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.

This week, the Supreme Court, in an opinion penned by Justice Thomas, ruled unanimously that money damages are an appropriate remedy when federal officials violate individual rights, especially when no other remedies are available. In addition, Justice Thomas, just like Justice Joseph Story two centuries before him, emphasized that it is the job of Congress, rather than courts, to engage in policy making, even in the context of damages remedies against government officials. Read more here.

  • After Congress declined President Trump’s request for $5.7 bil to construct 234 miles of border wall, the President declared a national emergency—allowing the administration to fund construction of the wall with money originally dedicated to other purposes, including $20 mil set aside to fund road construction at Fort Bliss in El Paso County, Texas. The county sues, alleging that the accounting shenanigans are illegal.. Fifth Circuit: But the county lacks standing; the generalized threat to its future tax revenue is insufficient to create an injury-in-fact. Dissent: Under the majority’s standing analysis, “it is difficult to imagine a plaintiff that could challenge transfers like the ones at issue here, no matter how unlawful.”
  • An IP tizzy from fizzy drinks “Brizzy” and “Vizzy” keeps the Fifth Circuit busy. But the district judge isn’t dizzy. Or is he?
  • Do those green tubes that say “100% Grated Parmesan Cheese” violate consumer-protection laws when four to nine percent is preservatives and anti-caking agents? 100% plausible, holds the Seventh Circuit. Lawyers can find ambiguities in everything, but everyday shoppers don’t need to do statutory interpretation at the grocery store. Dismissal on the pleadings reversed.
  • Idaho keeps amending its sex-offender registration law to apply to more conduct and to make it harder to have one’s name removed from the registry. On top of that, it makes all these changes fully retroactive, meaning the people who were once not required to register—or who were eligible to have their names removed from the registry—may now find themselves swept up in the amended law. An unconstitutional ex post facto law? Ninth Circuit: Might be. The case goes back down. Dissent: The plaintiffs’ briefing was so incomprehensible that these claims weren’t properly preserved.
  • Rent control ordinances may be inconsistent with the law of supply and demand, but—per the Ninth Circuit—San Jose, Calif.’s newly enacted reporting requirements for landlords of rent-controlled units are not inconsistent with the Fourth Amendment, the Fifth Amendment, the Fourteenth Amendment, or the Contracts Clause.
  • In which the Eleventh Circuit deploys a combination of Article III standing and mootness to surface the roaring Kraken.
  • And in en banc news, the Fifth Circuit (over the dissent of 8 of 17 judges) will not reconsider its decision that an 1987 amendment to the education clause of the Mississippi Constitution violates an 1870 federal law readmitting Mississippi to the Union.
  • And in further en banc news, the Eleventh Circuit will (sua sponte) reconsider its decision that manufacturers of custom orthodontic trays can proceed in their antitrust suit against the Georgia Board of Dentistry.

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2020 Takes Toll On Mental Health

2020 Takes Toll On Mental Health
Tyler Durden
Fri, 12/11/2020 – 22:00

The pandemic and economic fallout have had enormous impacts on the health of people across the globe. Losing a loved one, unemployment and general isolation have all negatively affected peoples’ mental health in ways we are just now starting to comprehend. Statista’s Willem Roper reports that a new survey offers a glimpse into how difficult 2020 has been for the mental health of Americans.

In a new update of a yearly Gallup survey on mental health in U.S., just 34 percent of U.S. adults said they felt their mental health was in excellent condition when asked in November. That’s down from 43 percent in 2019.

Infographic: 2020 Takes Toll on Mental Health | Statista

You will find more infographics at Statista

Women were significantly less likely to describe their mental health as excellent in 2020, with just 27 percent compared to 41 percent of men. Still, both men and women had 8 and 10 percentage point drops relative to 2019.

Political demographics showed Democrats and Independents were less likely to describe their mental health as excellent this year compared to Republicans. However, those affiliated with the GOP saw the largest drop compared to 2019, going from 56 percent to 41 percent.

This Gallup survey marks a quick, substantial drop in mental health for Americans. The decline in those feeling excellent is the largest in over 15 years, while the drop in those feeling either excellent or good is the largest in the survey’s history. With conflicting realities of a vaccine on the near horizon clashing with rising COVID-19 hospitalizations and deaths across the country, it remains to be seen what the long-term effects of a prolonged decline in mental health will have in the U.S.

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What If All Americans Exercised Regularly?

What If All Americans Exercised Regularly?
Tyler Durden
Fri, 12/11/2020 – 21:40

Authored by Ross Pomeroy via RealClearScience.com,

Fewer than one in four Americans get enough physical exercise, defined as at least 150 minutes of moderate or 75 minutes of vigorous activity each week, coupled with two bouts of muscle-strengthening. While this statistic may come across as societal scolding – easily ignored – it has huge ramifications for Americans’ lives and the economy.

Why? It’s simple: exercise may be the most potent and easily accessible tool humans have for improving their lives.

If the myriad benefits of exercise could be bottled into a drug, it would be rightfully hailed as a “miracle” treatment. Regular exercise prevents and even reverses type II diabetes, drastically reduces the chances of heart attack and stroke, lowers the odds of developing cancer and dementia, and boosts the immune system, shortening the duration of syndromes like the common cold, influenza, and COVID-19 as well as reducing their severity. There’s more: exercise improves your sex life, prevents or ameliorates depression, helps you sleep, alleviates chronic pain, and makes you less susceptible to all sorts of injuries.

Unfortunately, hundreds of millions of Americans are unable or unwilling to take advantage of these real and tangible advantages. This has consequences. According to a 2018 study conducted by the Centers for Disease Control, 8.3% of yearly deaths in nondisabled adults 25 or older can be attributed to inadequate physical activity. MBA students at the University of North Carolina (UNC) translated these preventable deaths into terms of life expectancy. They estimated that Americans’ lack of exercise cost men 6.2 years of life and women 5.6 years.

Regular physical activity gives you longer to live, and as an added bonus, puts more money in your pocket. In 2016, research published in the Journal of the American Heart Association found that regular exercisers spent between $500 and $2,500 less on medical bills each year. These savings add up. The UNC team found that if all Americans were diligent about exercise, there would be a nationwide annual cost reduction of $143 Billion just from controlling diabetes and lowering blood pressure.

Just last year, the data-minded RAND Corporation tried to tabulate the economic benefits of a universally active populace. The authors estimated that the United States would see its Gross Domestic Product boosted by $52 to $77 billion per year by 2025, increasing to $100 to $144 billion per year by 2050. That’s at least an extra quarter percent of economic growth per year. These sizable gains would be realized through reduced mortality and improved productivity.

The RAND researchers suggested that government efforts to encourage exercise, perhaps in the form of community messaging, improving access to exercise facilities and parks, and promoting participation in physical activities, can pay dividends.

“Creating enduring change in physical activity is hard as there are significant barriers to change. However if this can be achieved, evidence shows that we can create healthier and more prosperous societies,” they wrote.

There’s no doubt about it: if everybody exercised, America with be a healthier, wealthier, and happier place.

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FDA Approves Pfizer-BioNTech COVID Vaccine For Emergency Use

FDA Approves Pfizer-BioNTech COVID Vaccine For Emergency Use
Tyler Durden
Fri, 12/11/2020 – 21:31

Following last night’s 17-4 vote that the benefits of the Pfizer/BioNTech vaccine outweigh the benefits, the “big, old, slow turtles” at The FDA have approved it for Emergency Use.

The decision comes after a tempestuous day during which WaPo reported that “sources” told them that White House Chief of Staff Mark Meadows demanded that FDA chief Stephen Hahn to clear the vaccine for EUA or hand in his resignation (which seems odd pressure given that a) Hahn will be gone shortly as Biden takes over and b) the election is over so Trump has no real need to care whether the vaccine is signed off today, tomorrow, or Monday).

Shortly after the story was denied…

The Trump administration promised that 100 million doses of an effective vaccine would be available by the end of 2020, and that an additional 600 million would be available to the public by March 2021, though there was some disagreement about the timeline.

So what happens next is all Americans are propagandized (we’re all in this together, be a patriot) or coerced (no travel or work without a vaccine) into taking the vaccine.

Of course, politics is likely to rear its ugly head as decision are made, state by state, on the logistics and ‘equitable’ distribution of the vaccines beyond the simple cohorts of most-at-risk and healthcare workers. As Phillip Giraldi noted:

There is a strong consensus that the first recipients of the vaccine must be health care workers, a group that has suffered disproportionately from the disease and which constitutes the first line of defense against its spread.

After that, however, there is little clarity.

Suggestions that elderly people, particularly in nursing homes, should be inoculated, have been countered by those who believe that a limited supply of vaccine should go primarily to people who would be able to go back to work.

And then there are the politicians in each jurisdiction, who oddly believe that their work is vital. They and their families will be lining up.

In short, who gets vaccinated will likely depend on the deals and arrangements that have been worked out, often at the state and local level in the United States, and at national government level in most other places.

Logically, the vaccine should go first to those who are most at risk for contracting the disease and dying from it, but logic likely will not prevail.

Generally speaking, it is expected that after health care workers and perhaps the vulnerable elderly, front line police and emergency services should be next in line due to their frequent contact with the possibly infected public, followed by workers in places like slaughterhouses where work conditions have created infection hot spots.

Next in line would logically be workers in shops or businesses where there is regular contact with the public, but as such employees are generally low wage they will likely be pushed to the back of the bus.

Inevitably, the claims that there is a racial angle to the disease will certainly surface in places like the New York Times, leading to demands to vaccinate minorities first.

This will surely be resisted. Given the political realities of the pandemic and the socio-economic engineering that will no doubt take place, the real excitement will likely begin when the vaccine actually begins to become available, probably just before Christmas!

In the meantime, as Dr. Fauci pronounced, “you can’t give [masks and social distancing] up completely until you get such a level of herd immunity that the virus has no place to go.”

Don’t hold your breath, America.

As we detailed last night, after an unprecedentedly short period from inception to trial to results, Pfizer/BioNTech’s mRNA COVID vaccine has just been approved (after an all-day meeting) by the Food and Drug Administration Advisory panel for emergency use in the US.

This was the question to be voted on…

Notably there was a lot of argument about removing the 16 years or older segment of the question.

These were the voters:

And the final vote count was as follows: 17 Yes, 4 No, 1 Abstain

This follows approvals by UK and Canada, but several populations were excluded from the trials – meaning the vaccine isn’t known to be safe for all Americans just yet…

“There are currently insufficient data to make conclusions about the safety of the vaccine in subpopulations such as children less than 16 years of age, pregnant and lactating individuals, and immunocompromised individuals,” a recent FDA review concluded.

As NIAID director Anthony Fauci tells Axios, “once 75%–80% of people get vaccinated against the coronavirus, there should be strong enough herd immunity that we can return to normal activities.”

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Winter Storm Possible Next Week In Mid-Atlantic Puts Outdoor-Dining In Jeopardy 

Winter Storm Possible Next Week In Mid-Atlantic Puts Outdoor-Dining In Jeopardy 
Tyler Durden
Fri, 12/11/2020 – 21:20

A cold front is expected to swoop in from eastern Canada and pour into the Mid-Atlantic states early next week. Simultaneously, a storm is forecasted to develop off the Carolina coast, producing a “wintry mix of precipitation in the Washington region,” reported WaPo

“Based on the predicted setup, which still could change, accumulating snow is a strong possibility in the western part of the region, particularly along and west of a line from roughly Warrenton to Leesburg to Frederick. The Interstate 81 corridor, from Winchester to Hagerstown, could see significant snowfall.

“As is frequently the case with these storms, the position of the rain-snow line is the biggest wild card and could set up close to Interstate 95, making for a very challenging forecast in the immediate D.C. area. Areas inside the Beltway could see a mix of snow, ice and rain, mostly snow, or just cold rain. East of the Beltway, a cold rain or wintry mix are more likely than accumulating snowfall,” WaPo said. 

The storm’s timing is expected for Wednesday – and at times, there could be periods of “heavy precipitation.” 

The quick-moving storm may impact the Baltimore–Washington metropolitan area. 

Source: WaPo

Forecast temperature anomalies show temps will begin to dip early next week. 

Source: Reuters Eikon 

WaPo noted there’s “an outside chance the storm slides off the coast to the east rather than coming up the coast, which would limit precipitation amounts, especially in our western areas.” 

While the cold spell may only be sticking around to the end of next week – we outlined last week, nat gas prices have plunged on overall warmer forecasts for December. 

However, it’s beginning to be that time of year when temperatures drop, and wintery precipitation may become plentiful, not just for the Northeast but other parts of the country. This could be very impactful on restaurants that are struggling to survive with outdoor dining. 

For example, in New York City, more than half of the metro area restaurants are in danger of closing. Starting Monday, indoor dining will be banned, which means eateries will only derive sales from outdoor dining and togo orders. 

In a recent client note, Goldman Sachs identified when outside temperatures drop below 45°F – it would likely result in a sharp decline in outdoor dining sales, implying people aren’t going to eat in tents surrounded by propane heaters in chilly conditions. 

In a separate report, Goldman also told clients that declining temperatures would result in more COVID-19 cases that would significantly slow down the economy.

All and all, it’s going to be a hellacious winter for restaurants. Many more will fail as Old Man Winter comes knocking. 

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Who The “Resistance” Was Actually ‘Resisting’ These Last Four Years

Who The “Resistance” Was Actually ‘Resisting’ These Last Four Years
Tyler Durden
Fri, 12/11/2020 – 21:00

Authored by Caitlin Johnstone via Medium.com,

After it was announced that the Biden camp had selected a Raytheon board member as his secretary of defense, I joked in my last article that it would be more honest if Raytheon itself was Biden’s Pentagon chief since the US Supreme Court ruled that corporations are people anyway. Raytheon for defense secretary, Boeing for secretary of state, Goldman Sachs for secretary treasurer, ExxonMobile head of the EPA, Amazon for CIA director and Google for director of national intelligence. Waka waka, I’m so silly.

Anyway, since that rant was published NPR has reported that the the next US director of agriculture will be a man named Tom Vilsack, whose corporate cronyism the last time he occupied the same position earned him the nickname (I shit you not) “Mr Monsanto”. Which is just too perfect for words, really.

Bloomberg reports:

“Some supporters of Vermont Senator Bernie Sanders campaigned against Vilsack when he was under consideration to be Clinton’s vice president, branding him ‘Mr. Monsanto’ and citing his role in brokering a compromise on legislation labeling foods containing genetically modified organisms. Sanders opposed the national legislation, which overrode a stricter Vermont state law.”

Biden’s inadvertent self-parody of a cabinet is already shaping up to be just as chock full of corporate swamp monsters as Trump’s notoriously corrupt administration, with positions being given to the very last people any ordinary human being with any common sense would want. President Biden is going to be just as much of a corrupt warmongering oligarch crony as his predecessors, and at least as destructive.

Which makes one wonder, what exactly was the point of the #Resistance and what has it been #Resisting all these years?

After Donald Trump’s 2016 election a massive amount of energy went into the creation and promotion of a “movement” branded “The Resistance” which portrayed itself as a revolutionary counterforce against the corruption and malfeasance represented by Trump and his goons. Many a glowing puff piece was written about this carefully constructed plucky band of rebels standing up against the forces of darkness on behalf of the common man, and many a political donation was raised.

The Resistance™️ was aggressively marketed by cynical liberal spinmeisters like Neera Tanden (who in a brazen middle finger to US progressives is also set to play a role in the Biden administration) with the goal of harnessing and maintaining the enthusiastic grassroots anti-establishment energy of the Bernie Sanders campaign and directing it against Trump.

But what did it actually accomplish? In the end, all the so-called Resisters ended up doing was promoting a bunch of Russia conspiracy theories and an impeachment which failed to remove Trump, all while providing no actual resistance to Trump’s most pernicious policies. They’d yell and shriek on social media and MSM punditry panels any time someone was fired from the administration and falsely get people’s hopes up whenever new information came out about the Mueller investigation, but in terms of actually removing Trump from office or stopping him from doing evil things like starving Venezuelansassaulting press freedoms with the persecution of Julian Assange, tempting war with Iran and perpetuating the mass atrocities in Yemen, they accomplished literally nothing.

This is because the #Resistance was never actually intended to resist the evil agendas of the powerful, nor even to resist Trump. The #Resistance was not created to resist the powerful, it was created to resist you. The grassroots anti-establishment populism of the Bernie Sanders movement was cynically imitated by the Democratic establishment to ensure that the establishment is never inconvenienced in any way, and that progressives never take power in America.

On a recent interview with MSNBC Sanders himself — historically far less willing to criticize the Democratic establishment than his supporters — is heard complaining that the progressive base whose votes put Biden over the top in November are so far receiving no representation whatsoever within the incoming Biden cabinet.

“If it wasn’t for the hard work of a lot of progressive grassroots organizations who got young people involved in the political process, working-class people involved in a way that we have not seen, Joe Biden would not have won that election and I think that’s pretty clear,” Sanders says.

“And my point has been from day one that those voices, that movement, deserves representation in the cabinet. And if your question is have I seen that yet, no I have not.”

Of course you haven’t, Bernie.

You were never going to. Biden might create some sort of fake position to let progressives feel like they’re participating with a name like “Progressive Outreach Team For Yelling Words Into A Hole In The Ground” or something, but in terms of actually directing the policy and behavior of the Biden administration nobody who wants the interests of the people upheld over the interests of the powerful will ever have a hand anywhere near the steering wheel.

Actual thing.

The #Resistance spun itself as a revolutionary movement against the insidious forces of darkness threatening the United States of America. What it delivered was support for Trump’s world-threatening cold war escalations against Russia, the mass delusion that America’s problems can be fought from within the establishment, progressives impotently chasing their tails for four years, and a presidency that is going to be just as much of a murderous oligarchic rim job as was delivered by Trump administration.

The engineers of the “Resistance” did not want to eliminate Trumpian depravity, they just wanted to be the ones driving it. And now they are. If you fed into this nonsense in any way over the last four years, this is your reward.

Which begs the question: if an entire political faction needed to sacrifice all its principles, all its values and all its morality to get rid of Trump… what exactly was the point of getting rid of Trump?

*  *  *

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The Supreme Court Just Dismissed Trump’s Hail Mary Effort To Overturn the Election

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The U.S. Supreme Court on Friday dismissed a last-ditch legal effort aimed at overturning the results of the presidential election, effectively ending President Donald Trump’s final bid to reverse his defeat.

In a one-page statement, the Supreme Court said the Texas v. Pennsylvania lawsuit lacked standing.

The case had been brought directly to the court by Texas Attorney General Ken Paxton, who challenged the constitutionality of election laws in four states—Georgia, Michigan, Pennsylvania, and Wisconsin—on the grounds that those states had changed election procedures without the consent of their respective state legislatures. Paxton asked the Supreme Court to postpone the scheduled December 14 meeting of the Electoral College to allow for more time to investigate possible voter fraud in those states.

But the Texas lawsuit “has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections,” the court ruled on Friday.

Justices Samuel Alito and Clarence Thomas wrote that they did not believe the court had the authority to reject a case brought under original jurisdiction—that is, under the provision in Article III of the U.S. Constitution that allows the Supreme Court to directly take-up cases where one state is suing another—and that therefore the case should be heard by the court. But they agreed with the other seven justices, including all three Trump-appointed justices, that no immediate relief should be granted.

Despite the fact that Trump had promised that the Texas lawsuit was “the big one” in his campaign’s multi-pronged and poorly performing legal effort to reverse his loss in last month’s election, most nonpartisan observers viewed the lawsuit as an inept mess. In an amicus brief also filed on Thursday, a group of conservative legal scholars described the underlying lawsuit as making “a mockery of federalism and separation of powers.”

More than 100 members of Congress—including House Majority Leader Kevin McCarthy (R–Calif.) and Rep. Andy Biggs (R–Ariz.), chairman of the House Freedom Caucus—signed an amicus brief asking the court to support the Texas lawsuit. If nothing else, the lawsuit had the benefit of exposing which Republican members of Congress were willing to support Trump’s unfounded attempt at overturning the election’s result.

With Friday’s ruling and the Electoral College’s official vote looming on Monday, the result of this year’s presidential election is clear. Joe Biden is the president-elect. It’s over.

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What Wall Street Thinks Are The Biggest Risks For 2021

What Wall Street Thinks Are The Biggest Risks For 2021
Tyler Durden
Fri, 12/11/2020 – 20:40

While the most interesting part of the monthly Bank of America Fund Manager Survey is the question what Wall Street’s professionals think is the biggest “tail risk”, there is a certain sense of predetermination to a survey that everyone on Wall Street reads, is well aware of, and is tempted to perpetuate. In any case, as the latest FMS revealed, for the past 8 months, BofA found that Covid was viewed as the biggest tail risk.

So in an attempt to provide some granularity (and to remind Wall Street that it conducts a survey of its own) today Deutsche Bank’s Jim Reid writes that a record 984 respondents participated in the bank’s latest monthly market survey. And while the German bank will released full results on Monday, it offered a sneak preview of what respondents saw as the biggest market risks for  2021 from the list that we provided (naturally, same as with the BofA FMS, this is all everyone cares about to make sure they are not oblivious to some glaringly obvious black swan about to emerge).

Interestingly, all the vaccine-related concerns filled out the top 3 which according to Jim Reid suggests that although consensus is for a good 2021, a successful vaccine roll out could still bring upside surprise relative to expectations. As for Reid’s own top pick, he said that it was a tech bubble bursting, which made number four on the list followed by central banks pulling back too early. An early inflation surprise rounded out the top 5 risks.

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