Instant Analysis of Texas v. U.S. (Obamacare Decision) Part II: The Merits

The Fifth Circuit decided Texas v. United States, the challenge to the constitutionality of the ACA. The panel divided 2-1. Judges Elrod and Engelhardt found that (1) the Plaintiffs have standing, (2) the individual mandate was unconstitutional, but (3) remanded for further proceedings on severability. Judge King dissented. My first post considered  whether the individual plaintiffs have standing. This post will consider the merits. A third post will address severability.

The majority’s merits analysis begins at p. 33. The dissent’s merits analysis begins at p. 78.

As a threshold matter, the two opinions disagree about whether the ACA imposes a mandate, or merely offers people a choice: purchase insurance or pay a penalty. The Obama administration forcefully advanced the latter position in NFIB. (I addressed this issue at some length in a post titled, The Affordable Care Act Imposes A Mandate. Not a Choice.)

Part III-A of Chief Justice Roberts’s controlling opinion ruled that this “option” reading was not the most natural way to read the ACA. Rather, the ACA is most “naturally” read as imposing a command to buy insurance. The Court only accepted the “option” argument in Part III-C for purposes of the saving construction. Judge Elrod laid out the structure of NFIB:

As a general overview, Chief Justice Roberts’s opinion functioned in the following way. In Part III-A, Chief Justice Roberts said that the individual mandate was most naturally read as a command to buy insurance, which could not be sustained under either the Interstate Commerce Clause or the Necessary and Proper Clause. Though no Justice joined this part of the opinion, the four dissenting Justices—Justices Scalia, Kennedy, Thomas, and Alito—agreed with Part III-A in a separate opinion. In Part III-B, the Chief Justice wrote that even though the most natural reading of the individual mandate was unconstitutional, the Court still needed to determine whether it was “fairly possible” to read the provision in a way that saved it from being unconstitutional. In Part III-C, the Chief Justice—joined by Justices Ginsburg, Breyer, Kagan, and Sotomayor—concluded that the provision could be construed as constitutional by reading the individual mandate, in conjunction with the shared responsibility payment, as a legitimate exercise of Congress’ taxing power. This last part of the opinion supported the Court’s ultimate judgment: that the individual mandate was constitutional as saved.

I’ve created a diagram to explain Part III of Chief Justice Roberts’s controlling opinion.

The Structure of NFIB v. Sebelius

The mandate/option debate now turns on the status of Part III-C of the controlling opinion. Judge Elrod first focuses on Part III-B, which established the predicate for the saving construction:

In Part III-B, again joined by no other Justice, Chief Justice Roberts concluded that because the individual mandate found no constitutional footing in the Interstate Commerce or Necessary and Proper Clauses, the Supreme Court was obligated to consider the federal government’s argument that, as an exercise in constitutional avoidance, the mandate could be read not as a command but as an option to purchase insurance or pay a tax. This “option” interpretation of the statute could save the statute from being unconstitutional, as it would be justified under Congress’ taxing power. . . .

But this “option” reading is only feasible if the shared-responsibility payment raises revenue.

In Part III-C, the Chief Justice—writing for a majority of the Court, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan—undertook that inquiry of determining whether it was “fairly possible” to read the individual mandate as an option and thereby save its constitutionality.  Chief Justice Roberts reasoned that the individual mandate could be read in conjunction with the shared responsibility payment in order to save the individual mandate from unconstitutionality. Read together with the shared responsibility payment, the entire statutory provision could be read as a legitimate exercise of Congress’ taxing power for four reasons. First and most fundamentally, the shared-responsibility payment “yield[ed] the essential feature of any tax: It produce[d] at least some revenue for the Government.”

In short, Part III-C established that the ACA could be read as offering an “option” to pay a tax because the shared-responsibility payment raises revenue. The choice argument only works within the context of the saving construction.

Judge Elrod reasons that the saving construction is no longer applicable, because the shared-responsibility raises no revenue.

Now that the shared responsibility payment amount is set at zero,34 the provision’s saving construction is no longer available. The four central attributes that once saved the statute because it could be read as a tax no longer exist. Most fundamentally, the provision no longer yields the “essential feature of any tax” because it does not produce “at least some revenue for the Government.”

Therefore, NFIB foreclosed the “option” reading of the ACA if the saving construction falls.

As the individual plaintiffs point out, the Court interpreted the individual mandate as an option only because doing so would save it from being unconstitutional. Accordingly, the intervenor-defendant states must show that the “option” would still be a constitutional exercise of Congress’ taxing power.

And the majority holds that they cannot make this showing.

The dissent adopts an alternate argument advanced by the House of Representatives: the saving construction still applies, because it has become a part of the statutory scheme. Judge King wrote:

The majority pushes aside NFIB’s construction, acting as though the fact that the NFIB Court applied the canon of constitutional avoidance means that its interpretation no longer governs following the repeal of the shared-responsibility payment. But when the Court construes statutes, its “interpretive decisions, in whatever way reasoned, effectively become part of the statutory scheme, subject (just like the rest) to congressional change.” Kimble v. Marvel Entm’t, LLC, 135 S. Ct. 2401, 2409 (2015) (emphasis added).

I’m not sure the dissent’s application of Kimble to the ACA is correct. Kimble considered whether to overrule Brulotte v. Thys Co.(1964). This case provided a construction of federal patent law. Justice Kagan explained in her majority opinon:

Brulotte had read the patent laws to prevent a patentee from receiving royalties for sales made after his patent’s expiration. . . . To arrive at that conclusion, the Court began with the statutory provision setting the length of a patent term. See id., at 30 (quoting the then-current version of §154). Emphasizing that a patented invention “become[s] public property once [that term] expires,” the Court then quoted from Scott Paper: Any attempt to limit a licensee’s post-expiration use of the invention, “whatever the legal device employed, runs counter to the policy and purpose of the patent laws.” In the Brulotte Court’s view, contracts to pay royalties for such use continue “the patent monopoly beyond the [patent] period,” even though only as to the licensee affected. 379 U. S., at 33. And in so doing, those agreements conflict with patent law’s policy of establishing a “post-expiration . . . public domain” in which every person can make free use of a formerly patented product. Ibid.

The Court suggests that Brulotte may not have been correct as an original matter, but declines to overrule this statutory decision. Here is the full paragraph that Judge King’s dissent quotes from:

What is more, stare decisis carries enhanced force when a decision, like Brulotte, interprets a statute. Then, unlike in a constitutional case, critics of our ruling can take their objections across the street, and Congress can correct any mistake it sees. See, e.g., Patterson v. McLean Credit Union, 491 U. S. 164 –173 (1989). That is true, contrary to the dissent’s view, see post, at 6–7 (opinion of Alito, J.), regardless whether our decision focused only on statutory text or also relied, as Brulotte did, on the policies and purposes animating the law. See, e.g., Bilski v. Kappos, 561 U. S. 593 –602 (2010). Indeed, we apply statutory stare decisis even when a decision has announced a “judicially created doctrine” designed to implement a federal statute. Halliburton, 573 U. S., at ___ (slip op., at 12). All our interpretive decisions, in whatever way reasoned, effectively become part of the statutory scheme, subject (just like the rest) to congressional change. Absent special justification, they are balls tossed into Congress’s court, for acceptance or not as that branch elects.

Extending Kimble to NFIB is a stretch. First, Brulotte was a run-of-the-mill statutory decision that interpreted federal patent law. NFIB decided whether a federal law was consistent with the Constitution. Second, Kimble concerned whether stare decisis was warranted for an old statutory interpretation decision. Kimble, as applied to NFIB, does not implicate stare decisis; rather the question is whether the saving construction still ought to apply. Third, the Kimble court construes Brulotte as creating a “judicially created doctrine” to interpret a federal statute. But NFIB‘s saving construction was canon of avoidance to prevent a constitutional violation. Judge King puts far too much weight on the phrase “effectively” in “effectively becomes part of the statutory scheme.” I don’t think Kagan’s opinion can bear the weight of NFIB. The saving construction exists so long as it can reasonably save the ACA. But no longer.

Judge Elrod offers this response to Kimble:

The dissenting opinion justifies its continued reliance on the saving construction—even though it is no longer applicable—by citing Kimble v. Marvel Entm’t, LLC,135 S.Ct.2401(2015).This approach fares no better. The dissenting opinion quotes Kimble to say that “in whatever way reasoned,” the Court’s interpretation “effectively become[s] part of the statutory scheme, subject … to congressional change.” Id. at 2409.The dissenting opinion correctly acknowledges that the individual mandate was never changed.But what did change was the provision that actually mattered: the shared responsibility payment. When it was set above zero, it could be saved as a tax, even though five justices agreed this was an unnatural reading. It would be puzzling if Congress could change a statute at will, entirely insulated from constitutional infirmity, just because the Court had previously used constitutional avoidance to save a previous version of the statute.

This last point is worth developing further. If the dissent is correct, and saving constructions are baked into statutes, then Congress could subsequently remove the predicate for the saving construction with impunity. Forget the ACA for a moment.  Congress would now have a free pass to render a statute unconstitutional, precisely because the Supreme Court already saved it once.

Finally, the dissent argues that the individual mandate, as presently formed, is not unconstitutional because it is not an exercise of legislative power.

Thus, to my mind, the majority’s focus on whether Congress’s taxing power or the Necessary and Proper Clause authorizes Congress to pass a $0 tax is a red herring; the real question is whether Congress exceeds its enumerated powers when it passes a law that does nothing. And of course it does not.

The dissent relies on INS v. Chadha, and suggests that the individual mandate is a legal nullity that cannot be unconstitutional.

Congress exercises its legislative power when it “alter[s] the legal rights, duties and relations of persons.” INS v. Chadha, 462U.S. 919, 952(1983);cf. id. (“Not every action taken by either House is subject to the bicameralism and presentment requirements of Art. I. Whether actions taken by either House are, in law and fact, an exercise of legislative power depends not on their form but upon ‘whether they contain matter which is properly to be regarded as legislative inits character and effect.'”

What exactly is §5000A then? Neither fish nor foul? The majority responds somewhat incredulously to this position:

Finally, we would be remiss if we did not engage with the dissenting opinion’s contention that §5000A is not an exercise of legislative power. This would likely come as a shock to the legislature that drafted it, the president who signed it, and the voters who celebrated or lamented it. It is not surprising that the dissenting opinion can cite no case in which a federal court deems a duly enacted statute not an exercise of legislative power, much less a statute that clearly commands that an individual “shall” do something.38

38 The dissenting opinion’s theory of the “law that does nothing”results in some bizarre metaphysical conclusions.The ACA was signed into law in 2010. No one questions that when it was signed, §5000A was an exercise of legislative power. Yet today, the dissenting opinion asserts, §5000A is not an exercise of legislative power. So did Congress exercise legislative power in 2010, as seen from 2015? As seen from 2018?Does §5000A ontologically re-emerge shoulda future Congress restore the shared responsibility payment? Perhaps, like Schrödinger’s cat, §5000A exists in both states simultaneously. The dissenting opinion does not say. Our approach requires no such quantum musings.

I admit I am partial to this analogy, because I described §5000A in very similar terms:

I close this section with a constitutional riddle. In 2018, the individual mandate was constitutional because the shared responsibility payment was greater than $0. In 2019, the individual mandate became unconstitutional because the shared responsibility payment dropped to $0. But what if Congress, in 2020 or later, increases the shared responsibility payment above $0. At that time—unless the Supreme Court says otherwise—the individual mandate becomes constitutional again. We would have something akin to Schrödinger’s cat, where the mandate fluctuates between constitutional and unconstitutional, depending on the price of the penalty. The answer to this dilemma lies in a simple but widely misunderstood aspect of federal jurisprudence: all courts, including the Supreme Court, cannot and do not actually strike down laws. Statutes remain on the books until they are repealed. The judiciary lacks what Jonathan Mitchell referred to as the writ of erasure.163 Indeed, the Court has already considered the constitutionality of Schrödinger’s mandate.

Judge King responds:

Lest the majority mistake my position and end up shadowboxing with”bizarre metaphysical conclusions,””quantum musings,”or ersatz inconsistencies, Maj. Op. at 44 & n.40 [sic, should be fn. 40], I need to make something explicit at the outset.The TCJA did not change the text or the meaning of the coverage requirement, but it did change the real-world effects it produces. Before theTCJA, the two options afforded by the coverage requirement—purchasing insurance or making a shared-responsibility payment—were both burdensome, but Congress could force individuals to choose one of those options by exercising its Taxing Power. Today, the shared-responsibility payment’s meaning has not changed—it still gives individuals the choice to purchase insurance or make a shared-responsibility payment—but the amount of that payment is zero dollars, which means that the coverage requirement now does nothing. The majority’s contrary conclusion rests on the premise that the coverage requirement compels individuals to purchase health insurance. With this understanding, the majority says that the coverage requirement does exactly what the Supreme Court said it cannot do: compel participation in commerce. See NFIB, 567 U.S. at 552 (opinion of Roberts, C.J.); id. at 652-53 (joint dissent). This conclusion follows fine from the premise, but the premise is wrong. Despite its seemingly mandatory language, the coverage requirement does not compel anyone to purchase health insurance.

Footnote 10 states the crux of the dissent, and indeed reflects what many see as a frustrating aspect of this case:

10. In litigation generally, and in constitutional litigation most prominently, courts int he United States characteristically pause to ask: Is this conflict really necessary?”Arizonans for OfficialEnglish v. Arizona, 520U.S. 43, 75 (1997). The majority would do well if it paused to ask whether it is necessary for a federal court to rule on whether the Constitution authorizes a $0 tax or otherwise prohibits Congress from passing a law that does nothing. The absurdity of these inquiries highlights the severity of the majority’s error in finding the plaintiffs have standing to challenge this dead letter.

I hope to have more to say about the merits later. I will soon move onto a post on severability.

 

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Instant Analysis of Texas v. U.S. (Obamacare Decision) Part II: The Merits

The Fifth Circuit decided Texas v. United States, the challenge to the constitutionality of the ACA. The panel divided 2-1. Judges Elrod and Engelhardt found that (1) the Plaintiffs have standing, (2) the individual mandate was unconstitutional, but (3) remanded for further proceedings on severability. Judge King dissented. My first post considered  whether the individual plaintiffs have standing. This post will consider the merits. A third post will address severability.

The majority’s merits analysis begins at p. 33. The dissent’s merits analysis begins at p. 78.

As a threshold matter, the two opinions disagree about whether the ACA imposes a mandate, or merely offers people a choice: purchase insurance or pay a penalty. The Obama administration forcefully advanced the latter position in NFIB. (I addressed this issue at some length in a post titled, The Affordable Care Act Imposes A Mandate. Not a Choice.)

Part III-A of Chief Justice Roberts’s controlling opinion ruled that this “option” reading was not the most natural way to read the ACA. Rather, the ACA is most “naturally” read as imposing a command to buy insurance. The Court only accepted the “option” argument in Part III-C for purposes of the saving construction. Judge Elrod laid out the structure of NFIB:

As a general overview, Chief Justice Roberts’s opinion functioned in the following way. In Part III-A, Chief Justice Roberts said that the individual mandate was most naturally read as a command to buy insurance, which could not be sustained under either the Interstate Commerce Clause or the Necessary and Proper Clause. Though no Justice joined this part of the opinion, the four dissenting Justices—Justices Scalia, Kennedy, Thomas, and Alito—agreed with Part III-A in a separate opinion. In Part III-B, the Chief Justice wrote that even though the most natural reading of the individual mandate was unconstitutional, the Court still needed to determine whether it was “fairly possible” to read the provision in a way that saved it from being unconstitutional. In Part III-C, the Chief Justice—joined by Justices Ginsburg, Breyer, Kagan, and Sotomayor—concluded that the provision could be construed as constitutional by reading the individual mandate, in conjunction with the shared responsibility payment, as a legitimate exercise of Congress’ taxing power. This last part of the opinion supported the Court’s ultimate judgment: that the individual mandate was constitutional as saved.

I’ve created a diagram to explain Part III of Chief Justice Roberts’s controlling opinion.

The Structure of NFIB v. Sebelius

The mandate/option debate now turns on the status of Part III-C of the controlling opinion. Judge Elrod first focuses on Part III-B, which established the predicate for the saving construction:

In Part III-B, again joined by no other Justice, Chief Justice Roberts concluded that because the individual mandate found no constitutional footing in the Interstate Commerce or Necessary and Proper Clauses, the Supreme Court was obligated to consider the federal government’s argument that, as an exercise in constitutional avoidance, the mandate could be read not as a command but as an option to purchase insurance or pay a tax. This “option” interpretation of the statute could save the statute from being unconstitutional, as it would be justified under Congress’ taxing power. . . .

But this “option” reading is only feasible if the shared-responsibility payment raises revenue.

In Part III-C, the Chief Justice—writing for a majority of the Court, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan—undertook that inquiry of determining whether it was “fairly possible” to read the individual mandate as an option and thereby save its constitutionality.  Chief Justice Roberts reasoned that the individual mandate could be read in conjunction with the shared responsibility payment in order to save the individual mandate from unconstitutionality. Read together with the shared responsibility payment, the entire statutory provision could be read as a legitimate exercise of Congress’ taxing power for four reasons. First and most fundamentally, the shared-responsibility payment “yield[ed] the essential feature of any tax: It produce[d] at least some revenue for the Government.”

In short, Part III-C established that the ACA could be read as offering an “option” to pay a tax because the shared-responsibility payment raises revenue. The choice argument only works within the context of the saving construction.

Judge Elrod reasons that the saving construction is no longer applicable, because the shared-responsibility raises no revenue.

Now that the shared responsibility payment amount is set at zero,34 the provision’s saving construction is no longer available. The four central attributes that once saved the statute because it could be read as a tax no longer exist. Most fundamentally, the provision no longer yields the “essential feature of any tax” because it does not produce “at least some revenue for the Government.”

Therefore, NFIB foreclosed the “option” reading of the ACA if the saving construction falls.

As the individual plaintiffs point out, the Court interpreted the individual mandate as an option only because doing so would save it from being unconstitutional. Accordingly, the intervenor-defendant states must show that the “option” would still be a constitutional exercise of Congress’ taxing power.

And the majority holds that they cannot make this showing.

The dissent adopts an alternate argument advanced by the House of Representatives: the saving construction still applies, because it has become a part of the statutory scheme. Judge King wrote:

The majority pushes aside NFIB’s construction, acting as though the fact that the NFIB Court applied the canon of constitutional avoidance means that its interpretation no longer governs following the repeal of the shared-responsibility payment. But when the Court construes statutes, its “interpretive decisions, in whatever way reasoned, effectively become part of the statutory scheme, subject (just like the rest) to congressional change.” Kimble v. Marvel Entm’t, LLC, 135 S. Ct. 2401, 2409 (2015) (emphasis added).

I’m not sure the dissent’s application of Kimble to the ACA is correct. Kimble considered whether to overrule Brulotte v. Thys Co.(1964). This case provided a construction of federal patent law. Justice Kagan explained in her majority opinon:

Brulotte had read the patent laws to prevent a patentee from receiving royalties for sales made after his patent’s expiration. . . . To arrive at that conclusion, the Court began with the statutory provision setting the length of a patent term. See id., at 30 (quoting the then-current version of §154). Emphasizing that a patented invention “become[s] public property once [that term] expires,” the Court then quoted from Scott Paper: Any attempt to limit a licensee’s post-expiration use of the invention, “whatever the legal device employed, runs counter to the policy and purpose of the patent laws.” In the Brulotte Court’s view, contracts to pay royalties for such use continue “the patent monopoly beyond the [patent] period,” even though only as to the licensee affected. 379 U. S., at 33. And in so doing, those agreements conflict with patent law’s policy of establishing a “post-expiration . . . public domain” in which every person can make free use of a formerly patented product. Ibid.

The Court suggests that Brulotte may not have been correct as an original matter, but declines to overrule this statutory decision. Here is the full paragraph that Judge King’s dissent quotes from:

What is more, stare decisis carries enhanced force when a decision, like Brulotte, interprets a statute. Then, unlike in a constitutional case, critics of our ruling can take their objections across the street, and Congress can correct any mistake it sees. See, e.g., Patterson v. McLean Credit Union, 491 U. S. 164 –173 (1989). That is true, contrary to the dissent’s view, see post, at 6–7 (opinion of Alito, J.), regardless whether our decision focused only on statutory text or also relied, as Brulotte did, on the policies and purposes animating the law. See, e.g., Bilski v. Kappos, 561 U. S. 593 –602 (2010). Indeed, we apply statutory stare decisis even when a decision has announced a “judicially created doctrine” designed to implement a federal statute. Halliburton, 573 U. S., at ___ (slip op., at 12). All our interpretive decisions, in whatever way reasoned, effectively become part of the statutory scheme, subject (just like the rest) to congressional change. Absent special justification, they are balls tossed into Congress’s court, for acceptance or not as that branch elects.

Extending Kimble to NFIB is a stretch. First, Brulotte was a run-of-the-mill statutory decision that interpreted federal patent law. NFIB decided whether a federal law was consistent with the Constitution. Second, Kimble concerned whether stare decisis was warranted for an old statutory interpretation decision. Kimble, as applied to NFIB, does not implicate stare decisis; rather the question is whether the saving construction still ought to apply. Third, the Kimble court construes Brulotte as creating a “judicially created doctrine” to interpret a federal statute. But NFIB‘s saving construction was canon of avoidance to prevent a constitutional violation. Judge King puts far too much weight on the phrase “effectively” in “effectively becomes part of the statutory scheme.” I don’t think Kagan’s opinion can bear the weight of NFIB. The saving construction exists so long as it can reasonably save the ACA. But no longer.

Judge Elrod offers this response to Kimble:

The dissenting opinion justifies its continued reliance on the saving construction—even though it is no longer applicable—by citing Kimble v. Marvel Entm’t, LLC,135 S.Ct.2401(2015).This approach fares no better. The dissenting opinion quotes Kimble to say that “in whatever way reasoned,” the Court’s interpretation “effectively become[s] part of the statutory scheme, subject … to congressional change.” Id. at 2409.The dissenting opinion correctly acknowledges that the individual mandate was never changed.But what did change was the provision that actually mattered: the shared responsibility payment. When it was set above zero, it could be saved as a tax, even though five justices agreed this was an unnatural reading. It would be puzzling if Congress could change a statute at will, entirely insulated from constitutional infirmity, just because the Court had previously used constitutional avoidance to save a previous version of the statute.

This last point is worth developing further. If the dissent is correct, and saving constructions are baked into statutes, then Congress could subsequently remove the predicate for the saving construction with impunity. Forget the ACA for a moment.  Congress would now have a free pass to render a statute unconstitutional, precisely because the Supreme Court already saved it once.

Finally, the dissent argues that the individual mandate, as presently formed, is not unconstitutional because it is not an exercise of legislative power.

Thus, to my mind, the majority’s focus on whether Congress’s taxing power or the Necessary and Proper Clause authorizes Congress to pass a $0 tax is a red herring; the real question is whether Congress exceeds its enumerated powers when it passes a law that does nothing. And of course it does not.

The dissent relies on INS v. Chadha, and suggests that the individual mandate is a legal nullity that cannot be unconstitutional.

Congress exercises its legislative power when it “alter[s] the legal rights, duties and relations of persons.” INS v. Chadha, 462U.S. 919, 952(1983);cf. id. (“Not every action taken by either House is subject to the bicameralism and presentment requirements of Art. I. Whether actions taken by either House are, in law and fact, an exercise of legislative power depends not on their form but upon ‘whether they contain matter which is properly to be regarded as legislative inits character and effect.'”

What exactly is §5000A then? Neither fish nor foul? The majority responds somewhat incredulously to this position:

Finally, we would be remiss if we did not engage with the dissenting opinion’s contention that §5000A is not an exercise of legislative power. This would likely come as a shock to the legislature that drafted it, the president who signed it, and the voters who celebrated or lamented it. It is not surprising that the dissenting opinion can cite no case in which a federal court deems a duly enacted statute not an exercise of legislative power, much less a statute that clearly commands that an individual “shall” do something.38

38 The dissenting opinion’s theory of the “law that does nothing”results in some bizarre metaphysical conclusions.The ACA was signed into law in 2010. No one questions that when it was signed, §5000A was an exercise of legislative power. Yet today, the dissenting opinion asserts, §5000A is not an exercise of legislative power. So did Congress exercise legislative power in 2010, as seen from 2015? As seen from 2018?Does §5000A ontologically re-emerge shoulda future Congress restore the shared responsibility payment? Perhaps, like Schrödinger’s cat, §5000A exists in both states simultaneously. The dissenting opinion does not say. Our approach requires no such quantum musings.

I admit I am partial to this analogy, because I described §5000A in very similar terms:

I close this section with a constitutional riddle. In 2018, the individual mandate was constitutional because the shared responsibility payment was greater than $0. In 2019, the individual mandate became unconstitutional because the shared responsibility payment dropped to $0. But what if Congress, in 2020 or later, increases the shared responsibility payment above $0. At that time—unless the Supreme Court says otherwise—the individual mandate becomes constitutional again. We would have something akin to Schrödinger’s cat, where the mandate fluctuates between constitutional and unconstitutional, depending on the price of the penalty. The answer to this dilemma lies in a simple but widely misunderstood aspect of federal jurisprudence: all courts, including the Supreme Court, cannot and do not actually strike down laws. Statutes remain on the books until they are repealed. The judiciary lacks what Jonathan Mitchell referred to as the writ of erasure.163 Indeed, the Court has already considered the constitutionality of Schrödinger’s mandate.

Judge King responds:

Lest the majority mistake my position and end up shadowboxing with”bizarre metaphysical conclusions,””quantum musings,”or ersatz inconsistencies, Maj. Op. at 44 & n.40 [sic, should be fn. 40], I need to make something explicit at the outset.The TCJA did not change the text or the meaning of the coverage requirement, but it did change the real-world effects it produces. Before theTCJA, the two options afforded by the coverage requirement—purchasing insurance or making a shared-responsibility payment—were both burdensome, but Congress could force individuals to choose one of those options by exercising its Taxing Power. Today, the shared-responsibility payment’s meaning has not changed—it still gives individuals the choice to purchase insurance or make a shared-responsibility payment—but the amount of that payment is zero dollars, which means that the coverage requirement now does nothing. The majority’s contrary conclusion rests on the premise that the coverage requirement compels individuals to purchase health insurance. With this understanding, the majority says that the coverage requirement does exactly what the Supreme Court said it cannot do: compel participation in commerce. See NFIB, 567 U.S. at 552 (opinion of Roberts, C.J.); id. at 652-53 (joint dissent). This conclusion follows fine from the premise, but the premise is wrong. Despite its seemingly mandatory language, the coverage requirement does not compel anyone to purchase health insurance.

Footnote 10 states the crux of the dissent, and indeed reflects what many see as a frustrating aspect of this case:

10. In litigation generally, and in constitutional litigation most prominently, courts int he United States characteristically pause to ask: Is this conflict really necessary?”Arizonans for OfficialEnglish v. Arizona, 520U.S. 43, 75 (1997). The majority would do well if it paused to ask whether it is necessary for a federal court to rule on whether the Constitution authorizes a $0 tax or otherwise prohibits Congress from passing a law that does nothing. The absurdity of these inquiries highlights the severity of the majority’s error in finding the plaintiffs have standing to challenge this dead letter.

I hope to have more to say about the merits later. I will soon move onto a post on severability.

 

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Politicians Are Addicted to Price Controls

Despite overwhelming historical evidence demonstrating the folly of government-imposed price controls, modern politicians just can’t seem to quit inflicting them on us. One obvious example involves health care, where price controls on prescription medications always seem to be just around the corner and are now being considered in the rush to eliminate surprise medical bills. Fewer people know about similar efforts regarding the aluminum market, where some politicians are contemplating price controls to compensate victims of the trade war.

Back in March 2018, President Donald Trump announced that he would impose a 10 percent tariff on all imported aluminum (unless an exemption was later granted by the Department of Commerce).

Tariffs have increased the price of aluminum at great expense to metal consumers, and their complaints haven’t fallen on deaf ears. Unfortunately, well-meaning politicians have chosen the wrong path. Instead of fighting the president and demanding an end to the tariffs, they have devised a scheme meant to control the price of aluminum.

The Aluminum Pricing Examination Act targets firms that report on domestic aluminum market transactions. The firms in question merely provide information that benefits both buyers and sellers. But politicians are threatening to bring these firms’ functions under control of the Commodity Futures Trading Commission to satisfy aluminum users who are unhappy with the current trajectory of prices.

It’s understandable that beer brewers and others demanding intervention from elected officials aren’t pleased with rising aluminum prices. But prices reflect underlying market realities that can’t be changed simply by bringing political pressure to bear on those who monitor and report on them. It may come as a surprise to politicians, but removing your fire alarms won’t prevent fires.

This is a common political mistake, as price controls have existed for nearly as long as governments. The Code of Hammurabi, for instance, included a list of mandated prices for many types of labor and services circa 1754 B.C. Other historical examples can be found in ancient Egypt, Greece, and China, each providing ample evidence for the folly of government restrictions on price movements.

But for those elected officials not up on their ancient economic history, there’s no shortage of modern cases from which to learn.

President Richard Nixon thought he could fight inflation with a 90-day freeze on wages and prices, promising “action that will break the vicious circle of spiraling prices and costs.” After the freeze, increases would need the approval of either a “Pay Board” or “Price Commission.” Today, this sounds crazy, but Nixon wasn’t on an island. Markets rallied following his announcement, and the press ate it up.

The result was absolutely disastrous. Inflation—which, at just over 4 percent annually in 1971, wasn’t unreasonably high—shot up into the double digits by the time the controls were lifted.

Nixon’s controls on gasoline persisted through the Carter administration. Domestic exploration and production declined sharply, leading to an influx of foreign oil and long lines at the pumps that many still remember. When President Ronald Reagan finally ended the controls as one of his very first official acts as president, the gas lines immediately ended and gas prices soon plummeted.
Some price controls are ongoing. Rent control has devastated housing markets, particularly in New York and California, by distorting supply and demand. A few lucky individuals make out well, but studies consistently show that almost everyone else—especially would-be renters—will suffer because there’s less incentive to build new housing.

Why do price controls always produce the same result? It’s not complicated, really. Prices give us incentives to produce and consume goods in economically sustainable ways. They convey information.

High prices, for example, signal where more of a particular good is needed. We see this most clearly following natural disasters or other unexpected shocks, which is why anti-price-gouging regulations are counterproductive.

Providing false signals through mandates for artificially low or high prices results in poor market performance. As Nobel Prize-winning economist Milton Friedman best explained, “Economists may not know much. But we know one thing very well: how to produce surpluses and shortages. Do you want a surplus? Have the government legislate a minimum price that is above the price that would otherwise prevail … Do you want a shortage? Have the government legislate a maximum price that is below the price that would otherwise prevail.”

If he’s right that economists don’t know much, then politicians must know even less.

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Former NSA Tech Chief Says Mueller Report Was Based On CIA-Fabricated “Evidence”

Former NSA Tech Chief Says Mueller Report Was Based On CIA-Fabricated “Evidence”

Authored by Eric Zuesse via The Duran,

On December 12th, the retired NSA whistleblower and former Technical Director of the NSA, Bill Binney asserted, at 39:00-44:00 in this audio interview of him:

BILL BINNEY: I basically have always been saying that all of this Russian hack never happened, but we have some more evidence coming out recently.

We haven’t published it yet, but what we have seen is that there are at least five items that we’ve found that were produced by Guccifer 2.0 back on June 15th, where they had the Russian fingerprints in them, suggesting the Russians made the hack. Well, we found the same five items published by Wikileaks in the Podesta emails. Those items do not have the Russian fingerprints, which directly implies that Guccifer 2.0 was inserting these into the files to make it look like the Russians did this hack.

Taking that into account with all the other evidence we have; like the download speeds from Guccifer 2.0 were too fast, and they couldn’t be managed by the web; and that the files he was putting together and saying that he actually hacked, the two files he said he had were really one file, and he was playing with the data; moving it to two different files to claim two hacks. Taking that into account with the fabrication of the Russian fingerprints, it leads us back to inferring that in fact the marble framework out of the Vault 7 compromise of CIA hacking routines was a possible user in this case.

In other words, it looked like the CIA did this, and that it was a matter of the CIA making it look like the Russians were doing the hack. So, when you look at that and also look at the DNC emails that were published by Wikileaks that have this FAT-file format in them, all 35,813 of these emails have rounded off times to the nearest even second. That’s a FAT-file format property; that argues that those files were, in fact, downloaded to a thumb drive or CD-rom and physically transported before Wikileaks posted them.

Which again argues that it wasn’t a hack.

So, all of the evidence we’re finding is clearly evidence that the Russians were not in fact hacking; it was probably our own people.

It’s very hard for us to get this kind of information out. The mainstream media won’t cover it; none of them will. It’s very hard. We get some bloggers to do that and some radio shows.

Also, I put all of this into a sworn affidavit in the Roger Stone case.

I did that because all of the attack on him was predicated on him being connected with this Russian hack which was false to being with. All the evidence we’re accumulating clearly says and implies, the US government — namely the FBI, CIA, the DOJ, and of course State Department — all these people involved in this hack, bought a dossier and all of the information going forward to the FISA court.

All of them knew that this was a fake from the very beginning, because this Guccifer 2.0 character was fabricating it. They were using him plus the Internet Research Agency [IRA] as “supposed trolls of the Russian government”. Well, when they sent their lawyers over to challenge that in a court of law, the government failed to prove they had any connection with the Russian government. They basically were chastised by the judge for fabricating a charge against this company. So, if you take the IRA and the trolls away from that argument, and Guccifer 2.0, then the entire Mueller report is a provable fabrication; because it’s based on Guccifer 2.0 and the IRA. Then the entire Rosenstein indictment is also a fabrication and a fake and a fraud for the same reasons. The judges seem to be involved in trying to keep this information out of the public domain.

So, we have a really extensive shadow government here at work, trying to keep the understanding and knowledge of what’s really happening away from the public of the United States. That’s the really bad part. And the mainstream media is a participant in this; they’re culpable.

*  *  *

The CIA-edited and written Wikipedia, in its article about Binney, accuses him by saying — while providing no footnote or linked-to source for their allegation against him — “His dissent from the consensus view that Russia interfered with the 2016 US election appears to be based on Russian disinformation.” Ever since Binney went public criticizing U.S. intelligence agencies, they have been trying to discredit him. Thus far, however, their efforts have been nothing more than insinuations against his person, without any specific allegation of counter-evidence that discredits any of his actual assertions.

*  *  *

Investigative historian Eric Zuesse is the author, most recently, of  They’re Not Even Close: The Democratic vs. Republican Economic Records, 1910-2010, and of  CHRIST’S VENTRILOQUISTS: The Event that Created Christianity.


Tyler Durden

Thu, 12/19/2019 – 00:05

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After Five Years, Sweden Is About To Wave Goodbye To Negative Rates

After Five Years, Sweden Is About To Wave Goodbye To Negative Rates

In a few hours, at 10am GMT, Sweden is about to wave goodbye to the land of negative rates, if only for a little while.

After the Swedish Riksbank cut rates as low as -0.5%, where it kept them for nearly three years, from 2016 until the start of 2019, when it hiked by 25bps on January, the Swedish Central bank is almost unanimously expected to hike rates by 25bps to 0.0% according almost all analysts polled by Reuters, putting its experiment with NIRP in the rearview mirror, at least until the next cut by the ECB drags it right back under.

As RanSquawk previews, if the Riksbank does hike as expected, focus will turn to if this is as their October repo path indicates a one-and-done increase to move out of negative rates, as well as the magnitude of opposition to the hike. This meeting includes a press conference which will begin at 10:00GMT.

Previous Meeting

In October, the Riksbank left rates unchanged at -0.25% but clearly signaled that the rate would ‘most probably’ be hiked to 0.0% in December’s meeting. Additionally, their forecast for the repo rate was downgraded, and now indicates that the rate will ‘be unchanged for a prolonged period after the expected rise in December’. In the post-meeting press conference,  Governor Ingves said that negative rates were an exceptional measure and it is appropriate to gradually exit from negative rates.

Minutes & Rhetoric

While the October meeting and conference illustrated a desire to hike, the minutes were less in-fitting with this and highlighted a split amongst the board. Most notably, Skingsley said it is justifiable to ask whether it is appropriate to increase rates at all and one member expressed hesitance at hiking around year-end; instead, argued for such a move to be further down the forecast period.

Aside from the minutes, remarks out of the Riksbank has been fairly light; the most pertinent of comments, which question the December move, arising from Jansson stating that if the rate was to increase around year-end it may be perceived as the Bank deviating from its mandate. While not rhetoric in the traditional sense, the Central Bank Financial Market Survey indicated that several participants believe a less expansionary policy would improve the function of FX and Fixed income markets. Overall, while the pushback from the more Dovish members of the Riksbank is unlikely to be sufficient to alter the flagged hike it does open-up the potential for dissenters.

Data

The most pertinent release has been November’s CPIF which beat market expectation printing at 1.7% which is crucially in-line with the Riksbanks November forecast (1.71%); which according to Nordea emphasizes the likelihood of a December hike. Other metrics have been more downbeat, and do not support the planned hike, such as PMIs, Q3 GDP and November’s unemployment rate which rose from 6.0% to 6.8%. That said, Swedish labor market data has been affected by errors recently which ING suggests may lead to the Riksbank treating this with some skepticism. Overall, the domestic data front is not conducive to an interest rate increase, as such consensus is for any hike to be a one-off move, as the October forecast path suggested.

Deputy Governor Breman

Since the previous meeting Anna Breman has been appointed as Deputy Governor to replace af Jochnick, Breman will be partaking in the December policy meeting. Breman has previously expressed concern regarding a weak SEK and believes the Riksbank, with negative rate policy, has a limited tool-kit in the scenario of an economic downturn. For reference, Nordea highlight that her monetary policy stance is difficult to categorise and she is likely to follow the majority initially which, overall, makes the board more hawkish. 


Tyler Durden

Wed, 12/18/2019 – 23:45

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“We Can’t Wait To See This Bird Fly!”: NASA’s X-59 Quiet SuperSonic Jet Cleared For Final Assembly

“We Can’t Wait To See This Bird Fly!”: NASA’s X-59 Quiet SuperSonic Jet Cleared For Final Assembly

NASA’s X-59 Quiet SuperSonic Technology (QueSST) plane has been cleared for large scale assembly, said a NASA press release, dated Dec. 12.  

NASA will build the X-59 in partnership with Lockheed Martin and start test flights in 2021. The goal of the flights is to reduce the noise a sonic boom makes to a sonic thump, or basically as loud as a car door.

Tests are expected to occur over major US metro areas as the X-59 cruises at 940 mph at 55,000 feet.

The X-59’s long, slender design will allow it to reduce the loudness of a sonic boom to that of a gentle thump.

“This aircraft has the potential to transform aviation in the United States and around the world by making faster-than-sound air travel overland possible for everyone,” NASA Administrator Jim Bridenstine recently said.

“We can’t wait to see this bird fly!”

The X-59 will cost about $250 million to construct, Lockheed Martin’s Skunk Works factory in Palmdale, California, will be responsible for the build. 

Skunk Works has also been responsible for developing some of the most secretive aircraft in the world, including the Lockheed U-2, Lockheed F-117 Nighthawk, and Lockheed SR-71 Blackbird. 

NASA’s decision to approve the X-59 for assembly is the first experimental plane to be cleared in more than three decades.

The Key Decision Point-D (KDP-D) was the last obstacle for the X-59 before officials reconvene in 4Q20 before the plane’s flight in 2021. 

“With the completion of KDP-D we’ve shown the project is on schedule, it’s well planned and on track. We have everything in place to continue this historic research mission for the nation’s air-traveling public,” said Bob Pearce, NASA’s associate administrator for Aeronautics.

With the construction of the X-59 already underway at Skunk Works, by late 2021, the world will know if the technology can actually reduce the noise of a sonic boom. If so, then this could pave the way for the reintroduction of supersonic flight for commercial airliners by 2030. 


Tyler Durden

Wed, 12/18/2019 – 23:25

via ZeroHedge News https://ift.tt/2EB4Oq8 Tyler Durden

Politicians Are Addicted to Price Controls

Despite overwhelming historical evidence demonstrating the folly of government-imposed price controls, modern politicians just can’t seem to quit inflicting them on us. One obvious example involves health care, where price controls on prescription medications always seem to be just around the corner and are now being considered in the rush to eliminate surprise medical bills. Fewer people know about similar efforts regarding the aluminum market, where some politicians are contemplating price controls to compensate victims of the trade war.

Back in March 2018, President Donald Trump announced that he would impose a 10 percent tariff on all imported aluminum (unless an exemption was later granted by the Department of Commerce).

Tariffs have increased the price of aluminum at great expense to metal consumers, and their complaints haven’t fallen on deaf ears. Unfortunately, well-meaning politicians have chosen the wrong path. Instead of fighting the president and demanding an end to the tariffs, they have devised a scheme meant to control the price of aluminum.

The Aluminum Pricing Examination Act targets firms that report on domestic aluminum market transactions. The firms in question merely provide information that benefits both buyers and sellers. But politicians are threatening to bring these firms’ functions under control of the Commodity Futures Trading Commission to satisfy aluminum users who are unhappy with the current trajectory of prices.

It’s understandable that beer brewers and others demanding intervention from elected officials aren’t pleased with rising aluminum prices. But prices reflect underlying market realities that can’t be changed simply by bringing political pressure to bear on those who monitor and report on them. It may come as a surprise to politicians, but removing your fire alarms won’t prevent fires.

This is a common political mistake, as price controls have existed for nearly as long as governments. The Code of Hammurabi, for instance, included a list of mandated prices for many types of labor and services circa 1754 B.C. Other historical examples can be found in ancient Egypt, Greece, and China, each providing ample evidence for the folly of government restrictions on price movements.

But for those elected officials not up on their ancient economic history, there’s no shortage of modern cases from which to learn.

President Richard Nixon thought he could fight inflation with a 90-day freeze on wages and prices, promising “action that will break the vicious circle of spiraling prices and costs.” After the freeze, increases would need the approval of either a “Pay Board” or “Price Commission.” Today, this sounds crazy, but Nixon wasn’t on an island. Markets rallied following his announcement, and the press ate it up.

The result was absolutely disastrous. Inflation—which, at just over 4 percent annually in 1971, wasn’t unreasonably high—shot up into the double digits by the time the controls were lifted.

Nixon’s controls on gasoline persisted through the Carter administration. Domestic exploration and production declined sharply, leading to an influx of foreign oil and long lines at the pumps that many still remember. When President Ronald Reagan finally ended the controls as one of his very first official acts as president, the gas lines immediately ended and gas prices soon plummeted.
Some price controls are ongoing. Rent control has devastated housing markets, particularly in New York and California, by distorting supply and demand. A few lucky individuals make out well, but studies consistently show that almost everyone else—especially would-be renters—will suffer because there’s less incentive to build new housing.

Why do price controls always produce the same result? It’s not complicated, really. Prices give us incentives to produce and consume goods in economically sustainable ways. They convey information.

High prices, for example, signal where more of a particular good is needed. We see this most clearly following natural disasters or other unexpected shocks, which is why anti-price-gouging regulations are counterproductive.

Providing false signals through mandates for artificially low or high prices results in poor market performance. As Nobel Prize-winning economist Milton Friedman best explained, “Economists may not know much. But we know one thing very well: how to produce surpluses and shortages. Do you want a surplus? Have the government legislate a minimum price that is above the price that would otherwise prevail … Do you want a shortage? Have the government legislate a maximum price that is below the price that would otherwise prevail.”

If he’s right that economists don’t know much, then politicians must know even less.

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Camera Footage Of Epstein’s First Suicide Attempt Has Disappeared, And Nobody Knows Why

Camera Footage Of Epstein’s First Suicide Attempt Has Disappeared, And Nobody Knows Why

Authored by Paul Joseph Watson via Summit News,

Surveillance footage showing Jeffrey Epstein’s first alleged suicide attempt has “gone missing.”

On July 23, Epstein was sharing a cell with Nick Tartaglione when the disgraced sex trafficker apparently tried to hang himself. Epstein subsequently claimed that Tartaglione, a former cop accused of killing four people in a botched drug deal, had tried to kill him.

However, when Bruce Barket, Tartaglione’s lawyer, requested surveillance footage from the cell at the Metropolitan Correctional Center (which he had formally requested be preserved two days after the suicide attempt), he was told it had disappeared…

“We asked for all the video and photographic evidence to be preserved, specifically this surveillance video. Now it’s gone,” said Attorney Bruce Barket.

“I don’t know the details of how it was lost or destroyed or why it wasn’t retained when it should have been.”

The video footage was relevant to Tartaglione’s defense because it is potentially evidence of the ex-cop’s good character.

“It is on the surface troubling,” Barket added.

“I’ll reserve judgement until I’ve found out more details.”

According to TMZ, the feds had no explanation for why the footage has gone missing, they said they simply can’t find it.

More “mistakes”?

The judge, helpfully, told prosecutors to look further into what happened to it.

Finally, remember: There are no conspiracies and you can trust the authorities and the mainstream media… and, also, Epstein didn’t kill himself.

*  *  *

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Tyler Durden

Wed, 12/18/2019 – 23:05

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Australian Government Created Bizarre Horoscope To Scare Illegal Aliens

Australian Government Created Bizarre Horoscope To Scare Illegal Aliens

The Australian government has created a bizarre horoscope to spook illegal immigrants from Sri Lanka – threatening bad omens if they make an unauthorized trek in to the land down under, according to BuzzFeed News.

Sagittarius? “If you illegally travel to Australia by boat you will be returned. Everything you risked to get there will be in vain and you will end up owing everyone,” reads the horoscope.

Gemini? “You will lose your wife’s jewellery…

Taurus? “If you illegally travel to Australia by boat, expect to be returned home where you will face the humiliation of failure in your community.

The horoscope poster was released under a freedom of information application for copies of printed advertising material in English to dissuade people smugglers and asylum seekers trying to reach Australia between 2013 and 2019.

The Department of Home Affairs did not respond to questions about when and where the horoscope poster was displayed.

However, the poster itself gives a few clues, suggesting it was distributed in Sri Lanka within the last few years.

“It is almost four years since any Sri Lankan person reached Australia on an illegal boat voyage,” the poster says. “During this period, Australian authorities have stopped and returned more than 160 Sri Lankans who tried to go to Australia illegally by boat.”

As part of the Operation Sovereign Borders policy, Australian immigration officers turn back any boats with asylum seekers on board to its country of origin without hearing their refugee claims. –BuzzFeed

Here are the horoscopes in full (via BuzzFeed).

ARIES: Criminals will rip you off

If you attempt to illegally travel to Australia by boat, expect people smugglers to take advantage of you. These criminals will take your money and you will be returned to Sri Lanka with nothing.

AQUARIUS: You and your family will lose everything

If you risk everything you and your family have built together to pay for an illegal boat voyage to Australia, you will be stopped and returned to Sri Lanka. You will suffer hardship and have nothing but bad luck.

SAGITTARIUS: You will be in debt forever

If you illegally travel to Australia by boat you will be returned. Everything you risked to get there will be in vain and you will end up owing everyone.

TAURUS: You will be ashamed of your actions

If you illegally travel to Australia by boat, expect to be returned home where you will face the humiliation of failure in your community. Bad luck will strike you if you try to perform this illegal deed.

VIRGO: You will have legal problems

If you illegally travel to Australia by boat you will be stopped and returned to face the legal consequences. Going through with this illegal act will bring you nothing but bad luck and regret for your actions.

CAPRICORN: You will put your life at risk

Deciding to risk your life on dangerous seas and unpredictable weather will be in vain. If you travel illegally to Australia, you will be returned to Sri Lanka and encounter a storm of bad luck.

GEMINI: You will lose your wife’s jewellery

Bad luck will come your way if you travel illegally to Australia by boat. Expect to lose everything you’ve pawned to pay for this pointless enterprise.

LIBRA: You will flush your money down the drain

Your luck is bad. You cannot illegally travel to Australia by boat as you will be stopped and returned, and all the money you spent getting there will be wasted.

CANCER: Family problems will occur

Luck is not in the cards for you. Do not try to travel illegally to Australia by boat, as you will be stopped and returned. You will lose everything your family owes to debt, and face family problems.

SCORPIO: You will waste your money

If you naively trust people smugglers’ lies and attempt illegal travel to Australia by boat, you will be returned to Sri Lanka and lose everything you put on the line to get there.

LEO: You will be filled with regret

If you attempt illegal travel to Australia by boat, you will be returned to face legal consequences for your illegal travel. Commit such a crime and expect nothing but bad luck.

PISCES: You will lose your family’s land

If you travel illegally to Australia by boat you will be returned. The money you got from mortgaging your family’s land will be wasted right before your eyes.


Tyler Durden

Wed, 12/18/2019 – 22:45

via ZeroHedge News https://ift.tt/2Z3bNBF Tyler Durden

Russian Uran-9 Combat Robot Deployment In Syria: Results, Issues And Prospects

Russian Uran-9 Combat Robot Deployment In Syria: Results, Issues And Prospects

Submitted by SouthFront,

In late 2019, photos and footage showing Russia’s Uran-9 combat robot deployed in Syria appeared online. They became a rare visual evidence of the Uran-9 combat deployment in the war-torn country, which, according to official sources, took place in 2018.

The Uran-9 multipurpose unmanned ground combat vehicle was officially unveiled by Russian military equipment manufacturer JSC 766 UPTK during the Army-2016 International Military-Technical Forum in Russia in September 2016. The vehicle is designed to provide remote reconnaissance and fire support to a variety of tasks conducted by the counter-terrorism, reconnaissance and military units in urban environments.

The Uran-9 can be used fully autonomously on a predefined road or manually operated by one man from a truck control station or via a small backpack control station.

Back in 2016, the Uran-9 was armed with a 30mm Shipunov 2A72 automatic cannon, four ready-to-launch 9M120-1 Ataka (NATO reporting name: Spiral-2) anti-tank guided missiles (ATGM), six ready-to-launch Shmel-M reactive flamethrowers. and a 7.62mm Kalashnikov PKT/PKTM coaxial machine gun mounted to the left side of the main armament. The Uran-9 can be also armed with four Igla surface-to-air missiles.

There are two Ataka missile launchers and three Shmel-M on each side of the turret. The Ataka missile has an operational range from 400 m to 6 km, and is capable of penetrating armour to a depth of 800mm behind explosive reactive armour (ERA).

The Uran-9 unmanned ground combat vehicle has the ability to resist firing of small arms ammunition and shell splinters. The steel armour plates of the hull offer protection for the vehicle suspension.

The robotic system is equipped with various remote-controlled sensor modules such as laser warning system, and electro-optic and thermal imaging cameras. It has an onboard fire control system, comprised of automatic target detection, identification and tracking devices, as well as a ballistic computer. The systems are able to detect and track targets at a distance of up to 6 km during the day and 3 km during the night.

The Uran-9 has two operation modes – autonomous and manual. In autonomous it can automatically identify, detect, track and defeat enemy targets based on the pre-programmed path set by the operator. The Uran-9 robot is manually controlled by a single operator from a mobile command and control station mounted on a 6×6 tactical truck from a safe distance of 3km.

The Uran-9 is powered by a diesel-electric power source, which provides a maximum speed of 35 km/h on a highway, and a max speed of 25 km/h cross-country. In off-road conditions it moves slow, at only 10 km/h. The robot’s tracked chassis offers increased cross-country mobility. The average specific ground pressure is 0.6kg/sq.

The Uran-9 was commissioned in the Russian Armed Forces in January 2019, whereas it was tested in Syria in 2018. It furthermore was used during the Vostok-2018 military exercise.

In June 2018, RIA Novosti reported that some shortcomings in the combat capability of the Uran-9 were established, while it was being used in Syria.

Military experts discovered flaws in the control, mobility, firepower, intelligence and surveillance functions of the robot. In addition, with the independent movement of Uran-9, a low reliability of the running gear – track rollers and guide rollers, as well as suspension springs were discovered.

The robot also showed the unstable operation of a 30-mm automatic gun, untimely triggering of the start circuits, and the failure of the thermal imaging channel of the optical sighting station.

In April 2019, Interfax cited the Deputy Chief of the General Staff of the RF Armed Forces, Chairman of the Military Scientific Committee of the Armed Forces, Lieutenant General Igor Makushev who said that the deficiencies in the robot were all removed by the development team.

In 2019, there were more issues with the Uran-9, it allegedly had problems with losing connection to the command post. Unlike flying drones, the control signal of a radio-controlled machine can be lost when passing through mountains, buildings and other objects. During tests in Syria, this led to a loss of the signal approximately 17 times for 1 minute, and twice the connection with the combat robot was lost for an hour and a half.

Reportedly, problems with rollers and suspension springs may occur in the Uran-9’s undercarriage, which is why the robot needs frequent repairs and cannot be used for a long time. But the biggest problem remains that the remote-control system reportedly works at a distance of no more than 300-400 meters instead of the promised 3 kilometers.

Upwards of 20 units of the Uran-9 have been constructed as of December 2019, and the deployment in Syria was generally regarded as positive and successful. Even if the reports of the issues were true, they could be rectified in short-term development.

There is no breakthrough in the development and deployment of unmanned systems. Nonetheless, the approach demonstrated by the Russian Armed Forces is interesting because the Russian side works on the development and deployment of not separate robotic systems, but rather groups of robotic systems controlled by a unified control system within a single intelligent network. The composition of these groups can be adapted depending on tasks that they had to achieve on the battlefield. Furthermore, significant efforts were and some successes was already achieved in the task of allowing these robotic systems to operate autonomously within the group to fulfill the assigned task. This is the first step on a long road of creating a swarm of fully autonomous robotic systems that can perform assigned tasks without a direct involvement of operators. The Kungas robotic complex and the Okhotnik heavy unmanned aerial vehicle are the most vocal examples of this approach.

Another point is the functionalism of the Russian projects. Instead of pushing ahead military robot dogs or tiny combat drones (all these directions have apparent issues taking into account the current technological progress), the Russian military chose straightforward and effective decisions employing relatively large tracked platforms that do not require non-existing engineering solutions. This allowed Moscow to focus on what really matters: the employment of robotic systems in combat conditions and the development of their fully autonomous solutions.


Tyler Durden

Wed, 12/18/2019 – 22:25

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