work-from-home ‘rona rigs. The bank recently told its traders to report back to the office as the bank becomes the first Wall Street player to start recalling employees to the office, staking out a position opposite Google and the rest of ‘Big Tech’, which has (at least, publicly) embraced the ‘work from home lifestyle’.
Now, according to a report published earlier by Bloomberg, JPM has shared findings from some internal research with analysts at Stifel-owned Keefe, Bruyette & Woods. The report found that workers showed a definitive lack of “creative energy” while working from home.
JPM is shocked, SHOCKED to learn that young traders “working” from home are less productive
CEO Jamie Dimon has even lent his name to this little project.
“The WFH lifestyle seems to have impacted younger employees, and overall productivity and ‘creative combustion’ has taken a hit,” KBW’s Brian Kleinhanzl wrote in a Sept. 13 note to clients, citing an earlier meeting with Dimon.
The bank has noticed the productivity decline among “employees in general, not just younger employees,” JPMorgan spokesman Michael Fusco clarified in an emailed statement, adding that younger workers “could be disadvantaged by missed learning opportunities” by not being in offices.
[…]
“Overall, Jamie thinks a shift back to the office will be good for the young employees and to foster creative ideas,” Kleinhanzl wrote.
According to Bloomberg, JPM’s claims are an interesting “data point” to stand alongside studies which found that employees tend to work longer hours when they’re home. Depending on the individual job, situations can of course very from one extreme to the other.
JPMorgan’s findings provide a data point in the debate over whether employees perform as well at the kitchen table as they do in the workplace, showing extended remote work may not be all it’s cracked up to be, at least for some job functions. While pre-pandemic studies found remote workers were just as efficient as those in offices, there were questions about how employees would perform under compulsory lockdowns.
But we suspect JPM wouldn’t take such a risk, and come out so strongly in opposition to the new post-COVID-19 reality where work from home situations are much more common, if its clients wouldn’t approve.
Somewhere, some JPM clients (and, perhaps, potential clients), are probably relieved to see JPM take such a strong, “evidenced-based” stand against WFH.
via ZeroHedge News https://ift.tt/32tut0L Tyler Durden
CIA Threat Memo Says Iran Plotting To Assassinate Ambassador In Revenge For Soleimani Tyler Durden
Mon, 09/14/2020 – 20:00
Politico released a bombshell on Sunday, citing “multiple US intelligence sources” which said Iran was plotting to assassinate the American Ambassador to South Africa, 66-year old Lana Marks.
Apparently the report is based on slightly more than the usual ‘anonymous’ CIA officials, given this time Politicois citing a specific CIA global threats document, which says the planned future assassination is to be in revenge for the January US killing by drone strike of IRGC Quds Force chief Qasem Soleimani.
Allegedly the Iranian embassy in Pretoria is involved in the plot, based on the CIA document; however, it’s also said to reference other options in terms of potential revenge scenarios.
US Ambassador to South Africa, Lana Marks with President Trump, file image.
The intelligence threat assessment appears to have come to light based on the CIA notifying Ambassador Marks, who has been at her post for less than a year. According to Politico:
An intelligence community directive known as “Duty to Warn”requires U.S. spy agencies to notify a potential victim if intelligence indicates their life could be in danger; in the case of U.S. government officials, credible threats would be included in briefings and security planning. Marks has been made aware of the threat, the U.S. government official said.
The intelligence also has been included in the CIA World Intelligence Review, known as the WIRe, a classified product that is accessible to senior policy and security officials across the U.S. government, as well as certain lawmakers and their staff.
Politico further cited sources speculating they think Marks was made a target due to her perceived personal closeness to President Trump.
The claims immediately sparked criticism and push-back from a number of independent geopolitical analysts, who noted that an ambassador to South Africa is nowhere near the stature of Soleimani, easily the most influential and powerful commander in the Islamic Republic, who further reported directly to the Ayatollah.
I have a hard time buying this.
Not because Tehran is done avenging the killing of Soleimani, but because a handbag designer turned ambassador is not on par with Soleimani, Iran’s foremost general.
There’s also the perception that the Trump administration does not want to get sucked into another series of escalating incidents with Iran, given the huge “unknowns” in such a gambit would likely hurt Trump’s re-election chances so close to November.
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In late August, the Hoover Institution filmed an in-depth interview with Dr. Scott Atlas who serves as a top health advisor to the White House, more or less replacing Anthony Fauci in that role.
Atlas is an advocate for opening up the economy and allowing natural immunities to control the virus. In this, he has many colleagues in the public-health profession who agree with him, including many epidemiologists, virologists, immunologists, and medical doctors, all names frequently covered at AIER. This interview conducted by Hoover allows him to explain his views in depth.
Incredibly, YouTube has taken down the video interview of Scott Atlas for the usual vague reasons about community standards.
“As censorship goes, this is both terrifying and idiotic. Like him or hate him, Scott Atlas is ADVISING THE PRESIDENT ON COVID – no one gains when YouTube denies everyone the chance to hear what he thinks. People who oppose him should want to know even more.”
Two aspects of this are fortunate. LBRY has retained a copy and that copy is embedded below. In addition, Hoover retains a complete transcript of the interview.
If this can happen to a world-class and highly credentialed expert like Atlas, it can happen to anyone.
We need decentralized solutions like LBRY now, in the interest of openness, freedom, and truth.
via ZeroHedge News https://ift.tt/3iJAaxD Tyler Durden
Exhaustive Pentagon Review Finds No Evidence For NYTimes’ “Russian Bounties” Story Tyler Durden
Mon, 09/14/2020 – 19:20
There’s been huge efforts to validate The New York Times “bombshell” that wasn’t — concerning its summer reporting that Russia secretly offered bounties to the Taliban to kill US troops in Afghanistan.
Two months ago the Pentagon vowed to get to the bottom of it, launching a review of all intelligence and sources which might provide corroboration. And now at the end of that investigation Gen. Frank McKenzie, commander of the U.S. Central Command overseeing the war in Afghanistan, says the detailed investigation found no corroboration of the story.
Image source: AFP
Recall that from the start the whole thing smelled like a dramatic and desperate last ditch effort to revive the failed Russiagate narrative but in a different form. Multiple intelligence agency heads voiced their immediate skepticism in the wake of the claims linked to unnamed intelligence sources in the CIA.
Gen. McKenzie, told NBC News: “It just has not been proved to a level of certainty that satisfies me,” adding that, “We continue to look for that evidence. I just haven’t seen it yet.”
The new NBC report, published Monday, finds further:
A U.S. military official familiar with the intelligence added that after a review of the intelligence around each attack against Americans going back several years, none have been tied to any Russian incentive payments.
The suggestion of a Russian bounty program began, another source directly familiar with the matter said, with a raid by CIA paramilitary officers that captured Taliban documents describing Russian payments.
So there it is: the Pentagon did a detailed examination of each and every attack on American troops going back several years and found nothing.
But it’s yet another instance of the initial unchecked and unverified sensationalist claims from deep within the bowels of the Russia-obsessed mainstream going viral. But don’t expect for a moment that this new Pentagon finding that essentially ‘there simply no evidence!’ will receive the same exposure and circulation.
And now, a woman has shared on Facebook what her family recently experienced in the Kenosha, Wisconsin riots. In her post, the thing that stands out in my mind the most is that help was not on the way. The residents of Kenosha who stood their ground were completely on their own against the mobs rampaging through their neighborhoods. I’ve redacted some identifying information from her post – otherwise, the public post is exactly as she shared it on the social media outlet. All emphasis is mine.
The day of the worst destruction, fires, looting, assaults… all of us in Kenosha were able to watch live -via independent media. The entire start to finish. The worst of it happened on 22nd & 60th, and I live on [redacted], so to tell you I was terrified is an understatement. The majority of Kenosha was watching our two [redacted] live footage well until 3am… police scanners on… bracing for the worst. It was apparent from the beginning there was no help. No police, no fire trucks no ambulances. None. Structures burned to the ground, people hurt and attacked were loaded into cars and raced to any hospital they could get to, rioters just broke into businesses and took what they wanted.
And we all watched it happen. There was nothing we could do.
A sleepless night, we faced the next day with more fear. A massive clean up effort, we helped as many homes and buisnesses as we could, brace for the night, we started to get inundated with messages from individuals and groups … targeting violence to specific neighborhoods, schools, libraries.. with fires and destruction… lots of messages. Most specifically targeting LOCAL NEIGHBORHOODS… families!!!
Cars and buses were coming in to the city with no plates… caravans of groups. Again, no extra police or national guard.
But the rioters came to Kenosha that night again.
Our PD and any help it had was standing ground at the PD building and courthouse… and many rioters did not know… our PD was trying to keep them from burning these down, not only because it was our infrastructure but because right between those buildings were A LOT of local inmates that were currently there due to Covid closing our jail (HUBER).
Again live, we watched hundreds of rioters throwing Molotov cocktails at these buildings and burning our city garbage trucks and dump trucks to the ground that we were using to protect these buildings.
I was afraid for the small line of policemen there that night.
Everyone was urging me and Jim to take all of my animals and to leave the city… and let my house burn. To run far away from Kenosha. I love my home. Those who know me, know the pride we have taken in buying an (as-is) house and turning it into a home. And my business! Could I let it be destroyed?? Absolutely NOT!
We have dear friends with a popular business just 4 houses away… we spend at least once a week there… they packed up boarded up and closed.. terrified … it’s on the main road.
All of us were now under now a state of emergency curfew. Get home and off the streets! gas stations ordered to close and turn OFF all gas pumps.. the sirens and alerts on all of our phones coming in non- stop.
So we pulled out every firearm we owned. Loaded them up. And started to get ready… We were not leaving… Jim’s job told him to stay home and protect his family and home. Everyone in the city was getting ready for a war.
Are you starting to feel anxiety reading this?
Getting a grasp of how desperate we all were?
Knowing no law enforcement was helping? And I’m telling you… NO ONE was there.
I have a dear friend who lives in Gurnee. Has a home and a buisness there, and if she called me and Jim and told me her city was under attack, she was afraid for her LIFE and her store … I would help her. We would go to Gurnee and help her. Armed.
And that’s simply what happened. The residents started to realize this was on us. And we organized. Groups and individuals-On rooftop businesses -in the neighborhoods. I felt a little safer that night knowing we had some help.
So we watched again that night …live. Beginning to end.
At the lakefront… there was a small police presence again, where our courthouse and Pd is…. but the PD was nowhere else in the city. It was just us left to fend for ourselves, watching live feed again, Listening to the scanners … lights off, house alarm armed. Curtains drawn – guns ready as we listened to where the rioters were, which way they were headed. Despite the state of emergency curfew the city was flooded with cars driving around with no plates on, groups of people destroying our city. Not enough police to arrest or stop not ONE SINGLE PERSON.
Until the guard came to help… the entire city was left to its own defenses.
Hell… we ran out of plywood to board up!!!
I had the crates ready to throw the animals in and run… guns at every window and door. Constantly texting neighbors and friends around the city for updates.
When we say, if you don’t live here, you could not possibly know what was going on.. do you now understand? How afraid the whole city was?
The national guard FINALLY was called out – and did not mess around. The people who terrorized and destroyed Kenosha were not from Kenosha. Of all the arrests… most were from 44 other city’s. After our IDIOT governor finally asked, we got the help we should have had from DAY ONE. We had FBI and all the surrounding PD’s come to our aid.
If…you don’t live here… you could not possibly understand what we went thru. People should wait before they jump to conclusions. I just am disgusted beyond words at the judgement that’s happening. DISGUSTED
For those of you with children to protect, a business you put your heart and soul in… a home you struggled to own and pay for.. you have got to understand what we all went thru. The fear and the instinct to protect what you love, and what you worked so hard for is strong. I hope no one ever has to go thru anything like this. (source)
The damage in Kenosha is astounding.
Kenosha isn’t a huge city. It has a population of about 100,000 people. Until these riots, it was not considered a dangerous city. But things changed fast.
Here are some photos of the aftermath of the riots. Minus the damage from shells and sniper rifles, looks like a warzone to rival things I saw in Bosnia when I met with Selco and took one of his survival courses.
Is this the new America? If it’s this bad now, what’s going to happen after the election, particularly if the results are contested?
This is spreading across the country.
So many people are convinced this can never happen where they live. I see the denial all the time in the comments on my articles about this subject. And while it’s true that some parts of the country are more resistant to the riots and arson than others, it needs to be clearly understood that these are not locals perpetrating the damage. These are people being bussed in from other places. Time and time again, we see articles with local authorities claiming most of the arrests made were people from out of town.
This isn’t something you see coming a week ahead, like a hurricane on the horizon. One injustice, perceived or real, is all it takes to throw gasoline on a fire that is blazing across the country. It CAN happen to you, too.
Be prepared for civil unrest and riots because you won’t have much warning should violence mobs deploy near you. Have a plan to leave if possible. And if that’s not possible, it cannot possibly be more clear that you must be personally prepared to defend your home, your family, and your business because the police won’t be able to do it for you.
via ZeroHedge News https://ift.tt/2RuQUfG Tyler Durden
“Murphy’s Law”: New York May Follow New Jersey With Trading Tax Of Its Own Tyler Durden
Mon, 09/14/2020 – 18:40
As the feud grows between New Jersey, which houses both the main facility of the inappropriately named New York Stock Exchange and the Nasdaq and which sparked an uproar last month by proposing a tax on high frequency trading whose proceeds would be used to replenish the state’s empty coffers and funa a “social justice agenda“, and exchanges and various HFT firms which have threatened to promptly flee the state if such a trading tax does in fact pass, Height Capital Markets analyst Edwin Groshans wrote that a proposed tax on financial transactions under consideration by New Jersey Governor Phil Murphy might “encourage other states facing budget shortfalls, like N.Y., to pursue a similar strategy.”
“It also increases the risk that the federal government will act on implementing a financial transaction tax,” and will be an “issue to watch at the federal level” if Joe Biden wins in November and the Democrats gain Senate control, according to Groshans.
For his part, the analyst gave the tax a surprisingly high 65% chance of passing as part of N.J.’s budget process, though he noted Murphy has said the law is likely to be challenged in the courts.
As reported previously, a bill sponsored by Democratic Assemblyman John McKeon calls for a quarter-of-a-cent tax on stocks, options, futures and swaps trading via northern New Jersey electronic data centers. McKeon said the state could collect $10 billion annually from entities engaged in at least 10,000 transactions per year, which is about how many transactions HFTs make every second. If enacted, N.J. would be the first state in more than 40 years to tax trading activities.
Needless to say, the backlash has been violent: the move by New Jersey would “cause unintended and irreparable harm to the U.S. capital markets,” Cboe said in a separate statement. “A transaction tax is a direct cost shouldered by investors, who will also end up paying for the price of diminished liquidity and wider spreads in our markets.”
Well of course those who would be taxed by the proposal would say that, and as for diminished liquidity, go shove it: there is already zero “liquidity” in this “market”. If anything, the market parasite that is HFT should be uprooted, Reg NMS should be torn apart, and broken markets should restart from scratch, ideally while eliminated the Fed.
The NYSE has already threatened to depart the moment a tax was enacted: “We have data centers in various states and the ability to move trading outside of New Jersey in a business day,” said Hope Jarkowski, co-head of government affairs for New York Stock Exchange parent Intercontinental Exchange.
Yes, Hope, but what happens when all the states in which you have data centers follow NJ in establishing a paywall for ultra fast trades which do nothing to make the market more efficient unless one counts surging flash crashes “efficiency.”
Which brings up the problem with “Murphy’s Law” as some jokingly call it. First of all, not only will it not raise NJ tax revenues, but perversely lead to a decline as corporations which pay NJ’s state tax will simply pick up and leave. The question, is what happens if and when New York follows in New Jersey’s footsteps as Height Capital suggests. And unless the world’s biggest financial companies and HFTs are willing to flee the world’s financial capital – which they can’t – the world’s speed traders may suddenly find themselves facing a huge hit to their margins, because in a world where every single trade, no matter how small, is taxed the core premise behind one of the most lucrative business models on Wall Street – just ask Ken Griffen how many houses he has bought in the last few years…
… is about to collapse, with potentially dire consequences for the market.
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PA Governor’s COVID-19 Restrictions Ruled Unconstitutional By Federal Judge Tyler Durden
Mon, 09/14/2020 – 18:20
Democratic Pennsylvania Governor Tom Wolf’s pandemic restrictions – including a requirement that “non-life-sustaining” businesses were to shut down – has been ruled unconstitutional by a federal judge.
US District Judge William Stickman IV, a Trump appointee, ruled on Monday in a 66-page opinion that the restrictions were overreaching, arbitrary, and violated citizens’ constitutional rights. Plaintiffs in the case include hair salons, a farmer’s market vendor, a horse trainer drive-in movie theaters, and several GOP lawmakers, according to 6ABC.
The ruling means that the current restrictions – including limitations on the size of all gatherings, cannot be enforced.
“It’s really 100% in our favor. The court found in all respects that the orders issued by the governor and the secretary of health were unconstitutional. What it means is they can’t do it again, and they should not have done it in the past,” said attorney Thomas W. King III, who represents the plaintiffs. “It’s a complete and total victory for the counties, the businesses and the representatives,” he added.
Wolf said in a statement that his office would seek an immediate stay to halt the order while they file an appeal.
“The actions taken by the administration were mirrored by governors across the country and saved, and continue to save, lives in the absence of federal action,” said Lyndsay Kensinger, a spokesman for the governor, adding “This decision is especially worrying as Pennsylvania and the rest of the country are likely to face a challenging time with the possible resurgence of covid-19 and the flu in the fall and winter.”
Kensinger noted that Monday’s order does not apply to the mandatory mask order or the mandatory work-from-home order according to triblive.com.
After reviewing the record, Stickman said that he “believes that defendants undertook their actions in a well-intentioned effort to protect Pennsylvanians from the virus. However, good intentions toward a laudable end are not alone enough to uphold governmental action against a constitutional challenge. Indeed, the greatest threats to our system of constitutional liberties may arise when the ends are laudable, and the intent is good — especially in a time of emergency.”
Stickman, who was appointed to the bench in 2019, said that “even a vigilant public may let down its guard over its constitutional liberties only to find that liberties, once relinquished, are hard to recoup and that restrictions — while expedient in the face of an emergency situation — may persist long after immediate danger has passed.” –triblive.com
“You can’t just shut down American society,” said King, the plaintiffs’ attorney.
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Over the past few months, I have written several blog posts about how the courts have approached the 1st, 2nd, and 14th Amendments during the pandemic. Those posts will serve as the basis for a lengthy article. I should be able to post it to SSRN by the end of this month. It is comprehensive.
For now, I will flag a portion of Judge Stickman’s decision in the Pennsylvania lockdown case. (Eugene flagged it earlier). He accurately stated the place Jacobson occupies in our constitutional canon.
Jacobson was decided over a century ago. Since that time, there has been substantial development of federal constitutional law in the area of civil liberties. As a general matter, this development has seen a jurisprudential shift whereby federal courts have given greater deference to considerations of individual liberties, as weighed against the exercise of state police powers. That century of development has seen the creation of tiered levels of scrutiny for constitutional claims. They did not exist when Jacobson was decided. While Jacobson has been cited by some modern courts as ongoing support for a broad, hands-off deference to state authorities in matters of health and safety, other courts and commentators have questioned whether it remains instructive in light of the intervening jurisprudential developments.
In Bayley’s Campground, Inc. v. Mills, _ F. Supp. 3d _, 2020 WL 2791797 (D. Me. May 29, 2020), a district court examined whether the governor of Maine’s emergency order requiring, inter alia, visitors from out of state to self-quarantine, was constitutional. As here, before proceeding to its analysis of the substantive legal issues, the court examined how it should weigh the issues—according to a very deferential analysis purportedly consistent with Jacobson, as advocated by the governor, or under “regular” levels of scrutiny advocated by the plaintiffs. The district court examined Jacobson and, specifically, whether it warranted the application of a looser, more deferential, standard than the “regular” tiered scrutiny used on constitutional challenges. It observed: “[i]n the eleven decades since Jacobson, the Supreme Court refined its approach for the review of state action that burdens constitutional rights.” Id. at *8 (citing Planned Parenthood v. Casey, 505 U.S. 833, 857 (1992)). See also Planned Parenthood, 505 U.S. at 857 (citing Jacobson, 197 U.S. 24-30) (affirming that “a State’s interest in the protection of life falls short of justifying any plenary override of individual liberty claims.”). The district court declined to apply a standard below those of the established tiered levels of scrutiny. It stated:
[T]he permissive Jacobson rule floats about in the air as a rubber stamp for all but the most absurd and egregious restrictions on constitutional liberties, free from the inconvenience of meaningful judicial review. This may help explain why the Supreme Court established the traditional tiers of scrutiny in the course of the 100 years since Jacobson was decided. Bayley’s Campground, at *8.
Judge Strickman is exactly right. Jacobson, on its own terms, does not apply to these sorts of COVID-19 cases. Now that we have moved from the early days of the pandemic, I hope courts can approach these unprecedented lockdown measures with more consideration.
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I blogged below about the general analysis in Judge William S. Stickman IV’s decision in County of Butler v. Wolf (W.D. Pa.), as well as its application to the gatherings ban and the stay-at-home order. But the court also concluded that the business shutdown also violated substantive due process (as well as equal protection), because “The Fourteenth Amendment guarantees a citizen’s right to support himself by pursuing a chosen occupation”—and even if that right is subject only to rational basis scrutiny, the shutdown failed that scrutiny because it was too arbitrary:
The Supreme Court has recognized that the “core of the concept” of substantive due process is the protection against arbitrary government action. Indeed, “the touchstone of due process is protection of the individual against arbitrary actions of government ….” Rational basis review is a forgiving standard for government acts, but it “is not a toothless one ….” As a general matter, the rational basis test requires only that the governmental action “bear[] a rational relationship to some legitimate end.” Conversely, actions which are irrational, arbitrary or capricious do not bear a rational relationship to any end….
The record shows that the Governor’s advisory team, which designated the Business Plaintiffs and countless other businesses throughout the Commonwealth as “non-life-sustaining” and, thereby, closing them, did so with no set policy as to the designation and, indeed, without ever formulating a set definition for “life-sustaining” and, conversely “non-life-sustaining.” The terms “life-sustaining” and “non-life-sustaining” relative to businesses are not defined in any Pennsylvania statute or regulation…. The record demonstrates that the policy team’s unilateral determination as to which classes of businesses would be classified as “life-sustaining” was never formalized and the team never settled on a specific definition of “life-sustaining” ….
Mr. Robinson said that [the policy team] used the NAICS system to determine which businesses were “life-sustaining,” although the NAICS does not actually use that categorization. He acknowledged that the team simply applied their common-sense judgment as to what was, or was not, “life-sustaining.” In doing so, they did not confine themselves to “the formality of kind of enshrining a definition somewhere.” So, without a definition, how can one determine which businesses can stay open and which must close? Mr. Robinson said that one should look to the policy team’ s list (of “life-sustaining” businesses). Essentially, a class of business is “life-sustaining” if it is on the list and it is on the list because it is “life-sustaining.” …
The manner in which Defendants, through their policy team, designed, implemented, and administered the business closures is shockingly arbitrary. The policy team was not tasked with formulating a theoretical policy paper or standard to categorize abstract classes of business or NAICS codes. Rather, it had the authority to craft a policy, adopted wholesale by Defendants, that had an immediate impact on the Business Plaintiffs and countless other businesses, employers, and employees across the Commonwealth. Despite the fact that their decisions had the potential (and in many cases the actual effect) of destroying businesses and putting employees out of work, Defendants and their advisors never formulated a set, objective definition in writing of what constitutes “life-sustaining.”
The Court recognizes that Defendants were acting in haste to address a public health situation. But to the extent that Defendants were exercising raw governmental authority in a way that could (and did) critically wound or destroy the livelihoods of so many, the people of the Commonwealth at least deserved an objective plan, the ability to determine with certainty how the critical classifications were to be made, and a mechanism to challenge an alleged misclassification. The arbitrary design, implementation, and administration of the business shutdowns deprived the Business Plaintiffs and their fellow citizens of all three.
Another layer of arbitrariness inherent in the business shutdown components of Defendants’ orders are that many “non-life-sustaining” businesses sell the same products or perform the same services that were available in stores that were deemed “life-sustaining.” For example, Plaintiff R.W. McDonald & Sons is a small appliance and furniture store that was deemed a “non-life-sustaining” business and required to close. But larger retailers selling the same products, such as Lowes, The Home Depot, Walmart and others remained opened. Mr. McDonald stated that his business “lost approximately $300,000 in revenue” and that his business has been “financially devastated.” He also averred that he lost business to the big-box retailers that were permitted to remain in operation….
But the court rejected the equal protection challenge to the different reopening schedules in different regions:
The Court holds that Defendants had a rational basis for rolling out their reopening plan on a regional basis based on counties. Doing so recognized and respected the differences in population density, infrastructure and other factors relevant to the effort to address the virus. The Business Plaintiffs point to similarity between their area and neighboring counties permitted to open earlier, but rational basis does not require the granularity of a neighborhood by neighborhood plan. Distinctions between counties are a historically accepted manner of statewide administration and pass scrutiny here.
The court also held that the challenge to the shutdown order is not moot, even though it has been “suspended,” because it hasn’t been withdrawn outright and may yet be reinstated.
My sense is that the substantive argument invalidating the business shutdowns isn’t really consistent with the Court’s precedents on economic regulation and the rational basis test: Rightly or wrongly, the Court has held that the government has very broad authority in drawing lines when it comes to economic regulation (including regulation of the right to pursue one’s chosen occupation), and that seems to me to include making case-by-case decisions that may be hard to fit into a clearly articulable rule. I doubt that this part of the decision (or perhaps even the other parts) will survive on appeal, though I’ve been proved wrong in such predictions many times before.
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I blogged below about the general analysis in Judge William S. Stickman IV’s decision in County of Butler v. Wolf (W.D. Pa.), as well as its application to the gatherings ban. But the court also struck down the Governor’s order to “stay-at-home except as needed to access, support or provide life sustaining business, emergency, or government services”; that order, the court concluded, violates substantive due process:
Although this nation has faced many epidemics and pandemics and state and local governments have employed a variety of interventions in response, there have never previously been lockdowns of entire populations—much less for lengthy and indefinite periods of time…. [T]he lockdown effectuated by the stayat-home orders is not a quarantine. A quarantine [under Pennsylvania law] requires, as a threshold matter, that the person subject to the “limitation of freedom of movement” be “exposed to a communicable disease.” Moreover, critically, the duration of a quarantine is statutorily limited to “a period of time equal to the longest usual incubation period of the disease.” The lockdown plainly exceeded that period….
Defendants attempt to justify their extraordinary “mitigation” efforts by pointing to actions taken to combat the Spanish Flu pandemic a century ago. Ms. Boateng testified that, in response to the Spanish Flu, “much of the same mitigation steps were taken then, the closing of bars, saloons, cancellation of vaudeville shows, as they called them, and cabarets, the prohibition of large events. So some of these same actions that we’re taking now had been taken in the past.” But an examination of the history of mitigation efforts in response to the Spanish Flu—by far the deadliest pandemic in American history—reveals that nothing remotely approximating lockdowns were imposed.
Records show that on October 4, 1918, Pennsylvania Health Commissioner B. Franklin Royer imposed an order which closed “all public places of entertainment, including theaters, moving picture establishments, saloons and dance halls and prohibit[ed] all meetings of every description until further notice.” The order left to local officials the decision on whether to cancel school and/or religious services. The restrictions were lifted on November 9, 1918…. [S]tate and local mitigation measures were of similarly short durations across the nation. While, unquestionably, states and local governments restricted certain activities for a limited period of time to mitigate the Spanish Flu, there is no record of any imposition of a population lockdown in response to that disease or any other in our history….
[Still,] just because something is novel does not mean that it is unconstitutional….
[I]n Lutz v. City of York, 899 F.2d 255 (3d Cir. 1990). In Lutz, the Third Circuit examined a municipal ordinance regulating car cruising and unequivocally held that “the right to move freely about one’s neighborhood or town, even by automobile, is indeed, ‘implicit in the concept of ordered liberty’ and ‘deeply rooted in the Nation’s history.'” … [The Third Circuit applied intermediate scrutiny to the cruising ordinance, but t]he Court wonders whether the lockdown effectuated by the stay-at-home provisions of Defendants’ orders are of such a different character than the municipal car cruising ordinance as would warrant the imposition of strict scrutiny.
{[And courts have also] long recognized that beyond the right of travel, there is a fundamental right to simply be out and about in public. City of Chicago v. Morales (1999) (striking down an antiloitering ordinance aimed at combatting street gangs and observing that “the freedom to loiter for innocent purposes is part of the ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment.”). See also Papachristou v. Jacksonville, 405 U.S. 156, 164-65 (1972) (citing a Walt Whitman poem in extolling the fundamental right to loiter, wander, walk or saunter about the community); Bykofsly v. Borough of Middletown, 429 U.S. 964 (1976) (Marshall, J., dissenting) (“The freedom to leave one’s house and move about at will is of the very essence of a scheme of ordered liberty, … and hence is protected against state intrusions by the Due Process Clause of the Fourteenth Amendment.”) (internal citation and quotation marks omitted)); Waters v. Barry, 711 F. Supp. 1125, 1134 (D.D.C. 1989) (referencing Papachristou and stating “[t]he right to walk the streets, or to meet publicly with one’s friends for a noble purpose or for no purpose at all—and to do so whenever one pleases—is an integral component of life in a free and ordered society.”).} …
While the Third Circuit applied intermediate level scrutiny to the limited time, place and manner restrictions on the right to intrastate travel imposed by the [anti-cruising] ordinance at issue, there are substantial grounds to hold that strict scrutiny should apply to the stay-at-home provisions of Defendants’ orders. The intrusions into the fundamental liberties of the people of this Commonwealth effectuated by these orders are of an order of magnitude greater than any of the ordinances examined in right to travel cases, loitering and vagrancy cases or even curfew cases.
Defendants’ stay-at-home and business closure orders subjected every Pennsylvanian to a lockdown where he or she was involuntarily committed to stay-at-home unless he or she was going about an activity approved as an exception by the orders. This is, quite simply, unprecedented in the American constitutional experience. The orders are such an inversion of the usual American experience that the Court believes that no less than the highest scrutiny should be used.
However, the Court holds that the stay-at-home orders would even fail scrutiny under the lesser intermediate scrutiny used by the Third Circuit in Lutz. A critical element of intermediate scrutiny is that the challenged law be narrowly tailored so that it does “not burden more conduct than is reasonably necessary.” The stay-at-home orders far exceeded any reasonable claim to be narrowly tailored.
Defendants’ orders subjected every Pennsylvanian to a lockdown where he or she was involuntarily committed to stay-at-home unless he or she was going about an activity approved as an exception by the orders…. When in place, the stay-at-home order requires a default of confinement at home, unless the citizen is out for a purpose approved by Defendants’ orders. Moreover, this situation applied for an indefinite period of time. This broad restructuring of the default concept of liberty of movement in a free society eschews any claim to narrow tailoring.
In addition, the lack of narrow tailoring is highlighted by the fact that broad, open-ended population lockdowns have never been used to combat any other disease. In other words, in response to every prior epidemic and pandemic (even more serious pandemics, such as the Spanish Flu) states and local governments have been able to employ other tools that did not involve locking down their citizens. Although it is the role of the political branches to determine which tools are suitable to address COVID-19, the 2017 CDC guidance highlights the fact that governments have access to a full menu of individual and community interventions that are not as intrusive and burdensome as a lockdown of a state’s population.
Finally, the Court observes that the suspension of the operation of the stay-at-home order highlights that it “burdens more conduct than is reasonably necessary.” In other words, Defendants are currently using means that are less burdensome to the rights of a free people.
The Court declares, therefore, that the stay-at-home components of Defendants’ orders were and are unconstitutional. Broad population-wide lockdowns are such a dramatic inversion of the concept of liberty in a free society as to be nearly presumptively unconstitutional unless the government can truly demonstrate that they burden no more liberty than is reasonably necessary to achieve an important government end. The draconian nature of a lockdown may render this a high bar, indeed.
The court also held that the challenge to the stay-at-home order is not moot, even though it has been “suspended,” because it hasn’t been withdrawn outright and may yet be reinstated. I’m not sure whether the court’s decision, either on the substance or the mootness, was sound, but I thought it worth passing along. I also have a separate post on the court’s striking down the business shutdown order.
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