Bianco: Central Banks Are The Biggest Risk To The Economy In 2020

Bianco: Central Banks Are The Biggest Risk To The Economy In 2020

Authored by Jim Bianco, op-ed via Bloomberg.com,

The Fed’s reaction to the disruption in repo markets shows how hard it will be for policy makers to reverse their ‘money printing’…

The U.S. economic recovery that began in June 2009 is now in its 127th month, which is a record. Even more impressive is that for the first time since the signing of the Declaration of Independence in 1776, the U.S.  just completed the first calendar decade without even one day of a recession. There are a few key reasons why this is happening, and one clear risk that could bring the expansion to an end.

The natural trend for an economy is to grow. A recession only occurs when something “breaks.” So, this record expansion is happening because nothing has broken. The primary reason is new technology that gives businesses more flexibility to adapt to changing conditions.

Technology is also preventing faster inflation in the developed world, a major cause of recessions in the past. Pricing has become hyper-competitive (think of the “Amazon effect”) and the internet allows for product substitution at lighting speed. Unhappy with a Chinese supplier? A quick Google search or a Skype call will quickly help you find a Vietnam substitute at virtually no cost.

Breaking things, in the literal sense, is also at an all-time low. Major powers have been at war with each almost continuously for over 500 years. But starting in 2000, they have stopped fighting in an unprecedented period of peace in human history.

Another leading cause for breaking an economy has been rapidly rising energy prices. Crude oil at $147 a barrel was concurrent with the Great Recession in 2008. But this is changing. Abundant energy supplies due to new fracking technologies are reducing the threat of a supply shock. Bloomberg News reported that November was the first month in 70 years that the U.S. was a net petroleum exporter.

And note the muted response in energy markets to the drone attack on Saudi oil facilities in Abqaiq in September. Forecasts that the attack would cause oil prices to spike to $100 were not entirely unfounded, as that would have happened in the past, when supplies were not nearly as flexible. Instead, Brent crude is holding below $70 a barrel.

All of these are powerful, but standard, reasons for why the economy is stable. There is, however, an unconventional source of strength that emerged in the last decade that also doubles as its biggest risk: central banks. As of November, the collective balance-sheet assets of the Federal Reserve, European Central Bank, Bank of Japan and Bank of England stood at 35.9% of their countries’ total gross domestic product, up from about 10% in 2008, according to data compiled by Bloomberg.

Printing Press

The Fed, ECB, BOJ and BOE have pumped trillions of dollars into the global financial system in recent years

Source: Bloomberg

At the same time, the latest World Bank data show that developed country GDP expanded to $54.2 trillion at the end of 2018 from $46.1 trillion a decade earlier. Restated, central bank balance sheets grew at faster rate, by $9.9 trillion, than their underlying economies, which have expanded by $8.1 trillion, which is a big reversal from the 2001 to 2006 period.

Not Keeping Up

Major economies haven’t grown as fast as central bank balance sheets

Source: Bloomberg, World Bank (55K = $55 trillion)

It’s hard quantify just how much of this combined “money printing” by central banks contributed to GDP growth, but most would agree that it ranges anywhere from “some” to “much.”

So, what happens when central banks pull back from this stimulus? When the Federal Reserve hinted in late 2018 that they were going to increase interest rates several more times in 2019, and the balance sheet reduction was on “automatic pilot,” the S&P 500 Index plunged almost 20% and recession fears became prevalent.

And when the Fed partly reversed its stance in early 2019, suggesting it wouldn’t increase rates, recession fears receded and stocks soared to post one of their best years ever in terms of returns.

But the Fed kept shrinking its balance sheet, and by September the repo market ran into trouble. The central bank was forced to reverse here, too, and has boosted its assets by more than $400 billion, a move that coincided with the strong fourth-quarter rally in riskier assets such as equities. The takeaway here is that it will be extremely hard for central banks to reverse “money printing.”

With inflation doormat, though, there is no need for central banks to start tightening monetary policies anytime soon and “break” the economy. But should policy makers get their wish and some inflation returns, then it would be time to worry.

Central bankers try to operate under the Hippocratic Oath: “First, do no harm.” We will not know if they have caused any harm until they reverse their unprecedented balance sheet expansion without incident. The Fed’s recent experience is not encouraging.


Tyler Durden

Fri, 01/03/2020 – 16:25

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Dick Wolf’s Parade of Cookie-Cutter Police Shows Marches On with FBI: Most Wanted

FBI: Most Wanted. CBS. Tuesday, January 7, 10 p.m.

In a zillion-channel television universe where nothing ever really disappears, the desiccated remains of 78 seasons of Dick Wolf’s Law & Order shows, including various spinoffs and foreign versions (What? You don’t binge-watch  Закон и Порядок. Преступный умысел?), shamble through every dark alley and seedy tenement, emitting ghoulish mating shrieks for their paramours, the 28 seasons of Wolf’s Chicago urban-dysfunction shows. The longest-running live-action character in TV history is L&O: Special Victims Unit‘s rape-busting detective Olivia Benson, who in real life would have surely taken her pension last year after 20 seasons on the air. (She didn’t.)

So perhaps it was inevitable that Wolf’s newest showFBI, would clone itself and turn into yet another franchise. That doesn’t mean we have to like it. And please, I’m begging you, don’t. It’s not fair. There are scores, probably hundreds, of producers out there capable of turning out cookie-cutter, station-house dramas with dialogue that could be contained on bubble-gum comics and plots with the fervor and complexity of a kindergarten Candy Land tournament. Why should Wolf get to do them all?  And anyway, this is not an onerous request. Not liking CBS’ FBI: Most Wanted is as easy as falling off a log, and much less painful.

Wolf fans, of whom there are, obviously, millions, react fiercely when somebody says his shows are dull and repetitive. And there are occasional exceptions. I once tuned into the middle of an SVU episode to discover a reporter shouting at a villainess, “Charmaine, Charmaine! How much did you pay for the rectal probe?” (Don’t ask. I did and discovered the answer had something to do with the old “electro-probe anal erectile procedure” plot twist.)

But, generally speaking, Wolf’s dramas—especially the crime procedurals, a genre he invented—are unmistakably his work. They feature terse, rage-prone cops and unmitigatedly evil villains, inclined to spend their time on car chases and shootouts rather than the contemplation of moral ambiguity. The plots are almost inevitably simple enough to be resolved in a 42-minute television hour, because multi-episode story arcs don’t play well in syndication, which is where Wolf’s shows make their real money. (For the same reason, temporal references are almost non-existent; watching an L&O episode, you can’t tell if the president is Trump, Obama, or, except for the absence of waistcoats, McKinley.)

That’s pretty much what FBI: Most Wanted is like, except more so. Agent Jess LaCroix (Julian McMahon, so good as the sexually slimy plastic surgeon of Nip/Tuck, so woodenly abysmal here), the head of the FBI Fugitive Task Force, is perhaps the dumbest cluck Wolf has ever created. His management technique consists of giving his team pithy descriptions of the character of whatever criminal is under pursuit—”skill and depravity” or “ruthless and daring” or “arrogant narcissist”—followed by the keenest investigative tips since Dick Tracy’s Crimestoppers Textbook made Sunday newspapers worth reading. Told a mass-murdering street-gang boss is on the loose, LaCroix alertly inquires: “Do we have his home address?” And his knowledge of federal procedural rules is literally unchallengeable. I kept expecting him to charge into a crime scene screaming, “Jurisdicton? We don’t need no stinkin’ jurisdiction!”

My own contribution to the Crimestoppers Textbook is that whenever you see that LaCroix is about to speak to his agents, reach quickly for the volume control; he never speaks to them in anything but a bark. Yet as Wolfe’s characters go, LaCroix is a marvel of multidimensionality. He also barks at suspects, prosecutors, witnesses and suspicious cloud formations. Look for LaCroix to be a principal in further Wolf clones, including FBI: Ruby Ridge, and FBI: Comey’s Safe.

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Stocks Shrug Off World War 3 Risk, But Bonds, Bullion, & Bitcoin Surge To Start The Year

Stocks Shrug Off World War 3 Risk, But Bonds, Bullion, & Bitcoin Surge To Start The Year

World War 3 worries? Meh, we’ve got The Fed to handle that shit!!

Weakness in early going in stocks – due to the potential for global war after Soleimani’s killing – were nothing but an opportunity to buy the f**king dip once again today…(as the machines used VWAP as support)…

As the market immediately priced in a Fed rate-cut to save the world…

Source: Bloomberg

Oil prices spiked but ended only around 3% higher on the day…

Of course, defense stocks soared…

Source: Bloomberg

But bonds and bullion were bid as safe-havens…

On the week, only Nasdaq is notably higher…

And since the start of 2020, only Small Caps are red…

VIX and stocks remain decoupled…

Source: Bloomberg

Credit markets widened notably today, relatively more than equity protection…

Source: Bloomberg

Treasury yields collapsed since the start of 2020 with 30Y yields down 13bps…

Source: Bloomberg

The 30Y Yield dropped to 4-week lows…

Source: Bloomberg

The yield curve flattened dramatically…

Source: Bloomberg

The dollar rallied for the second day in a row (despite some volatility today)…

Source: Bloomberg

Cryptos were notably bid today following the Soleimani killing…

Source: Bloomberg

After another drop below $7k, Bitcoin surged today…

Source: Bloomberg

Copper tumbled today as gold and oil rallied…

Source: Bloomberg

Gold topped $1550 – back to its highest in 4 months…

And as Bloomberg reports, heightened Middle East tensions are boosting bets on further gains for gold as a haven asset. Volatility in call options giving holders the right to buy futures at a pre-set price reached the highest in almost three months against puts, which provide the right to sell the metal.

The skew shows that investors are increasingly bullish on bullion, even with prices already near a six-year high in the wake of the U.S. air strike that killed a top Iranian commander.

Source: Bloomberg

Finally, US macro data is negative and disappointing notably (today’s ISM at 10 year lows) with stocks just shy of record highs…

Source: Bloomberg

And some remember what happened last time…

Source: Bloomberg

 


Tyler Durden

Fri, 01/03/2020 – 16:01

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NYT Floated Soleimani Assassination Scenario In Baghdad Hours Before Strike

NYT Floated Soleimani Assassination Scenario in Baghdad Hours Before Strike

Hours before a US strike at Baghdad’s International Airport killed Iran’s top military leader, Qasem Soleimani, former Obama National Security Council (NSC) official Steven Simon posited in a New York Times Op-Ed that Soleimani could be assassinated using a hypersonic missile while visiting Baghdad.

[H]ypersonics are a weaponized moral hazard for states with a taste for intervention, because they erase barriers to picking fights. Is an adversary building something that might be a weapons factory? Is there an individual in an unfriendly country who cannot be apprehended? What if the former commander of Iran’s Revolutionary Guards, Qassem Soleimani, visits Baghdad for a meeting and you know the address? The temptations to use hypersonic missiles will be many.

Oddly, he describes Soleimani as the “former commander of Iran’s Revolutionary Guards,” when he was in fact in charge of the Guards’ Quds Force until his death.

The Times tweeted the article at 1:38 p.m. EST, several hours before the strike.

While US officials told Reuters that a drone – not a hypersonic weapon – took out Soleimani, it’s incredibly curious that Simon, Obama’s former senior director for the Middle East and North Africa on the National Security Council, wrote of his assassination literally hours before it happened, where he suggested it might happen.

According to his bio, Simon is an adjunct senior fellow for Middle Eastern studies at the Council on Foreign Relations (CFR), as well as an adjunct professor of security studies at Georgetown University.

He was also a Goldman Sachs visiting professor of policy at Princeton University, as well as the deputy director of the International Institute for Strategic Studies and a senior analyst at the RAND corporation.

Interestingly, in 2017 RAND tweeted “Study: Hypersonic missiles are a game changer,” the exact same headline as Simon’s NYT Op-Ed.


Tyler Durden

Fri, 01/03/2020 – 15:45

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Short Circuit: A Roundup of Recent Federal Court Decisions

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

New on the podcast: Maryland political advertising, Texas liquor protectionism, and sham review of Louisiana habeas petitions. (Click here for Apple Podcasts.)

  • Aluminum sheet manufacturer changes its overtime policy, requiring its unionized workers to sign up for overtime a week in advance. Union members protest by refusing to sign up for overtime, and one disgruntled union member expresses his displeasure by scrawling “whore board” above the overtime sign-up sheets, leading to his suspension and eventual firing. NLRB: Defacing company property with the words “whore board” was protected activity related to the protest of the new overtime rules. D.C. Circuit: That’s right, but the NLRB ignored the company’s argument that it had an obligation to maintain a harassment-free workplace, so the Board should take another look.
  • ISIS-supporting Staten Island, N.Y. man conspires to commit domestic terrorist attack against police, tries to stab FBI agent. His resulting sentencing guidelines sentence is 85 years’ imprisonment. District court: 17 years is long enough. Second Circuit: That is a “shockingly low sentence.” The case is remanded for resentencing. Partial dissent: “I fear the majority would prefer to substitute its sentencing preference for that of the District Court.”
  • Food meant for local jail winds up in jail supervisor’s Hattiesburg, Miss. restaurant. A month after the supervisor and his wife are sentenced (several years in prison plus six figures of restitution) for hiding income from IRS, federal agents who worked on the case give local news interview. The couple sues the agents in state court for slander. Fifth Circuit: The feds appropriately removed the case to federal court—where it must be thrown out because the couple didn’t file a particular piece of paper required in federal tort cases.
  • Fifth Circuit: We’re not saying that this diabetic prisoner in Texarkana, Tex. federal prison who broke his ankle and went without effective medical care for a weekend and then served 93 days in segregated housing after he complained doesn’t have a Bivens claim. But if he didn’t, it would be for the reasons expressed in this 450-word footnote. Concurrence: Well, I’m saying he doesn’t have a Bivens claim for the reasons expressed in that 450-word footnote.
  • Livonia, Mich. undercover cop sees “beat-up minivan” late on winter night, has a hunch that crime is afoot. He calls uniformed cops, and they—after noting the minivan’s three occupants are black men—tail the minivan across three jurisdictions, eventually stopping the men as they are leaving a store (where they bought space heaters). Yikes! One of the men has concealed weapon, for which his permit has expired. He’s arrested. (All charges are dropped after state court finds the stop unconstitutional.) The man then sues the cops, claiming violations of both the Fourth and Fourteenth amendments. Sixth Circuit: Qualified immunity for the uniformed cops but not the undercover cop. Partial dissent: A jury might find the uniformed cops also targeted the group for “shopping while black.”
  • Woman asks a friend to look after her 15 dogs while she’s away. The friend notifies authorities of the appalling conditions the dogs are living in. Montgomery County, Tenn. animal control enters, takes photos, removes the dogs. After the photos are disseminated publicly, the woman loses her job. But the animal cruelty charges against her are dropped after the search of her home is determined to be unconstitutional. (Five of the dogs are returned to her.) Can she sue various officers and the county for violating the Fourth and Fourteenth amendments? The Sixth Circuit says no.
  • Bibi Von Sonnenberg, a German Shepherd of esteemed lineage, escapes from her backyard. North Little Rock, Ark. animal control finds her, destroys her breeding value by spaying her, and gives her up for adoption—even though a simple microchip scan would’ve revealed the identity of her owner. Owner: The state must give notice before deprivations of canine property. Eighth Circuit: Very immunity. So summary judgment.
  • Does the word “diet” mean “assisting with weight loss” such that soft drinks like “Diet” Dr Pepper are committing false advertising? The Ninth Circuit says no.
  • Las Cruces, N.M. police officer: Who could possibly have known that it violates an arrestee’s rights to put him in the back of a squad car, hands cuffed behind his back and with no seatbelt, and then to intentionally drive recklessly so that he is slammed back and forth, injuring his shoulder, and then to deny him medical treatment for more than two hours despite medical treatment being readily available? Tenth Circuit: You. You could have known that. No qualified immunity.
  • Allegation: Homeless man rides his bike across the property of a defunct Cartersville, Ga. elementary school to get to the adjacent storage unit in which he lives. Within 60 seconds of entering the school property he is detained and arrested for criminal trespass. (There were no warning signs against trespassing.) The charges are eventually dropped. Arresting officer: You can’t sue me for false arrest because you pleaded guilty to a crime! Eleventh Circuit: Yeah, in a totally unrelated case that had nothing to do with the crime you arrested him for. Case remanded. (#appellatetwitter content warning: The opinion repeatedly uses “pled” instead of “pleaded.”)
  • And in en banc news, the Tenth Circuit will not reconsider its decision that the Takings Clause is not implicated when a SWAT team blows up an innocent person’s house in pursuit of a fugitive. (This is an IJ case.)

Attention 1Ls and 2Ls! Every summer, IJ hires law students to work in our offices in Arlington, Austin, Miami, Minneapolis, Seattle, and Tempe. Fellows get an unparalleled opportunity to impact IJ’s cutting-edge constitutional litigation. Not only is the summer extremely substantive in terms of work product, but students also participate in intensive legal and communications trainings, attend seminars, and integrate fully into IJ’s office and culture. Learn more about the program here, and apply now.

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Fiscal Analysis of Colorado’s New ‘Red Flag’ Law Assumes Gun Confiscation Orders Will Be Granted 95% of the Time

The Colorado legislature’s official fiscal analysis of that state’s new “red flag” law, which took effect this week, projects that police and “family or household members” will use it to seek gun confiscation orders against people they portray as threats to themselves or others about 170 times a year. The analysis also assumes that 95 percent of those petitions will be granted, which is not far-fetched given Florida’s experience with such orders.

Such a high approval rate reflects the due process problems with red flag laws, which take away people’s Second Amendment rights for a year or more based on vague standards and dubious evidence that judges are not inclined to question because they worry about the potentially deadly consequences of rejecting petitions. But there are a couple of reasons to think Colorado’s approval rate may not be quite as high as Florida’s.

First, of the 17 states with red flag laws, Colorado is the only one that provides court-appointed counsel to respondents who can’t afford lawyers or choose not to hire them. Legal representation is crucial for respondents trying to navigate a process that is stacked against them from the beginning.

Second, Colorado’s law allows a long list of people to seek what it calls “extreme risk protection orders” (ERPOs), including anyone related to the respondent by blood, marriage, or adoption; anyone who has produced a child with the respondent; and current or former spouses, domestic partners, girlfriends, boyfriends, and housemates. In Florida, by contrast, petitions must be filed by law enforcement officers or agencies. While Colorado’s much broader approach creates a bigger risk that biased individuals will seek ERPOs out of personal animus or sincere but mistaken concerns, that risk may lead judges to treat petitions more skeptically. In Maryland, where the list of potential petitioners is similar to Colorado’s, the approval rate for final ERPOs is around 62 percent, substantially lower than the 95 percent rate in Florida.

Whatever the approval rate turns out to be in Colorado, there are sound reasons to be concerned that ERPOs will be issued against many people who are neither suicidal nor homicidal. That is bound to be true with the initial, ex parte orders, which last up to 14 days. At that stage, the respondent has no opportunity to contest the allegations against him, and the standard of proof (“preponderance of the evidence”) is weak. The experience of other states suggests that judges rarely, if ever, decline to issue temporary orders, which in Colorado are based on a claim that the respondent “poses a significant risk of causing personal injury to self or others in the near future.”

This is also the stage where the risk of violence may be greatest, since police arrive without notice to take away people’s guns. The consequences can be deadly.

When the respondent finally gets a hearing, the petitioner is supposed to show by “clear and convincing evidence” that he “poses a significant risk of causing personal injury to self or others.” While the standard of proof is stronger at this stage, the risk no longer has to be imminent, the judge may consider any evidence he deems relevant, and the meaning of “significant risk” remains unclear. Although the name of these orders implies that the risk is “extreme,” the law requires nothing of the sort. That problem is shared by nearly all of the red flag laws that have been enacted so far. The notable exception is Vermont’s law, which allows petitions only by prosecutors and requires them to show, based on the respondent’s actions or threats, that he poses “an extreme risk.”

Under Colorado’s law, a final ERPO lasts for 364 days unless the respondent seeks early termination and shows by clear and convincing evidence that he does not pose a significant risk. That case will be hard to make, especially since “significant risk” is undefined and judges will not want to take the blame should something terrible happen after they terminate an order. The petitioner has a right to seek an extension of the order before it expires, based on the same standard of proof.

Critics of Colorado’s red flag law, including gun rights activists and some county sheriffs, rightly worry that judges will err on the side of issuing ERPOs, since the risk of suicide or homicide will loom large compared to the risk of unjustly but temporarily taking away someone’s constitutional rights. “We want sensible people to have firearms,” one activist told Colorado Public Radio at a rally last month. “We’re not looking for people who are mentally incapacitated or whatnot. But when you talk about the red flag law, you’re talking about taking away people’s due process. Basically you’re guilty until proven innocent.”

Eagle County Sheriff James van Beek notes that when the target of an ERPO tries to have it terminated, “the burden of proof is not on the petitioner (the accuser), as in every other legal case, but instead, is placed on the respondent (defendant) to prove that the accusations are wrong.” He observes that “proving one’s sanity could be very difficult, as it is highly subjective.” Nor is “proving one’s sanity,” however that’s defined, enough to prevail, since a person may be considered a threat even if he does not qualify for a psychiatric diagnosis.

A dozen or so Colorado counties have responded to the red flag law by declaring themselves “Second Amendment sanctuaries,” and several sheriffs in rural areas have said they will not enforce the law. While sheriffs have the discretion to decide whether their offices will seek ERPOs, refusing to serve orders obtained by other petitioners would create a clear conflict with state law. Colorado Attorney General Phil Weiser, who testified in favor of the red flag law, has predicted that resistant sheriffs will change their minds when they encounter suicidal or dangerous people who can’t be trusted with guns. But correctly identifying such people is the central problem that supporters of red flag laws face, and so far they have not done a very good job of meeting that challenge.

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Short Circuit: A Roundup of Recent Federal Court Decisions

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

New on the podcast: Maryland political advertising, Texas liquor protectionism, and sham review of Louisiana habeas petitions. (Click here for Apple Podcasts.)

  • Aluminum sheet manufacturer changes its overtime policy, requiring its unionized workers to sign up for overtime a week in advance. Union members protest by refusing to sign up for overtime, and one disgruntled union member expresses his displeasure by scrawling “whore board” above the overtime sign-up sheets, leading to his suspension and eventual firing. NLRB: Defacing company property with the words “whore board” was protected activity related to the protest of the new overtime rules. D.C. Circuit: That’s right, but the NLRB ignored the company’s argument that it had an obligation to maintain a harassment-free workplace, so the Board should take another look.
  • ISIS-supporting Staten Island, N.Y. man conspires to commit domestic terrorist attack against police, tries to stab FBI agent. His resulting sentencing guidelines sentence is 85 years’ imprisonment. District court: 17 years is long enough. Second Circuit: That is a “shockingly low sentence.” The case is remanded for resentencing. Partial dissent: “I fear the majority would prefer to substitute its sentencing preference for that of the District Court.”
  • Food meant for local jail winds up in jail supervisor’s Hattiesburg, Miss. restaurant. A month after the supervisor and his wife are sentenced (several years in prison plus six figures of restitution) for hiding income from IRS, federal agents who worked on the case give local news interview. The couple sues the agents in state court for slander. Fifth Circuit: The feds appropriately removed the case to federal court—where it must be thrown out because the couple didn’t file a particular piece of paper required in federal tort cases.
  • Fifth Circuit: We’re not saying that this diabetic prisoner in Texarkana, Tex. federal prison who broke his ankle and went without effective medical care for a weekend and then served 93 days in segregated housing after he complained doesn’t have a Bivens claim. But if he didn’t, it would be for the reasons expressed in this 450-word footnote. Concurrence: Well, I’m saying he doesn’t have a Bivens claim for the reasons expressed in that 450-word footnote.
  • Livonia, Mich. undercover cop sees “beat-up minivan” late on winter night, has a hunch that crime is afoot. He calls uniformed cops, and they—after noting the minivan’s three occupants are black men—tail the minivan across three jurisdictions, eventually stopping the men as they are leaving a store (where they bought space heaters). Yikes! One of the men has concealed weapon, for which his permit has expired. He’s arrested. (All charges are dropped after state court finds the stop unconstitutional.) The man then sues the cops, claiming violations of both the Fourth and Fourteenth amendments. Sixth Circuit: Qualified immunity for the uniformed cops but not the undercover cop. Partial dissent: A jury might find the uniformed cops also targeted the group for “shopping while black.”
  • Woman asks a friend to look after her 15 dogs while she’s away. The friend notifies authorities of the appalling conditions the dogs are living in. Montgomery County, Tenn. animal control enters, takes photos, removes the dogs. After the photos are disseminated publicly, the woman loses her job. But the animal cruelty charges against her are dropped after the search of her home is determined to be unconstitutional. (Five of the dogs are returned to her.) Can she sue various officers and the county for violating the Fourth and Fourteenth amendments? The Sixth Circuit says no.
  • Bibi Von Sonnenberg, a German Shepherd of esteemed lineage, escapes from her backyard. North Little Rock, Ark. animal control finds her, destroys her breeding value by spaying her, and gives her up for adoption—even though a simple microchip scan would’ve revealed the identity of her owner. Owner: The state must give notice before deprivations of canine property. Eighth Circuit: Very immunity. So summary judgment.
  • Does the word “diet” mean “assisting with weight loss” such that soft drinks like “Diet” Dr Pepper are committing false advertising? The Ninth Circuit says no.
  • Las Cruces, N.M. police officer: Who could possibly have known that it violates an arrestee’s rights to put him in the back of a squad car, hands cuffed behind his back and with no seatbelt, and then to intentionally drive recklessly so that he is slammed back and forth, injuring his shoulder, and then to deny him medical treatment for more than two hours despite medical treatment being readily available? Tenth Circuit: You. You could have known that. No qualified immunity.
  • Allegation: Homeless man rides his bike across the property of a defunct Cartersville, Ga. elementary school to get to the adjacent storage unit in which he lives. Within 60 seconds of entering the school property he is detained and arrested for criminal trespass. (There were no warning signs against trespassing.) The charges are eventually dropped. Arresting officer: You can’t sue me for false arrest because you pleaded guilty to a crime! Eleventh Circuit: Yeah, in a totally unrelated case that had nothing to do with the crime you arrested him for. Case remanded. (#appellatetwitter content warning: The opinion repeatedly uses “pled” instead of “pleaded.”)
  • And in en banc news, the Tenth Circuit will not reconsider its decision that the Takings Clause is not implicated when a SWAT team blows up an innocent person’s house in pursuit of a fugitive. (This is an IJ case.)

Attention 1Ls and 2Ls! Every summer, IJ hires law students to work in our offices in Arlington, Austin, Miami, Minneapolis, Seattle, and Tempe. Fellows get an unparalleled opportunity to impact IJ’s cutting-edge constitutional litigation. Not only is the summer extremely substantive in terms of work product, but students also participate in intensive legal and communications trainings, attend seminars, and integrate fully into IJ’s office and culture. Learn more about the program here, and apply now.

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Fiscal Analysis of Colorado’s New ‘Red Flag’ Law Assumes Gun Confiscation Orders Will Be Granted 95% of the Time

The Colorado legislature’s official fiscal analysis of that state’s new “red flag” law, which took effect this week, projects that police and “family or household members” will use it to seek gun confiscation orders against people they portray as threats to themselves or others about 170 times a year. The analysis also assumes that 95 percent of those petitions will be granted, which is not far-fetched given Florida’s experience with such orders.

Such a high approval rate reflects the due process problems with red flag laws, which take away people’s Second Amendment rights for a year or more based on vague standards and dubious evidence that judges are not inclined to question because they worry about the potentially deadly consequences of rejecting petitions. But there are a couple of reasons to think Colorado’s approval rate may not be quite as high as Florida’s.

First, of the 17 states with red flag laws, Colorado is the only one that provides court-appointed counsel to respondents who can’t afford lawyers or choose not to hire them. Legal representation is crucial for respondents trying to navigate a process that is stacked against them from the beginning.

Second, Colorado’s law allows a long list of people to seek what it calls “extreme risk protection orders” (ERPOs), including anyone related to the respondent by blood, marriage, or adoption; anyone who has produced a child with the respondent; and current or former spouses, domestic partners, girlfriends, boyfriends, and housemates. In Florida, by contrast, petitions must be filed by law enforcement officers or agencies. While Colorado’s much broader approach creates a bigger risk that biased individuals will seek ERPOs out of personal animus or sincere but mistaken concerns, that risk may lead judges to treat petitions more skeptically. In Maryland, where the list of potential petitioners is similar to Colorado’s, the approval rate for final ERPOs is around 62 percent, substantially lower than the 95 percent rate in Florida.

Whatever the approval rate turns out to be in Colorado, there are sound reasons to be concerned that ERPOs will be issued against many people who are neither suicidal nor homicidal. That is bound to be true with the initial, ex parte orders, which last up to 14 days. At that stage, the respondent has no opportunity to contest the allegations against him, and the standard of proof (“preponderance of the evidence”) is weak. The experience of other states suggests that judges rarely, if ever, decline to issue temporary orders, which in Colorado are based on a claim that the respondent “poses a significant risk of causing personal injury to self or others in the near future.”

This is also the stage where the risk of violence may be greatest, since police arrive without notice to take away people’s guns. The consequences can be deadly.

When the respondent finally gets a hearing, the petitioner is supposed to show by “clear and convincing evidence” that he “poses a significant risk of causing personal injury to self or others.” While the standard of proof is stronger at this stage, the risk no longer has to be imminent, the judge may consider any evidence he deems relevant, and the meaning of “significant risk” remains unclear. Although the name of these orders implies that the risk is “extreme,” the law requires nothing of the sort. That problem is shared by nearly all of the red flag laws that have been enacted so far. The notable exception is Vermont’s law, which allows petitions only by prosecutors and requires them to show, based on the respondent’s actions or threats, that he poses “an extreme risk.”

Under Colorado’s law, a final ERPO lasts for 364 days unless the respondent seeks early termination and shows by clear and convincing evidence that he does not pose a significant risk. That case will be hard to make, especially since “significant risk” is undefined and judges will not want to take the blame should something terrible happen after they terminate an order. The petitioner has a right to seek an extension of the order before it expires, based on the same standard of proof.

Critics of Colorado’s red flag law, including gun rights activists and some county sheriffs, rightly worry that judges will err on the side of issuing ERPOs, since the risk of suicide or homicide will loom large compared to the risk of unjustly but temporarily taking away someone’s constitutional rights. “We want sensible people to have firearms,” one activist told Colorado Public Radio at a rally last month. “We’re not looking for people who are mentally incapacitated or whatnot. But when you talk about the red flag law, you’re talking about taking away people’s due process. Basically you’re guilty until proven innocent.”

Eagle County Sheriff James van Beek notes that when the target of an ERPO tries to have it terminated, “the burden of proof is not on the petitioner (the accuser), as in every other legal case, but instead, is placed on the respondent (defendant) to prove that the accusations are wrong.” He observes that “proving one’s sanity could be very difficult, as it is highly subjective.” Nor is “proving one’s sanity,” however that’s defined, enough to prevail, since a person may be considered a threat even if he does not qualify for a psychiatric diagnosis.

A dozen or so Colorado counties have responded to the red flag law by declaring themselves “Second Amendment sanctuaries,” and several sheriffs in rural areas have said they will not enforce the law. While sheriffs have the discretion to decide whether their offices will seek ERPOs, refusing to serve orders obtained by other petitioners would create a clear conflict with state law. Colorado Attorney General Phil Weiser, who testified in favor of the red flag law, has predicted that resistant sheriffs will change their minds when they encounter suicidal or dangerous people who can’t be trusted with guns. But correctly identifying such people is the central problem that supporters of red flag laws face, and so far they have not done a very good job of meeting that challenge.

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Obamacare Update: House and Blue States File Petitions for Certiorari, and Seek Expedited Review This Term

On December 18, 2018, the Fifth Circuit decided Texas v. United States, the constitutional challenge to Obamacare. (A revised opinion was issued on December 20.) At the time, I expected the House of Representatives, and the Blue States, would file their cert petitions within a manner of days. After oral argument, the writing was on the wall. The documents could have been prepared in advance. If they hustled Texas’s response would have been due by January 20–just in time for the pivotal January 24 conference. If Texas’s request for an extension was denied, then the case could have been heard this term, without the need to grant a motion to expedite. Critically, four votes are required for cert; five votes are required to expedite.

But the House and California did not file right away. They waited more than two weeks. Today, both parties filed cert petitions (House and California). To be sure, their pleadings were filed at a rapid pace; but not super rapid pace. We know from the travel ban litigation that elite law firms can prepare quality pleadings in a very short time.

Under the Court’s normal rules of proceeding, it will be virtually impossible for the case to be heard this term. Generally, petitions granted at the end of January will be argued at the end of April. Petitions granted in February are usually heard the following term. The Court seldom grants May sittings. Based on my count, over the past quarter-century, there have only been three May cases.

As a result, both parties filed motions to expedite (House and California).  The House offered two proposed briefing schedules. (To further the feeling of Groundhog Day, former Solicitor General Donald Verrilli was counsel for the brief).

Under the first option, the respondents brief would be due in 18 days:

  • January 15, 2020—Amici supporting cert
  • January 21, 2020—Respondent brief
  • January 21, 2020—Petition distributed
  • January 23, 2020—House files reply brief.
  • January 24, 2020—Court considers petition at conference
  • February 24, 2020—Petitioner’s opening brief due
  • March 23, 2020—Respondents’ brief due
  • April 17, 2020—Petitioner’s reply brief due
  • April 27, 28, or 29, 2020—Oral argument

Under the second option, the respondents brief would be due in 31 days:

  • January 17, 2020—Amici supporting cert
  • February 3, 2020—Respondent brief
  • February 5, 2020—Petition distributed
  • February 12, 2020—House files reply brief.
  • February 21, 2020—Court considers petition at conference
  • March 20, 2020—Petitioner’s opening brief due
  • April 20, 2020—Respondents’ brief due
  • May 8, 2020—Petitioner’s reply brief due May 2020 Oral argument

Practically speaking, either the Chief Justice or Justice Kavanaugh will be lobbied to provide a “courtesy fifth.” If they decline to provide such a vote, this petition will be heard next term, if at all. Recall, the Fifth Circuit’s decision did not issue any final ruling. Moreover, a stay is in place.  The Court may simply wait for a later juncture to consider the legal issues. Issues of standing, the constitutionality of the mandate, and the proper rule for the severability analysis, can be heard at any time.

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Robertson: The Fed’s Monetary Magic

Robertson: The Fed’s Monetary Magic

Authored by David Robertson via RealInvestmentAdvice.com,

Given the strong performance of stocks over the past year and the past decade, investors might be forgiven for enjoying a sense of calm. Regardless of what one might believe about underlying fundamentals and valuation, it is hard to dispute that whenever markets have run into trouble, central banks have provided ample liquidity to get them back on track. Although maintaining exposure to risk assets in such an environment can hardly be called investing in any conventional sense, it has been profitable to do so.

The main problem with such a benign outlook is that it rests on the assumption that central bankers will be both willing and able to protect markets by way of monetary policy. The bad news is that when all the ongoing challenges are considered together, it becomes clear just how complicated and difficult the task will be to keep markets afloat with monetary magic. The good news is that it is easy to identify those challenges by just reflecting on the last year and a half or so.

One big challenge that shows up on the radar is China. In September 2018 I wrote that Chinese residential real estate is “The most important asset class in the world.” Much like in the US in the mid-2000s, a housing boom in China has been fueled by cheap and easily available credit. The only major difference is that the excesses in China’s real estate market have not yet been resolved.

While the pattern of resolution is likely to be different in China for a variety of reasons, the implications are very similar. The main one is that the process is deflationary. The reason is that the resolution of bad debts both reduces money supply and tends to put downward pressure on prices until excess supply gets worked off.

Importantly, these deflationary pressures are unlikely to be neatly contained within China’s borders. Given China’s disproportionate influence on incremental global economic growth, any declines will be felt broadly. The persistent weakness in copper prices is one important indicator.

Another big challenge will be contending with the structurally lower demand for Treasuries outside of the US. I highlighted Russell Napier’s thesis in “Dollars and nonsense, Part 2” which explains that the halcyon days of persistently rising foreign exchange reserves, forced buying of US Treasuries from abroad, and artificially subdued interest rates are over.

Going forward, US savers will bear a much greater burden to buy Treasuries, and that burden will be made even greater yet by fiscal policy that allows massive deficits. The result is that US savers will need to either sell other assets or save more in order to fund growing government debts. This in turn will impede economic growth and significantly complicate monetary policy.

Yet another factor that threatens to complicate monetary policy is the Eurodollar system. I noted in “Dollars and nonsense, Part 1” that shadow banking in general, and the Eurodollar system in particular, create all kinds of headaches for policy makers. In this system, money supply is a function of capital markets and falls outside the regulatory purview of central banks. In addition, money created through the Eurodollar system is largely a function of global trade and therefore vulnerable to geopolitical risk. As a result, the Fed has virtually no control over this money and only vague ideas as to its quantity.

In addition, a factor that can present serious challenges is the potential for severe capital controls to be implemented in a major emerging market. Although such measures are typically reserved for only the most extreme monetary challenges, they are always a policy option. Such controls can create immediate liquidity challenges which can spread quickly and widely.

The set of unhelpful consequences of monetary policy itself is yet another complicating factor. While policy prescriptions like low rates and asset purchases may provide some short-term benefits, they also come with longer-term costs. After ten years, the costs are accumulating, and the clock is ticking. Low and negative rates in Europe and Japan have destroyed the profitability of banks and eroded their ability to build strong capital bases. This can’t go on forever.

In addition, low rates induce companies (and consumers) to take on more debt. Increased burdens substantially reduce the margin of error by which companies operate. Any modest decrease in revenue, increase in interest costs, or increase in other costs (e.g. labor) can erode operating profits. With such fragile conditions for success, corporate financial health can decline quickly.

Indeed, such pressures are already being felt in a number of industries. For example, bankruptcies have been rising in the energy sector through 2019 and new capital is all but unavailable to these companies. Transportation companies are also feeling the pinch. Thus far financial stress has remained fairly localized, but the pressures are mounting.

With all these factors fresh in mind, it is easier to see just how complicated the task will be for central bankers. Because many of the issues are global in scope, the Fed will need to coordinate successfully with other major central banks, even as their objectives and priorities increasingly come into conflict.

At the same time, central bankers will need to maintain a balancing act between providing just enough stimulus to keep markets afloat but not so much as to further increase the risks of financial instability. Low rates undermine bank profitability and encourage over-consumption of debt. Excess liquidity encourages risk-taking. All these measures have costs and those costs are coming due.

If these aren’t problems enough, the ability of monetary policy to keep markets afloat is largely dependent on investors’ perceptions. In this symbiotic relationship, the ability of monetary policy to calm markets is at least partly determined by the belief of investors that it will work. In other words, maintaining this belief system takes on even more importance than fixing problems.

Unfixed problems can only persist for so long, however, before people start to notice and protect their wealth accordingly. When this happens, the power of central banks can unravel quickly. Importantly, a number of these unfixed problems are already revealing themselves in the forms of increasing bankruptcies, greater deflationary pressures in China, and the risk of a big bank in Europe or Japan failing.

Finally, the belief that stocks will keep going up because central banks will keep supporting them is based largely on the simple belief that since it has worked for ten years, it will continue to work. This, of course, is a fallacy and a misread of statistical probabilities. Such harmful, but common, tendencies are why the investment warning that “past performance is no guarantee of future results” has become so familiar.

Will the monetary magic wear out this year? It is impossible to say with certainty, but we do know a few things. One is that central banks cannot continue to implement policies with short-term benefits and long-term costs forever. Another is that the balancing act is getting increasingly difficult. Yet another is that we are closer to the end of the road this year than last year. So, if investors want to join (or remain in) the stock rally, they should do so with the full knowledge that they are playing with fire.


Tyler Durden

Fri, 01/03/2020 – 15:30

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