Doug Kass’ 15 Surprises For 2021

Doug Kass’ 15 Surprises For 2021

Authored by Doug Kass of Seabreeze Partners Management,

This is my 19th year of compiling my Surprise List!

In 2020 (despite broad February-March weakness) equities rose faster, valuations expanded far greater, and interest rates fell sharper than the consensus expected. 2021 could be a year in which the S&P Index shows little movement in the first half of the year – but market pressures might mount over the last six months of 2021.

“In this age of infinite distraction, when the entitled elect themselves, the party accelerates and the brutal hangover is inevitable.”

— Dr. Michael Burry (he profited from “The Big Short”), 2012 UCLA Commencement Speech

Never make predictions, especially about the future.”

— Casey Stengel (also short in stature)

Those who are easily shocked should be shocked more often.”

— Mae West (she liked only two types of men — long and short)

You are neither right nor wrong because the crowd disagrees with you. You are right because your data and reasoning are right.”

— Legendary value investor Ben Graham (who in the short term recognized the market was a voting machine, not a weighing machine)

Timid men prefer the calm of despotism to the tempestuous sea of liberty.” [Think: Central-bank intervention!]

— Thomas Jefferson (Founding father and long of stature)

It’s that time of the year again! Time here on Monday morning for my 15 Surprises for 2021, which I’ll unveil in a bit.

I’ve never walked the same path in my investment career that others have found comfortable and I’m not going to start now. You see, I find beauty in a variant view. It’s satisfying intellectually, analytically and financially (at least when you’re correct). There’s something special about adopting a non-consensus view and watching it become reality despite protests from many corners. This notion forms the basis for my annual “15 Surprises” list.

The purpose of my annual list is to get readers to think more deeply about a variety of issues. As you read the installments to follow, it will become clear that my surprises this year are substantially out of consensus — more so than in any year I can remember. As The Dude says in The Big Lebowski: “Yeah, well, you know, that’s just, like, my opinion, man.”

By means of background and for those new to Real Money Pro, 19 years ago I set out and prepared a list of possible surprises for the coming year, taking a page out of the estimable Byron Wien’s playbook. Byron is a longtime friend of mine (and I am having dinner with him and Anita later this month). Byron originally delivered his list while chief investment strategist at Morgan Stanley, then Pequot Capital Management, and now at Blackstone. (Click here to read his “Surprises” list for 2020).

It takes me about four weeks of thinking and writing to compile and construct my annual list. I typically start with about 40 surprises, which are accumulated during the months leading up to my annual column on the subject. I cull the list to come up with my final 15 surprises. (Sometime I include also-ran surprises, as I did last year). The preparation of my list, as it was this year, often is not completed until the early hours before publication.

I often speak to and get input from some of the wise men and women that I know in the investment and media businesses (you can probably guess some of their names — two close ones and very smart buddies are with me in the list’s preparation in recent years. We call each other “the three stooges.”) My other go-to sources are two brilliant hedge hogger acquaintances from New York City and South Florida. I always have associated the moment of writing the final draft (in the weekend before publication) of my annual list with a moment of lift, of joy, and hopefully with the thought of unexpected investment rewards in the new year. This year is no different. I think this year’s list is pretty intriguing and many of the surprises have a good chance of occurring!

I set out as a primary objective for my list to deliver a critical and variant view relative to consensus that can provide alpha or excess returns. The publication of my annual list is in recognition that economic and stock market histories have proven that more often than generally thought, consensus expectations of critical economic and market variables may be off-base.

History demonstrates that inflection points are relatively rare and that the crowds often outsmart the remnants. In recognition, investors, strategists, economists and money managers tend to operate and think in crowds. They are far more comfortable being a part of the herd rather than expressing — in their views and portfolio structure — a variant or extreme vision.

It is important to emphasize that these are not forecasts. Rather, they are events with a greater than a 50% chance of occurring that are deemed deeper outlier events (with a probability of 20% or less) relative to consensus expectations. In other words, my Surprises are anti “Group Stink.”

Confidence is the most abundant quality on Wall Street as, over time, stocks climb higher. Good markets mean happy investors and even happier investment professionals.

The factors stated above help explain the crowded and benign consensus that every year seems to begin with, whether measured by economic, market or interest rate forecasts. But an outlier’s studied view can be profitable and add alpha.

Consider the course of interest rates and commodities in 2014, which differed dramatically from the consensus expectations. And consider my outlier view in late 2014 that the drop in oil prices would fail to help the economy and that OPEC would come close to dissolution and oil prices would plummet. An investor could have done quite well by following that message of avoiding energy stocks over the last few years. Or consider the value of my surprise that in 2019 the Federal Reserve would reverse its stance and cut rates, leading to a 2.25% yield on the 10-year U.S. note. That surprise was in marked contrast to the almost universal view that the Fed would tighten and interest rates would rise.

To a large degree, the business media perpetuate group-think and coddle investors, often into a false sense of security. Consider the preponderance of bullish talk in the financial press. All too often the opinions of guests who failed to see the crippling 2007-2009 drama are forgotten and some of the same (and previously wrong-footed) talking heads are paraded as seers in the media after continued market gains in recent years. Memories are short, especially of a media kind. Nevertheless, if a criterion for appearances was accuracy, there would have been few available guests in 2009-2010 qualified to appear on CNBC, Bloomberg and Fox Business Network.

As we began 2021, after more than 10 years of market and economic prosperity, the few secular investment bears remaining were often ridiculed openly by the business media in their limited appearances, reminding me of Mickey Mantle’s quote: “You don’t know how easy this game is until you enter the broadcasting booth.”

And then there was 2020! What a year it was!! But more on this later…

Abba Eban, the Israeli foreign minister in the late 1960s and early 1970s, once said that the consensus is what many people say in chorus but do not believe as individuals. GMO’s James Montier, in an excellent essay published several years ago, made note of the consistent weakness embodied in consensus forecasts:

“Economists can’t forecast for toffee … They have missed every recession in the last four decades. And it isn’t just growth that economists can’t forecast; it’s also inflation, bond yields, unemployment, stock market price targets and pretty much everything else … If we add greater uncertainty, as reflected by the distribution of the new normal, to the mix, then the difficulty of investing based upon economic forecasts is likely to be squared!”

Lessons Learned Over the Years

I’m astounded by people who want to ‘know’ the universe when it’s hard enough to find your way around Chinatown.”

– Woody Allen

Let’s face it: Bottom-up consensus earnings forecasts have a miserable track record. The traditional bias is well-known. And even when analysts, as a group, rein in their enthusiasm, they are typically the last ones to anticipate swings in margins.”

– UBS (Top 10 Surprises for 2012)

There are five core lessons I have learned over the course of my investing career that form the foundation of my annual surprise lists:

  1. How wrong conventional wisdom can consistently be.

  2. That uncertainty will persist.

  3. To expect the unexpected.

  4. That the occurrences of Black Swan events are growing in frequency.

  5. With rapidly changing conditions, investors can’t change the direction of the wind, but we can adjust our sails (and our portfolios) in an attempt to reach our destination of good investment returns.

Again, it’s important to note that my surprises are not intended to be predictions, but rather events that have a reasonable chance of occurring despite being at odds with the consensus. I call these “possible-improbable events.” In sports, betting my surprises would be called an “overlay,” a term commonly used when the odds on a proposition are in favor of the bettor rather than the house.

The real purpose of this endeavor is a practical one — that is, to consider positioning a portion of my portfolio in accordance with outlier events, with the potential for large payoffs on small wagers/investments.

Since the mid-1990s, Wall Street research has deteriorated in quantity and quality due to competition for human capital at hedge funds, brokerage industry consolidation and reforms initiated by former New York Attorney General Eliot Spitzer. It remains, more than ever, maintenance-oriented, conventional and group-think — or group-stink, as I prefer to call it. Mainstream and consensus expectations are just that and, in most cases, they are deeply embedded into today’s stock prices.

It has been said that if life were predictable, it would cease to be life, so if I succeed in making you think (and possibly position) for outlier events, then my endeavor has been worthwhile.

Nothing is more obstinate than a fashionable consensus, and my annual exercise recognizes that, over the course of time, conventional wisdom is often wrong. As a society and as investors, we are consistently bamboozled by appearance and consensus.

Too often, we are played as suckers, as we just accept the trend, momentum and/or the superficial-as-certain truth without a shred of criticism. Just look at those who bought into:

  • The success of Enron;

  • The existence of Saddam Hussein’s nonexistent weapons of mass destruction;

  • The heroic home-run production of allegedly steroid-laced Major League Baseball players Barry Bonds and Mark McGwire;

  • The “financial-supermarket” concept at Citicorp, which was once the largest money-center bank;

  • The uninterrupted profit growth at Fannie Mae and Freddie Mac;

  • Housing’s “new paradigm” in the mid-2000s of non-cyclical growth and ever-rising home prices;

  • The uncompromising principles of former New York Governor Eliot Spitzer;

  • The morality of other politicians (John Edwards, John Ensign, Larry Craig, etc.);

  • The consistency of Bernie Madoff’s investment returns (and those of other hucksters);

  • The clean-cut image of Tiger Woods.

But enough of that rant.

How did I do last year?

White House Politics:

(When asked what he wanted to give thanks for during a press gaggle Thanksgiving Thursday, Trump responded), “for having a great family and for having made a tremendous difference in this country. I’ve made a tremendous difference in the country. This country is so much stronger now than it was when I took office that you wouldn’t believe it… And I mean, you see, but so much stronger people can’t even believe it. When I see foreign leaders they say we cannot believe the difference in strength between the United States now and the United States two years ago.”

– President Trump (Comments on Thanksgiving)

Policy:

“You only think I guessed wrong! … You fool! You fell victim to one of the classic blunders – the most famous of which is “never get involved in a land war in Asia” – but only slightly less well-known is this: Never go in against a Sicilian when death is on the line!”

– Vizzini, The Princess Bride

The Economy:

“The missing step in the standard Keynesian theory (is) the explicit consideration of capitalist finance within a cyclical and speculative context… finance sets the pace for the economy. As recovery approaches full employment… soothsayers will proclaim that the business cycle has been banished (and) debts can be taken on. But in truth neither the boom nor the debt deflation… and certainly not a recovery can go on forever. Each state nurtures forces that lead to its own destruction.”

 Hyman Minsky

The Markets:

“Every new beginning comes from some other beginning’s end.”

Seneca the Elder

So, I said we’d be grading the surprises for 2020 that I unveiled a year ago.

Turns out I had a near average year relative to my historic percentages – with 40% of my Surprises were correct. (My worst hit rate was in 2013 when only 20% of my Surprises occurred. My best was over 60% in 2018).

But, more importantly, I had four of my first five (and most important rated Surprises) correct this year. In the case of the Presidential election, my forecasts for voter turnout, popular and Electoral College votes was eerily accurate.

As we entered 2020, most strategists expressed a constructive economic view of a self-sustaining domestic recovery, held to an upbeat corporate profits picture (abetted by the 2018 corporate tax rate reduction), there was a unanimous view that interest rates would climb and generally shared the view that the S&P 500 would rise in the range of 8% to 10%. As well all now know, the S&P Index rose by about 15% and interest rates fell hard as the world suffered under Covid-19.

Many readers of this annual column assume that my Surprise List will have a bearish bent (and to be sure, that was the case in the last few years and back in 2007-08). But I have not always expressed a negative outlook in my Surprise List and I often have positive (and out of consensus) things to say about individual companies and sectors.

Below is a report card (40% correct) of my 15 Surprises for 2020 (the surprise is in boldface and my analysis follows each surprise):

Surprise #1 Trump Popularity Falters Badly, the Progressive Wing of the Democratic Party Fails to Catalyze Voters, Biden Easily Wins the Presidency and Democrats Have a Clean Election Sweep (As Women and Millennials Show Up in Droves)… Voter Turnout rises by over +6% (from 2016) – most of the incremental change is captured by Biden who wins 50.7% of the popular vote compared with 46.3% for Trump – a plurality of over 6 million votes. (That compares to 48% for Secretary Clinton and 46% for President Trump in 2016 – a difference of 2.9 million votes). Senator Biden also wins a surprisingly large majority in the electoral college (304 to 234). After the election, there are violent demonstrations around the country by Trump supporters in mid- to late- November. Trump does little to squash or calm down the protests and instead holds a number of rallies against Democrats and the election results. In December, 2020, President Trump announces his plans to launch Trump TV. Sean Hannity leaves Fox News – assuming a duel role as CEO of Trump TV as well as the station’s chief commentator. Rush Limbaugh and several Fox News commentators join Trump TV… Biden was dismissed in the early stages of the Democratic primaries but beginning in South Carolina the President-elect’s fortunes turned. Biden ultimately received 306 electoral votes against Trump’s 232 votes (ALMOST EXACTLY THE 304 VOTES I EXPECTED). Voter turnout was indeed robust (turnout was 66.5% of eligible voters, highest since 1900) – with 20 million more votes in 2020 over 2016. Biden received 81 million votes (or 51% of the total and shattering President Obama’s 69.5 million votes) compared to Trump’s 74 million votes (47% of the total) – again, almost the exact percentages I projected 12 months ago! VERY RIGHT

Surprise #2 Disappointing Global Growth, Weakening Corporate Profits, a Fed Pivot and Political and Geopolitical Instability Produce a “Garden Variety” Bear Market in 2020… Though the Fed did not pivot there was a dramatic drop in global economic growth and in U.S. corporate profits. We had a Bear Market in 2020. VERY RIGHT

Surprise #3 The China Trade Deal Falls Apart, China’s Patience With Hong Kong Runs Out and There Is a Global Shortage of Protein… The trade war is reignited and tariffs are reimposed on China. Capital spending, consumer and business confidence falters. China doesn’t comply with “Phase One” of the trade deal which offers little more than purchasing needed agriculture products and fails to protect U.S. intellectual property. China’s patience in Hong Kong runs out and it takes action that sets off both a geopolitical and stock market crisis. China’s aggression ends any chance for a “Phase Two” trade deal. VERY RIGHT

Surprise #4 Watch Out Below! Automobile Industry Sales Plummet and Threaten the Domestic and Global Economies… Auto industry sales closed out 2019 at a 17.1 million SAAR rate for the month of December. SAAR fell to a 8.6 million rate within four months! VERY RIGHT

Surprise #5 With Draghi Gone, ECB Monetary Policy Abruptly Changes and Interest Rates Are Increased. VERY WRONG

Surprise #6 Despite Weakening Economic and Profit Growth the Federal Reserve Does Not Lower Interest Rates This Year. VERY RIGHT

Surprise #7 Berkshire Hathaway and Warren Buffett Surprise the Markets – On Several Fronts… Berkshire Hathaway, with over $130 billion of cash, acquires FedEx (for $55 billion) in a spirited bidding contest against Walmart (WMT) . There are several important catalysts to the transaction – Buffett understands FDX’s business and the deal would expand his scale in transportation – where he already enjoys a stronghold in rails with subsidiary Burlington Northern. Moreover, despite the recent Amazon issue, FedEx has a wide business moat with a vast distribution presence and a large fleet of vehicles. Finally, FedEx’ shares have been pummeled (-20%) because of a difficulty in adopting to digital commerce and the company could be purchased on the cheap at under 20x earnings…Berkshire makes two more large acquisitions – reducing its cash position by $100 billion to $30 billion. Fires in California grow entirely out of control, shutting down much of the power grid in California – and hobbling the state’s economy. President Trump does not come to the aid of the state until too much damage is done. But Buffett helps and provides bankruptcy financing by Pacific Gas and Electric (PCG) . While it is normally impossible to buy a regulated utility, at the request of regulators Berkshire ultimately takes control of the company. Contrary to being a “forever holding,” Berkshire unloads a portion of its Apple (AAPL) long investment after the stock becomes too large a percentage of its portfolio… Though Berkshire did sell down some of its Apple holdings the rest of the surprise was incorrect. VERY WRONG

Surprise #8 Goldman Sachs (In An Attempt To Expand Its Retail Presence) Acquires The Vanguard Group (with over $5.3 trillion of assets under management)… Goldman Sachs was quiet but Morgan Stanley acquired Eaton Vance. WRONG

Surprise #9 Stock Surprises Abound – Boeing, General Electric, Tesla, ViacomCBS, Comcast, Google, Facebook, Kohl’s, Ford, Square, Twitter, Federal Express, European Banks, U.S. Pharma/Healthcare and U.S… Most of these did not come to pass. WRONG

Surprise #10 The SoftBank Unraveling Spreads to Sand Hill Road WeWork isn’t the last failed unicorn that tries to IPO itself. The private values on a basket of money losing unicorns falls by over 30%… Venture capital becomes scarce. There are negative knock on effects throughout the Northern California economy. Late in the year Facebook (FB) , Alphabet (GOOGL) and Amazon (AMZN) begin to show the signs that a chunk of their revenue comes from venture based start-ups – their share prices suffer. Private equity does not escape the turmoil in venture capital… There was no “contagion.” WRONG

Surprise #11 A Well Known Trader\Investor Who Frequently Appears on Bloomberg, Fox Business and CNBC is Indicted By the SEC For Failure to Disclose His Transactions and Investment Positions In a Proper and Timely Manner… Didn’t happen but I see this in the future. WRONG

Surprise #12 A Large Sell-Side Brokerage Firm Abandons its Research Department Owing to Unbundling of Services and the General Lack of Profitability Associated With Their Efforts… Didn’t happen but I also see this in the near future. WRONG

Surprise #13 FANG(A) Gets Redubbed FAMG(A) With Microsoft Replacing Netflix… The competition from other streaming services causes Netflix (NFLX) to lose millions of domestic subscribers. The whole pricing power story unravels and market loses faith in the cash burning narrative. Netflix’s shares trade down to $200/share… Netflix signed up only 2.2 million new paid subscribers between July and September of 2020, its smallest quarterly increase since 2016, bringing the company’s total number of subscribers worldwide to just over 195 million – but it did not lose subs. The shares fell to $290 in March. WRONG

Surprise #14 Market Structure Haunts Our Markets Throughout the Year… The dominance of ETFs and quant strategies (e.g. risk parity) shows its ugly side…The 2019 movie is in reverse this year – the ETFs and quant products and strategies that delivered a recipe for the relentless advance last year are reversed and, with so many looking to exit, liquidity evaporates. ETF prices, in particular, exhibit greater volatility than the underlying constituent holdings. The dominance of passive strategies is threatened and active strategies begin to garner inflows after a lengthy period of losing market share. Over one quarter of the listed ETFs are delisted… A “Flash Crash” takes the S&P Index down by over -5% in one day. Volatility rockets to over 35 and stays elevated for most of the year… The February March decline in equities was unprecedented in time and magnitude. RIGHT

Surprise #15 A Credit-Related Event Causes a Market Liquidity Crunch as Covenant-Lite, Leveraged Loans, BBB-rated Downgrades All Pose a Potential Threat to Both the Debt and Equity Markets. Credit conditions tighten with more differentiation between CCC and BBB corporate and consumer credit. More companies fall out of CCC and out of BBB into high yield. VERY WRONG

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Like Diogenes with his lantern, I am, again in 2021, a cynic looking for truth (and an honest investor) – as I engage in my annual assault on the consensus and “Group Stink.”

Last year I wrote:

“More than any year in the last decade, the contour of the U.S. stock market will likely be importantly influenced and shaped by politics and profits in 2020. Surprises in the political arena and in corporate profitability are my first two and most important deviations from the consensus. 2020 could be the year of mean reversion – a year of the vanishing Fed (and global central banker) put and a surprising turn in central bank policy (by the ECB), weakening global economic growth and less than expected corporate profits (again), political upsets (again), rising geopolitical risks (and global conflicts), a general recognition of the risks associated with untamed deficits and large debt loads and general market instability.”

The politics of 2020 initially set the stage for the markets and the global economies but it was Covid-19 (and the policy responses) – a Black Swan and virus that no one expected – that framed the markets throughout the year. NO ONE expected the magnitude and swiftness of the recovery of the capital markets to all-time highs in December, 2020 as multiples reset higher based on the confidence in a hockey stick rebound to both domestic economic growth and in S&P profits in 2021.

However, in 2021 we may return to fundamentals and a year of the vanishing Fed (and global central banker) put coupled with some mean reversion (lower) in valuations. This year might mark the return of the hibernating “bond vigilantes” as inflation and interest rates also mean revert as a general recognition of the risks associated with untamed deficits and large debt loads lead to general market instability later in the year.

Remember, my Surprise List is not a set of forecasts. Rather, the List represents events that the consensus views as having a low probability of happening (25% or less) but, in my judgment, have a better than 50% chance of occurrence. In betting parlance this is called an “overlay.”

I would note a change in the format of my Surprise List this year, as, in the age of social media, attention spans are shrinking — so this year’s Surprise List will reflect this new reality (of fewer characters and less words) by being noticeably shorter than in the past two decades.

Here are my 15 Surprise for 2021: 

Surprise #1 Tesla’s Stock Declines By Two Thirds  Elon Musk loses his liberal audience. Tesla’s mistreatment of customers, suppliers, employees, subsidy providers and safety regulators and the general population hits a wall. A movement to kick Tesla out of ESG Indices gains steam, as proponents give Tesla the lowest possible rating in S and G. The Chinese retaliate over Musk’s racist comments, where he blames Chinese drivers for a series of accidents. A high profile celebrity or athlete dies while using autopilot. Under new leadership, the National Highway Safety Administration (HTSA) orders recalls for suspension problems, computer screen failures, battery fires, sudden acceleration. Regulators put a stop to so called Full Self Driving due to predictable abuse. Tesla announces it will be transitioning its Fremont, California manufacturing to Austin, Texas in 2022, but after years of union busting, Austin workers vote to join the UAW. Meanwhile, Tesla’s market share collapses under an avalanche of new entrants. Rivian and GM (GM) beat the cybertruck to market with better products. VW (VLKAF) becomes the leading global manufacturer of electric cars. GM, Waymo and Zoox become the leaders in self-driving. Toyota (TM) demonstrates a solid state battery making them the leader in batteries. Tesla stock falls by almost -70% — Greenlight’s David Einhorn jokes that “it’s like an unannounced stock split.” John Bogle rolls over in his grave as “passive” investors lose most of their “investment” in Tesla. Congress conducts an investigation into Tesla’s inclusion in the S&P Index.

Surprise #2 Political Normalcy Is Not Obsolete and Biden is The Calm After the Storm  Biden breaks the party deadlock in Washington and governs with a centrist coalition of key Senators and Congressmen – to the frustration of the far left. There are several Republicans like Romney, Murkowski, Collins, Ernst, Perdue and Tillis that realize they have a ton of power (and control of the Senate) to support a centrist agenda. They join Democrat centrists including Warner, Bennet, Carper and Shaheen to drive a bipartisan agenda. There will be no bold Green New Deal (though a more moderate deal is delivered), confiscatory tax law changes, defunded police, mass forgiveness of student loans or single payor health. There will not be two new states or Supreme Court packing – even if the senate goes 50-50. There will be an infrastructure bill (with Green energy emphasized), changes to taxes on foreign corporate earnings, police reform, immigration reform and other attempts to reduce institutional racism, limited forbearance on hardship student debt, and fixes to Obamacare. 

Surprise #3 Former President Trump No Longer Remains A Dominant Political Force in the U.S. – The Republican party comes to the realization that Trump is a liability at the same time the Democrats realize that the far left hurts their party. Trump proceeds with “Trump TV” (he is in “pre-production” already!). Launched in the spring, he recruits Sean Hannity, Roger Stone, Mike Flynn and Joe Kernen to become the enterprise’s primary commentators. By year-end it is clear that this is but another one of Trump’s multiple business failures and “Trump TV” closes almost before it started. Facing numerous lawsuits and a sweeping State of New York indictment, Donald Trump declares personal bankruptcy by year-end. There is no cliffhanger this time and, disgraced, Trump sells Mar A Lago and liquidates several of his other properties. 

Surprise #4 Stocks Experience Their Least Volatility Ever in the First Half of 2021 and the Most Volatility Ever in the Second Half of 2021 – The S&P Index is tightly range bound between 3600-3800 over the first six months of the year – but, under the weight of regulatory assault of technology, and higher inflation and interest rates, falls to under 3300 later in 2021. 

Surprise #5 Bottlenecks Multiply and Inflation Surges – There are bottlenecks everywhere in 2021 and inflation in places beyond financial assets. As the economy reopens, there are shortages of almost everything. Commodities boom, but so do service prices. It seems that prices of everything from shipping to manicures are on the rise. The infrastructure bill sends construction material prices through the proverbial roof. Pent up savings are unleashed in robust consumer demand. Concerts, sporting events reopen with limited capacity and tickets are in hot demand. Residential real estate (single and multi family) soar in price, as people put stimulus, the recovery and stock market winnings into real estate. By mid-year, even the badly manipulated CPI is running up +4%. 

Surprise #6 Inflation and Interest Rates Rip Higher Leading to A Valuation Reset (Lower) For Equities in 2021  At first, the bond market reacts “normally” to rising inflation. The 10 year yield breaks 2% (to the upside). The stock market has a late spring/early summer wobble in response to rising rates and the possibility that target inflation will force higher rates. A mid-year Treasury auction goes poorly. The Federal Reserve, faced with the dilemma of choosing between a lower stock market and higher inflation, chooses to accept higher inflation. The Fed announces a cap on the 10 year yield at 1.5% and expresses its willingness to do whatever it takes to enforce it. In effect, the Fed becomes the Treasury buyer of first resort. This sends stocks, commodities and most everything briefly higher (towards the upper end of the 3600-3800 S&P trading range) – except the dollar, which falls 10%-15%. Though temporarily ignored by infinite liquidity and easing financial conditions at all costs, it grows clear that Covid-19 spurred a dangerous leveraging up in the global economy that has been almost constantly in place since The Great Decession of 2008-09. Higher inflation and interest rates bring the “bond vigilantes” out of their long hibernation. Stocks fall by -15% over the last six months of the year as price earnings multiples contract in the face of the highest level of corporate defaults in over a decade (led by companies in the retail space and others that were already struggling prior to the virus). Credit spreads (now at record lows), widen dramatically, the CLO market collapses and private equity companies are among the worst market performers of the year. 

Surprise #7 A Decline in the U.S. Dollar Spurs an Advance In Gold (to $3,000/oz) and a Ramp of +50% in Bitcoin (to $40,000) – But Silver Is The Big Winner As It Doubles to Over $50/oz – Over easy policy, excessive liquidity, higher inflation and a rapid rollout in the Covid-19 vaccine powers the prices of cryptocurrencies and precious metals higher. Silver, however, is the league leader as the rapidly rising demand for silver in industrial applications creates a supply crunch late in the year. Another challenge on the supply side for silver is that more than half of mined silver supply is a by-product of zinc, lead and copper mining, making it tough for miners to meet the surging excess proportional demand for silver. Precious metals and crypto currency prices peak in the third quarter. 

Surprise #8 Congress Acts On the SALT Deduction  Congress either repeals the SALT deduction limit or raises the cap from $10,000 to $25,000. Centrist Ray McGuire wins the June Democratic primary for New York City Mayor and, upon his election in November initiates bold moves to revitalize NYC. Residents move back and housing activity and prices fall in the suburbs under the weight of those initiatives and stretched home affordability. 

Surprise #9 The Fallout From Brexit Causes Trade and Other Chaos in Europe – Badly Shaking the UK and European Economies 

Surprise #10 France’s Economy Approaches The Financial Brink – Weighed down by one of the worst debt to GDP ratios in Europe and sub zero interest rates, two of the country’s largest banks fail. In a desperate position, in which France actually faces systemic risk, the country begs for assistance from Germany in order to get the ECB to print enough currency to posture a bailout of France’s banking system. President Emmanuel Micron steps down. 

Surprise #11 Broad Regulatory Actions Against Big Tech Results In A More Rapid Pivot From Growth to Value – FANG Becomes GATFAT! – Antitrust actions against Facebook (FB) , Alphabet (GOOGL) and Amazon (AMZN) become a genuine worry. In response to Derek Chauvin being acquitted in the George Floyd case, rioting ensues and the social media platforms are blamed for fanning the literal flames as Minneapolis is all but burned to the ground. The Rule 230 exemption is repealed. Meanwhile Europe begins imposing punitive taxes on U.S. internet giants. Finally, China retaliates to Biden continuing Trumps policy of going after Chinese companies with its own claims about Apple (AAPL) (illegal monopoly) and Tesla (TSLA) (unsafe cars). Google, Apple, Twitter (TWTR) , Facebook, Amazon and Tesla get redubbed GATFAT, as the impact of their prior overblown markets caps on portfolios is broadly felt by the Indexers and other investors. 

Surprise #12 China’s Economy Sputters Under Massive Debts and Crackdown on Tech Giants – Leading To Some Moderation In Xi’s Policies 

Surprise #13 Despite Strong 4Q2020 Performance, Bank Stocks Lead the Market in The First Half of the Year  As tech falters under the weight of an existential antitrust threat, financials prosper. Citigroup (C) trades at $75, Wells Fargo (WFC) and Bank of America (BAC) trade at $35 and JP Morgan’s (JPM) price approaches $140/share by the early summer. 

Surprise #14 Goldman Sachs Goes Private In 2Q2021 – The announcement marks a high-water mark for equities in 2Q2021. 

Surprise #15 Trump Is Barred From Twitter – Within one week after President-Elect Biden’s inauguration, Twitter suspends former President Trump’s Twitter account for tweeting false claims about the “stolen” Presidential election. Upon the news of the Twitter suspension announcement, Twitter’s shares fall by over -$7 to $8/share (or by about -15%) in one day. (The shares bottom in the high $30s, where I load up!)

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Long GS (small), MS (small), GLD (large), AMZN (small), GOOGL (small), GM (small), GLD (large), C, JPM, WFC, BAC, XLF.

Short TLT, SPY (large), QQQ (large), AAPL, TSLA (large).

Tyler Durden
Mon, 12/28/2020 – 15:02

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Second Circuit Rules for Agudath Israel and Brooklyn Diocese

Today, a Second Circuit panel (Livingstong, Park, Menashi) decided the consolidated cases of Agudath Israel of America v. Cuomo and Roman Catholic Diocese of Brooklyn v. Cuomo. Judge Park wrote the majority opinion. The court reviewed Governor Cuomo’s numerical caps with strict scrutiny, and declared them unconstitutional. The court remanded to the district court the question of whether the percentage caps are lawful. At this point, I doubt Governor Cuomo will risk appealing to the Supreme Court.

First, the court found that strict scrutiny was warranted, in light of the Supreme Court’s per curiam Diocese decision:

“To determine neutrality, we begin with the [Order’s] text, ‘for the minimum requirement of neutrality is that a [government policy] not discriminate on its face.'” Id. (quoting Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 5 U.S. 520, 533 (1993)). The Order fails this basic standard by explicitly imposing on  “houses of worship” restrictions inapplicable to secular activities. “In a red zone, while a synagogue or church may not admit more than 10 persons, businesses categorized as ‘essential’ may admit as many people as they wish,” subject to only the less stringent 50% capacity limit applicable to all businesses. Roman Cath. 10 Diocese, 141 S. Ct. at 66. And “[t]he disparate treatment is even more striking” in 11 orange zones, where “attendance at houses of worship is limited to 25 persons” but most non-essential businesses must comply with only the generally applicable 13 50% capacity limit. Id. The fixed capacity limits thus “cannot be viewed as neutral because they single out houses of worship for especially harsh treatment.” Id. . . .

Here, the court considers whether houses of worship are treated differently that any secular activity, and not just a comparable secular activity. Here, the court correctly rejected the Chief’s comparator approach from South Bay, and adopted the correct comparator approach from Diocese. (Ninth Circuit, take note).

Indeed, the panel stated that Diocese “supplanted” South Bay.

The district courts, motions panel, and Governor also relied heavily on the Chief Justice’s concurring opinion in South Bay. Whatever persuasive value that opinion may have had in the early months of the COVID-19 pandemic, the Supreme Court’s decision in Roman Catholic Diocese has supplanted South Bay. See Roman Cath. Diocese, 141 S. Ct. at 70 (Gorsuch, J., concurring) (“Rather than apply a nonbinding and expired concurrence from South Bay, courts must resume applying the Free Exercise Clause.”).

Second, the Court criticizes the Governor’s framework of designating certain businesses as “essential.” :

Moreover, the Order does not impose generally applicable public-health guidelines, like requiring masks and distancing or limiting capacity by time. Instead, the Governor has selected some businesses (such as news media, financial services, certain retail stores, and construction) for favorable treatment, calling them “essential,” while imposing greater restrictions on “non-essential” activities and religious worship. That lack of general applicability is also subject to strict scrutiny.

“Essential” is a synonym for “important,” as determined by Cuomo. Here, the Court seems to embrace Justice Gorsuch’s Diocese concurrence

Further, although the Governor asserts that “all” activities not restricted by the Order present lesser risks of COVID-19 transmission than religious worship, he has never claimed that the unrestricted category of “essential” activities was  created based on transmission risk. Instead, “[t]he only explanation for treating  religious places differently seems to be a judgment that what happens there just  isn’t as ‘essential’ as what happens in secular spaces.” Roman Cath. Diocese, 141 4 S. Ct. at 69 (Gorsuch, J., concurring). Courts apply strict scrutiny to assess whether a government policy impermissibly “‘devalues religious reasons’ for congregating ‘by judging them to be of lesser import than nonreligious reasons.'” Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603, 2614 (2020) (Kavanaugh, J., dissenting) (quoting Lukumi, 508 U.S. at 537–38).

Third, the Court found that the percentage limits (which SCOTUS did not review) would also be reviewed with strict scrutiny:

The Supreme Court’s Roman Catholic Diocese opinion addressed only the fixed capacity limits, but the same reasoning applies to the Order’s percentage capacity limits, which by their own terms impose stringent requirements only on houses of worship. One could easily substitute the percentage capacity limits for the fixed capacity limits into the Supreme Court’s discussion of strict scrutiny without altering the analysis. Thus, both the fixed capacity and percentage capacity limits on houses of worship are subject to strict scrutiny.

Fourth, the Court found that the numerical limits are not narrowly tailored:

Regarding the fixed capacity limits, the Governor has never seriously contended that they are narrowly tailored to stem the spread of COVID-19, and he 4 appears to concede as much here. Those limits are “far more severe than has been shown to be required to prevent the spread of the virus at [Appellants’] services,” particularly because the Governor has pointed to no evidence of any outbreaks related to Appellants’ churches and synagogues. Roman Cath. Diocese, 141 S. Ct. at 8 67. Most obviously, the 10- and 25-person restrictions do not account in any way for the sizes of houses of worship in red and orange zones. Two Diocese churches originally affected by the Order seat over 1,000 people, and more than ten accommodate over 700. Likewise, Agudath Israel of Kew Garden Hills has a capacity of over 400. “It is hard to believe that admitting more than 10 people to a 1,000-seat church or 400-seat synagogue would create a more serious health risk than the many other activities that the State allows.” Id.

Here, the Court forcefully rejected the pernicious stereotype that houses of worship cannot be trusted to follow health guidelines.

The fixed capacity limits also bear little relation to the particular COVID-19transmission risks the Governor identifies. As an initial matter, the Governor’sidentification of those risks relied on broad generalizations made by public-health  officials about inherent features of religious worship. See, e.g., App’x, No. 20-3572, at 294 (“Generally, the congregants are arriving and leaving at the same period and are together over an extended period of time.”). The government must normally refrain from making assumptions about what religious worship  requires. See Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2055 5 (2020) (“The First Amendment protects the right of religious institutions ‘to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.'” Even taking these assertions at face value, however, the Governor must explain why the Order’s density restrictions targeted at houses of worship are more effective than generally applicable restrictions on the duration of gatherings or requirements regarding masks and distancing. The Governor may not, of course, presume that religious communities will not comply with such generally applicable regulations.

So many Governors, and judges simply presume that people of faith cannot be trusted. Last week, I wrote:

And houses of worship follow rigorous protocols. They prohibit singing and chanting. They time their exit and entry to prohibit crowding. Judges are wedded to this March 2020 stereotype where people chant and scream at the top of their lungs for hours on end. This narrative is simply false. Please, get on with the times.

This sort of generalization would never fly for any other classification.

Fifth, the Court declines to determine whether the percentage limits are narrowly tailored. That issue is remanded to the District Court.

Before the Supreme Court’s Roman Catholic Diocese decision, all parties to this litigation were focused primarily on the Order’s fixed capacity limits. Agudath Israel chose to challenge only those limits in its application for injunctive relief in the Supreme Court. Similarly, Agudath Israel’s counsel represented to this Court during oral argument on its motion for an injunction pending appeal that it was not, at that time, objecting to the 25% capacity restriction. Under these circumstances, we remand Agudath Israel’s motion for a preliminary injunction as to the percentage capacity limits for the district court to decide in the first instance in light of the Supreme Court’s decision and this opinion.

Yet, the panel seems to suggest that the Governor’s defense of the percentage limits are a “post hoc rationalization.” And, the court suggests that there is no “contemporaneous evidence” about the justification behind the percentage limit.

Sixth, the Court clarified that Jacobson has no place in a First Amendment challenge. Indeed, the Second Circuit clarified one of its prior ruling that implicated Jacobson:

In Jacobson, the Supreme Court upheld a mandatory vaccination law against a substantive due process challenge. Jacobson predated the modern constitutional jurisprudence of tiers of scrutiny, was decided before the First Amendment was incorporated against the states, and “did not address the free exercise of religion.” Phillips v. City of New York, 775 F.3d 538, 543 (2d Cir. 2015); see Roman Cath. Diocese, 13 141 S. Ct. at 70 (Gorsuch, J., concurring) (“Jacobson hardly supports cutting the Constitution loose during a pandemic. That decision involved an entirely different mode of analysis, an entirely different right, and an entirely different kind of restriction.”). Indeed, the Jacobson Court itself specifically noted that “even if based on the acknowledged police powers of a state,” a public-health measure”must always yield in case of conflict with . . . any right which [the Constitution]gives or secures.” 197 U.S. at 25.

Amen. I am still disappointed that so many judges made this foundational error.

And, the court would not grant special deference to the government with respect to an enumerated right, even during an emergency:

But we grant no special deference to the executive when the exercise of emergency powers infringes on constitutional rights. That is precisely what the three-tiered framework for analyzing constitutional violations is for, and courts may not defer to the Governor simply because he is addressing a matter involving science or public health.

Seventh, the panel rejected the district court’s finding that Orthodox Jews can worship with “modifications”:

The court below concluded that Agudath Israel had not demonstratedirreparable harm because its congregants could “continue to observe theirreligion” with “modifications.” This was error. See, e.g., Hernandez v. Comm’r, 490 4 U.S. 680, 699 (1989) (“It is not within the judicial ken to question the centrality ofparticular beliefs or practices to a faith, or the validity of particular litigants’interpretations of those creeds.”). Religious adherents are not required to establishirreparable harm independent of showing a Free Exercise Clause violation because 8 a “presumption of irreparable injury . . . flows from a violation of constitutional rights.” Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996). Nevertheless, as Agudath Israel explained, Orthodox Jews are obligated to have an in-person minyan—a quorum—before some of Judaism’s most sacred rituals. Orthodox Jews also desist from using electronics on Shabbat, so in-person gatherings are necessary for Agudath Israel’s congregants. Appellants have demonstrated irreparable harm that would result without a preliminary injunction against enforcement of theOrder’s fixed capacity limits on houses of worship.

Observant Jews cannot worship by Zoom.

Seventh, the Court declined to consider Agudath Israel’s targeting claim.

Agudath Israel also argues that the Order is subject to strict scrutiny for the independent reason that the Governor “gerrymandered” the initial zone boundaries to target Orthodox Jewish communities. We need not reach this argument because we conclude that the Order discriminates against religion on its face.

Soon enough, Governor Cuomo will have to answer for his comments at that dreadful press conference.

Finally, the court expresses concern about the absolute power that Governor Cuomo has wielded since March.

On 15 March 7, 2020, Governor Cuomo declared a disaster emergency in the State, which allows him to exercise extraordinary executive powers. See N.Y. Exec. Law § 28. He can “temporarily suspend any statute, local law, ordinance, or orders, rules or regulations, or parts thereof, of any agency,” and can “issue any directive . . . necessary to cope with the disaster.” Id. § 29-a. Suspensions and directives under this law expire after 30 days, but the Governor may renew them an unlimited number of times. Id. The legislature of New York can terminate suspensions and directives “by concurrent resolution,” but the Governor’s actions pursuant to Executive Law § 29-a do not otherwise require legislative consultation or approval.  Id.

Governors have historically exercised this emergency authority in a limited  and localized manner, most often in response to natural disasters such as severe 10 storms or flooding. Governor Cuomo’s executive orders during the COVID-19 pandemic, however, have been unprecedented in their number, breadth, and duration. From March to December 2020, he has issued almost 90 executive orders relating to the pandemic. Those orders affect nearly every aspect of life in the State, including restrictions on activities like private gatherings and travel.

Civil libertarians have been quiet about this gross exercise of unchecked authority–presumably because they support the results. Decades ago, the ACLU would have intervened at every junction. Alas, that organization should changes its name to the APLU–the American Progressive Liberalism Union.

When the dust settles, I plan to write about possible legislative reforms. For example, in New York, the Governor’s emergency powers continue unless the legislature disapproves. I would flip that presumption. The Governor’s emergency powers would expire unless the legislature approves an extension of those powers. I would use the War Powers Resolution as a model. No one person should have carte blanche to regulate every facet of human existence. Especially not Andrew Cuomo.

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Spain Plans Registry For Those Who Refuse COVID Vaccine

Spain Plans Registry For Those Who Refuse COVID Vaccine

As Europe begins vaccinating the first wave of high-priority patients, a “glitch” has already emerged: many health-care workers and others have refused to take the vaccine, as skepticism and suspicion remain elevated.

A similar phenomenon has played out in the US, but to a less intense degree. But the situation, which we discussed last night, is now one of a variety of reasons, from a shortage of supplies and raw materials, to an uncooperative populace, that public-health officials are growing worried about hitting lofty vaccination targets.

And so, in Spain at least, government bureaucrats are fighting back, as Health Minister Salvador Illa warned the country would set up a “registry” for everybody who refuses the vaccine.

“What will be done is a registry, which will be shared with our European partners… of those people who have been offered it and have simply rejected it,” he said.

“It is not a document which will be made public and it will be done with the utmost respect for data protection.”

He added that the registry would not be made public, or delivered to employers, which begs the question: why else would the government keep a database of that information?

An AFP report on the health minister’s remarks wasn’t exactly clear about the motive, which leads us to believe that it’s just another tactic by the Spanish government, which has sworn up and down, like other European governments, that vaccinations wouldn’t be mandatory,.

Polls released over the last couple of months appear to reflect a steep and unexplained drop in the number of respondents who claim to be skeptical, or otherwise indicate that they would like to wait before getting the vaccine, has plunged as the first doses have been doled out and administered.

Spain’s government expects to have between 15MM and 20MM people out of its population of 47MM vaccinated against the virus by June in order to salvage next summer’s tourism season.

“The way to defeat the virus is to vaccinate all of us or the more the better,” Illa said.

Speculation has also been brewing about what might happen to those who refuse to inoculate themselves, and/or their children, even as public officials have talked up the importance of “transparency” and – of course – freedom of individual choice.

To be sure, the Spanish aren’t alone. Many other Europeans share their anxieties, which have been stoked by government table-pounding about vaccine safety (any skepticism is verboten), the rapid pace of development, and the use of the new mRNA technology. For example, independent pollster Alpha Research said its recent survey suggested that fewer than one in five Bulgarians from the first groups to be offered the vaccine – frontline medics, pharmacists, teachers and nursing home staff – planned to volunteer to get a shot. A recent IFOP poll found that roughly 41% of French would take the shot if available, which means nearly 60% would not.

Which is why, looking ahead, we wouldn’t be surprised to see more heavy handed measures employed (immunity passports?) as officials grow increasingly desperate to hit their (largely speculative) herd immunity targets.

Tyler Durden
Mon, 12/28/2020 – 14:40

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How Biden Can Terminate Trump’s Border Wall Project—And Save Money and Protect Property Rights in the Process

Border Wall 2

One of the signature projects of the Trump era was the effort to build a wall on the US southern border with Mexico. In order to achieve that goal, Trump declared a “national emergency” and used that declaration and other legally dubious tactics to divert funds to pay for wall construction that Congress had refused to support. President-elect Joe Biden has vowed that “not another foot” of Trump’s wall will be built once he takes office, and also plans to immediately terminate the state of emergency, and stop using eminent domain to seize private property for wall construction.

Biden can easily stop construction, protect property owners from further takings of their land, and save money in the process. By taking these steps, he could save federal money, and protect the property rights of thousands of people, all for the price of ending a project that causes great harm for little, if any, benefit. It is also likely, that he can terminate the litigation over the border wall, thereby mooting out the Supreme Court’s decision to review one of the lower-court rulings against the legality of Trump’s funding diversions for the wall.

It should be emphasized that Biden can do all of the above even under the Trump administration’s view of the legal issues involved. The Trump position is that the emergency declaration and the funding versions are discretionary decisions left up to the president. If so, that which one president can do, the next can just as easily undo. If on the other hand, the emergency declaration and the various funding diversions are actually illegal —as I and other critics have argued, and several lower court decisions have ruled (in the case of the funding diversions; no court has yet ruled on the legality of the emergency declaration itself), Biden would be on even firmer ground in terminating the wall project.

When it comes to terminating active eminent domain cases attempting to seize private property, the government always has discretion to withdraw such suits, at least until the time they are completed. That’s basic eminent domain law.

Terminating the wall project in this way would involve some costs, including cleanup of building sites, and settlements with contractors. Nonetheless, the Pentagon estimates that termination would still save some $2.6 billion on net. That’s only a tiny fraction of the gargantuan federal budget. But it’s still better than nothing.

Moreover, that figure does not include avoiding harm to thousands of property owners who would otherwise have their land seized for the project. In order to fully implement Trump’s vision, the government would need to take land from many thousands of private property owners, as well as conservation institutions and Native American tribes. As of November, the administration already had taken 109 properties (totaling 285 acres), and had plans to condemn another almost 5000 acres. Other owners were forced to sell through coercive “agreements” reached under the threat of eminent domain.

The administration has filed new takings cases since Trump’s defeat in the November election, in an effort to get as much done as possible before Trump leaves office on January 20. But many owners are resisting condemnation, and such legal battles routinely cause delays long enough to ensure that the cases are unlikely to be resolved before Trump’s term ends.

While owners are legally entitled to “fair market value” compensation for their land, that doesn’t account for the “subjective value” that many have in their property, which goes beyond its market value. Moreover, the Department of Homeland Security has a long history of lowballing owners, and using various types of skullduggery to deny them even the fair market value compensation the law says they are owed.

Terminating Trump’s border wall project would prevent further harm of this kind to thousands of people. While the GOP claims to be a party that values private property rights, Trump’s border wall plan will—if ever completed—be one of the biggest federal-government land grabs in modern history.

As noted above, terminating the border wall project would also likely put an end to the otherwise upcoming Supreme Court case addressing the legality of one of the border wall funding diversions. It is hard to say which way the Court would have gone on this. But sadly, there is a real chance the conservative majority on the Court would have ruled for the government on either substantive or procedural grounds. Ending the case would leave in place several lower court decisions ruling against the legality of the funding diversion, as well as a valuable DC Circuit decision ruling (written by famed conservative Judge David Sentelle) that the House of Representatives has standing to challenge it. These rulings would serve as useful obstacles to similar skullduggery by future presidents, Democrat and Republican alike.

To make certain that the lower court rulings remain on the books, the Biden administration should reach settlements with the plaintiffs, rather than simply relying on the Supreme Court (or lower courts) to dismiss the cases as moot. Most likely, Biden need only give the plaintiffs what he himself has already said he wants to do: a promise to terminate construction and an admission that the funding diversions were illegal (the latter point is in line with Biden’s own stated positions).

In some cases, the Supreme Court has stayed lower-court injunctions in wall cases, on various procedural grounds. But the Court hasn’t yet ruled on the merits of any of these cases, and the injunctions will become irrelevant if the Biden administration terminates the wall-building project.

While Biden can easily block further construction and stop any ongoing eminent domain cases, it is less clear whether he can return land already taken by the government, but perhaps not yet used for building. I believe it should be feasible to return the latter if the new administration takes the (in my view, correct) position that these takings lacked proper legislative authorization, and therefore were illegal to begin with. However, I admit there may be angles I am missing here, having to do with procedural issues and perhaps with laws relating to the disposition of federally owned land.

Similar issues arise with the possibility of denying compensation to contractors for the termination of their building contracts, on the grounds that those contracts were illegal to begin with, because Congress never authorized funding for the projects in question, and Trump’s diversions were illegal. My own tentative view is that the government has no legal obligation to pay anything to contractors whose contracts were illegal, because the money they were promised was never lawfully appropriated. Indeed, paying any money at all in such situation just compounds the illegality. That said, I am not an expert on the law of government contracts, and I admit I might be missing something here.

Finally, Biden has not promised to eliminate those barriers the Trump administration has already erected, and may well leave them in place. If so,  that would be a mistake. It would be better to have them torn down. If the federal government does not have any better use for the property in question, it should sell it to the private sector, and use the proceeds to pay down some small portion of the rapidly ballooning national debt. Here too, however, I am not certain whether the president has the legal authority to destroy or sell off current federal property, and will leave those issues to those with greater expertise.

Even if Biden does everything discussed above, this would not fully eliminate the problems exposed by Trump’s 2019 emergency declaration and funding diversion. We would still need reforms to tighten up constraints on federal-government uses of eminent domain (including reforming the compensation system so as to prevent future low-balling of property owners). We will also still badly need reforms putting an end to permanent presidentially declared “national emergencies,” along the lines recently proposed by Libertarian Rep. Justin Amash, and earlier by Republican Senator Mike Lee.

Biden cannot fix these broader problems on his own (even assuming he wants to). Addressing them would require congressional action, which I am far from optimistic will happen anytime soon. Indeed, some congressional Democrats might even welcome the opportunity to empower a president of their own party to use these powers for purposes more congenial to the political left.

That said, the best should not be enemy of the good. Terminating the border wall project is valuable in itself, and leaving lower court decisions against it in place would create useful precedents for the future.

 

 

 

 

 

 

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Local Governments Play Scrooge To Stop People from Helping the Needy

freefood_1161x653

It wouldn’t truly be the Christmas season here at Reason without a report about officials trying to shut down a project to help the needy. This year’s tale comes from Roslindale, a suburb of Boston.

There, as the coronavirus pandemic played out, residents looked for ways to help the needy in their neighborhood. A group of volunteers started putting together a community food pantry, salvaging groceries from local stores before they’d be tossed out as waste. A local therapist agreed to host the group’s fridge and freezer in her backyard. The group was serving more than 50 people every Friday.

Then local officials came calling. The Boston Inspectional Services Department warned the volunteers that they were operating an “illegal food pantry” and that they could, if they continued, face $1,000 fines and a year in prison.

The department insisted this was all about safety. Officials told The Boston Globe that they were happy to “work with the organizers of this operation to make sure the food being offered is safe for recipients.” But that’s what they said after the newspaper contacted them. The therapist, Rachel Stanton, told the paper she had asked the authorities for help to bring the pantry up to snuff, but they seemed mostly interested in shutting her down. That’s not how officials behave if they a mutual aid project to continue. It is how they behave if some of Stanton’s neighbors have been complaining.

The volunteers moved the pantry to a nearby elementary school, in hopes that this would satisfy the government. And now that the group has gone to the press, the authorities seem to be a bit more conciliatory. But it’s telling that even when an epidemic has stretched government services to the limit, officials’ first instinct was to try to shut down what they can’t control.

These tiny food pantries are on the rise across the country, being a simple, easy way to help people. Roslindale isn’t the only place where they’ve run into trouble. Earlier this year, a woman who launched one in Washington state was shut down and threatened with fines. (She then filed a lawsuit with the assistance of the Institute for Justice.) Other pantries have been shut down in California and Pennsylvania. Officials usually justify these crackdowns by citing health concerns, but when you look deeper you usually find that the underlying problem is people who either think the pantries are eyesores or don’t like it when the needy congregate.

Bonues video: In 2012, ReasonTV showed how the mayor of Philadelphia tried to stop charities from feeding the homeless in public parks:

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How Biden Can Terminate Trump’s Border Wall Project—And Save Money and Protect Property Rights in the Process

Border Wall 2

One of the signature projects of the Trump era was the effort to build a wall on the US southern border with Mexico. In order to achieve that goal, Trump declared a “national emergency” and used that declaration and other legally dubious tactics to divert funds to pay for wall construction that Congress had refused to support. President-elect Joe Biden has vowed that “not another foot” of Trump’s wall will be built once he takes office, and also plans to immediately terminate the state of emergency, and stop using eminent domain to seize private property for wall construction.

Biden can easily stop construction, protect property owners from further takings of their land, and save money in the process. By taking these steps, he could save federal money, and protect the property rights of thousands of people, all for the price of ending a project that causes great harm for little, if any, benefit. It is also likely, that he can terminate the litigation over the border wall, thereby mooting out the Supreme Court’s decision to review one of the lower-court rulings against the legality of Trump’s funding diversions for the wall.

It should be emphasized that Biden can do all of the above even under the Trump administration’s view of the legal issues involved. The Trump position is that the emergency declaration and the funding versions are discretionary decisions left up to the president. If so, that which one president can do, the next can just as easily undo. If on the other hand, the emergency declaration and the various funding diversions are actually illegal —as I and other critics have argued, and several lower court decisions have ruled (in the case of the funding diversions; no court has yet ruled on the legality of the emergency declaration itself), Biden would be on even firmer ground in terminating the wall project.

When it comes to terminating active eminent domain cases attempting to seize private property, the government always has discretion to withdraw such suits, at least until the time they are completed. That’s basic eminent domain law.

Terminating the wall project in this way would involve some costs, including cleanup of building sites, and settlements with contractors. Nonetheless, the Pentagon estimates that termination would still save some $2.6 billion on net. That’s only a tiny fraction of the gargantuan federal budget. But it’s still better than nothing.

Moreover, that figure does not include avoiding harm to thousands of property owners who would otherwise have their land seized for the project. In order to fully implement Trump’s vision, the government would need to take land from many thousands of private property owners, as well as conservation institutions and Native American tribes. As of November, the administration already had taken 109 properties (totaling 285 acres), and had plans to condemn another almost 5000 acres. Other owners were forced to sell through coercive “agreements” reached under the threat of eminent domain.

The administration has filed new takings cases since Trump’s defeat in the November election, in an effort to get as much done as possible before Trump leaves office on January 20. But many owners are resisting condemnation, and such legal battles routinely cause delays long enough to ensure that the cases are unlikely to be resolved before Trump’s term ends.

While owners are legally entitled to “fair market value” compensation for their land, that doesn’t account for the “subjective value” that many have in their property, which goes beyond its market value. Moreover, the Department of Homeland Security has a long history of lowballing owners, and using various types of skullduggery to deny them even the fair market value compensation the law says they are owed.

Terminating Trump’s border wall project would prevent further harm of this kind to thousands of people. While the GOP claims to be a party that values private property rights, Trump’s border wall plan will—if ever completed—be one of the biggest federal-government land grabs in modern history.

As noted above, terminating the border wall project would also likely put an end to the otherwise upcoming Supreme Court case addressing the legality of one of the border wall funding diversions. It is hard to say which way the Court would have gone on this. But sadly, there is a real chance the conservative majority on the Court would have ruled for the government on either substantive or procedural grounds. Ending the case would leave in place several lower court decisions ruling against the legality of the funding diversion, as well as a valuable DC Circuit decision ruling (written by famed conservative Judge David Sentelle) that the House of Representatives has standing to challenge it. These rulings would serve as useful obstacles to similar skullduggery by future presidents, Democrat and Republican alike.

To make certain that the lower court rulings remain on the books, the Biden administration should reach settlements with the plaintiffs, rather than simply relying on the Supreme Court (or lower courts) to dismiss the cases as moot. Most likely, Biden need only give the plaintiffs what he himself has already said he wants to do: a promise to terminate construction and an admission that the funding diversions were illegal (the latter point is in line with Biden’s own stated positions).

In some cases, the Supreme Court has stayed lower-court injunctions in wall cases, on various procedural grounds. But the Court hasn’t yet ruled on the merits of any of these cases, and the injunctions will become irrelevant if the Biden administration terminates the wall-building project.

While Biden can easily block further construction and stop any ongoing eminent domain cases, it is less clear whether he can return land already taken by the government, but perhaps not yet used for building. I believe it should be feasible to return the latter if the new administration takes the (in my view, correct) position that these takings lacked proper legislative authorization, and therefore were illegal to begin with. However, I admit there may be angles I am missing here, having to do with procedural issues and perhaps with laws relating to the disposition of federally owned land.

Similar issues arise with the possibility of denying compensation to contractors for the termination of their building contracts, on the grounds that those contracts were illegal to begin with, because Congress never authorized funding for the projects in question, and Trump’s diversions were illegal. My own tentative view is that the government has no legal obligation to pay anything to contractors whose contracts were illegal, because the money they were promised was never lawfully appropriated. Indeed, paying any money at all in such situation just compounds the illegality. That said, I am not an expert on the law of government contracts, and I admit I might be missing something here.

Finally, Biden has not promised to eliminate those barriers the Trump administration has already erected, and may well leave them in place. If so,  that would be a mistake. It would be better to have them torn down. If the federal government does not have any better use for the property in question, it should sell it to the private sector, and use the proceeds to pay down some small portion of the rapidly ballooning national debt. Here too, however, I am not certain whether the president has the legal authority to destroy or sell off current federal property, and will leave those issues to those with greater expertise.

Even if Biden does everything discussed above, this would not fully eliminate the problems exposed by Trump’s 2019 emergency declaration and funding diversion. We would still need reforms to tighten up constraints on federal-government uses of eminent domain (including reforming the compensation system so as to prevent future low-balling of property owners). We will also still badly need reforms putting an end to permanent presidentially declared “national emergencies,” along the lines recently proposed by Libertarian Rep. Justin Amash, and earlier by Republican Senator Mike Lee.

Biden cannot fix these broader problems on his own (even assuming he wants to). Addressing them would require congressional action, which I am far from optimistic will happen anytime soon. Indeed, some congressional Democrats might even welcome the opportunity to empower a president of their own party to use these powers for purposes more congenial to the political left.

That said, the best should not be enemy of the good. Terminating the border wall project is valuable in itself, and leaving lower court decisions against it in place would create useful precedents for the future.

 

 

 

 

 

 

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Local Governments Play Scrooge To Stop People from Helping the Needy

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It wouldn’t truly be the Christmas season here at Reason without a report about officials trying to shut down a project to help the needy. This year’s tale comes from Roslindale, a suburb of Boston.

There, as the coronavirus pandemic played out, residents looked for ways to help the needy in their neighborhood. A group of volunteers started putting together a community food pantry, salvaging groceries from local stores before they’d be tossed out as waste. A local therapist agreed to host the group’s fridge and freezer in her backyard. The group was serving more than 50 people every Friday.

Then local officials came calling. The Boston Inspectional Services Department warned the volunteers that they were operating an “illegal food pantry” and that they could, if they continued, face $1,000 fines and a year in prison.

The department insisted this was all about safety. Officials told The Boston Globe that they were happy to “work with the organizers of this operation to make sure the food being offered is safe for recipients.” But that’s what they said after the newspaper contacted them. The therapist, Rachel Stanton, told the paper she had asked the authorities for help to bring the pantry up to snuff, but they seemed mostly interested in shutting her down. That’s not how officials behave if they a mutual aid project to continue. It is how they behave if some of Stanton’s neighbors have been complaining.

The volunteers moved the pantry to a nearby elementary school, in hopes that this would satisfy the government. And now that the group has gone to the press, the authorities seem to be a bit more conciliatory. But it’s telling that even when an epidemic has stretched government services to the limit, officials’ first instinct was to try to shut down what they can’t control.

These tiny food pantries are on the rise across the country, being a simple, easy way to help people. Roslindale isn’t the only place where they’ve run into trouble. Earlier this year, a woman who launched one in Washington state was shut down and threatened with fines. (She then filed a lawsuit with the assistance of the Institute for Justice.) Other pantries have been shut down in California and Pennsylvania. Officials usually justify these crackdowns by citing health concerns, but when you look deeper you usually find that the underlying problem is people who either think the pantries are eyesores or don’t like it when the needy congregate.

Bonues video: In 2012, ReasonTV showed how the mayor of Philadelphia tried to stop charities from feeding the homeless in public parks:

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Goldman Now Sees Q1 GDP Surging 5% Thanks To $900BN Covid Stimulus

Goldman Now Sees Q1 GDP Surging 5% Thanks To $900BN Covid Stimulus

It was just one month ago when Wall Street’s best and brightest – which these days also means most clueless – personified in this case by JPMorgan’s chief economists, predicted that GDP in the first quarter of 2021 would contract by 1%, effectively putting the US on collision course with a double dip recession.

Just before Thanksgiving, JPM economist Michael Feroli wrote that while the economy powered through the July coronavirus wave, “at that time the reopening of the economy provided a powerful tailwind to growth. The economy no longer has that tailwind; instead it now faces the headwind of increasing restrictions on activity.” Meanwhile, “the holiday season—from Thanksgiving through New Year’s—threatens a further increase in cases. This winter will be grim, and we believe the economy will contract again in 1Q, albeit at “only” a 1.0% annualized rate.” The bottom line, or rather square, is shown in the table below:

Well, in a world in which even the top economists are blindsided by every single event – events which it is their job to anticipate, predict and price in – just one month later everything has changed once again and in a note from Goldman’s economists this time, we read that contrary to JPM’s dour forecasts, Q1 GDP will (should) actually be a great quarter for the economy, and as a result of the just approved $900BN stimulus bill and ongoing vaccine rollout, Goldman now expects G1 GDP to grow 5.0%, up from 3.0% previously, and sees full year GDP rising to 5.8% (from 5.3% previously), to wit:

President Trump approved a COVID relief package worth roughly $900bn (4% of GDP). The package is slightly larger and comes earlier than the roughly $700bn package we had previously assumed in our forecasts…. we upgrade our 2021 growth forecasts to incorporate this additional fiscal stimulus. 

Goldman justified its action by noting that “the COVID relief package includes $600/person payments to individuals, which we had not assumed in our prior forecast.” The package also provides for additional unemployment benefits and support for small businesses earlier than we had assumed. As a result, Goldman now expects a significantly larger rise in disposable income in Q1, although due to the virus resurgence, the bank expects that the spending impact of this large increase in income will be more lagged than usual. (Goldman caveats by noting that the Democratic-controlled House is set to vote on Monday to increase the stimulus payments to $2,000, a measure supported by Trump but with much less support from the Republican-controlled Senate. While it is not expected to pass, a rise to $2,000 would increase disposable income in Q1 significantly further, to levels above 2020 Q2.)

As a result, Goldman now forecasts 2021Q1 growth of +5.0% (vs. +3.0% previously), which implies meaningfully higher levels of output in all four quarters and lifts 2021 annual growth to +5.8% (vs. +5.3% previously) and Q4/Q4 growth to +5.6% (vs.+5.1% previously).  Goldman’s new GDP forecast at the monthly level is shown below:

How do Goldman’s upward-revised estimates compare to consensus? The chart below compares the two, and showing that Goldman’s forecast for 2021Q1 growth is now meaningfully above consensus expectations of +2.5% (for what it’s worth, JPM also hiked its GDP estimate to 0.5% from a -0.1% contraction). The bank also expects substantially faster sequential growth than consensus in 2021Q2–Q4.  As a result, Goldman’s GDP forecast for 2021 as a whole is now 1.9% above consensus on a full-year basis (+5.8% vs. +3.9%) and 2.1pp above consensus on a Q4/Q4 basis (+5.6%vs. +3.5%).

While on the surface this is great news for the economy, the only problem we find with the above is that Goldman’s economists are actually quite terrible at predicting the future (they are great, however, at explaining what happened in the past). As such, the biggest risk here is Goldman’s optimism itself – all else equal, that would mean that the US is about to slide into a new depression.

Tyler Durden
Mon, 12/28/2020 – 14:20

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Is Anthony Fauci Right That Federalism Undermined the U.S. Response to COVID-19?

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Anthony Fauci, an infectious disease expert who has played a leading role in advising the Trump administration on COVID-19, thinks federalism has undermined America’s response to the pandemic. “The states are very often given a considerable amount of leeway in doing things the way they want to do it, as opposed to in response to federal mandates, which are relatively rarely given,” Fauci, who has directed the National Institute of Allergy and Infectious Diseases since 1984, recently told BBC Radio 4. “What we’ve had was a considerable disparity, with states doing things differently in a nonconsistent way….There have been a lot of factors that have led to the fact that, unfortunately for us, the United States has been the hardest-hit country in the world, but I believe that disparity among how states do things has been a major weakness in our response.”

The “leeway” that bothers Fauci is required by the Constitution, which gives states the primary responsibility for dealing with public health threats under a broad “police power” that the federal government was never given. So his beef is not simply with the way COVID-19 policy happened to play out in the United States. It is an objection to the basic structure of our constitutional design, which limits the federal government to specifically enumerated powers that do not include a general mandate to fight communicable diseases or protect public health. Although Congress has invoked its authority over interstate and international commerce to justify certain disease control measures, the power to deal with epidemics lies mainly with the states, as the Supreme Court has repeatedly recognized.

That point aside, is Fauci right that federalism has proven to be “a major weakness in our response”? A centralized response to COVID-19 might have been better in some respects, assuming that the federal government was wise, knowledgeable, and competent enough to settle on an ideal policy for the entire country. But that assumption is manifestly wrong.

In the areas where the federal government has taken the lead, including vaccine approval, the deployment of virus tests, and advice on face masks, its performance has been characterized by striking incompetence, bureaucratic intransigence, bewildering inconsistency, and lethal foot dragging. Given that track record, trusting the feds to decide every detail of COVID-19 control measures seems ill-advised, even if the Constitution permitted it.

While state and local officials are not necessarily smarter or more competent than national politicians and federal bureaucrats, they are more familiar with the local conditions that should inform COVID-19 policies and more accountable to the people affected by their decisions. In a huge country that includes sparsely populated, largely rural states as well as states with highly concentrated urban centers, a one-size-fits-all policy formulated in Washington, D.C., makes little sense. U.S. jurisdictions also differ widely in the extent and speed of virus transmission, the capacity and quality of their health care systems, and demographics that affect the infection fatality rate, which varies dramatically across the country. Such factors are clearly relevant in weighing the costs and benefits of interventions aimed at curtailing the epidemic.

The proliferation of “nonconsistent” policies that result in “disparity” among states also creates an opportunity for learning from the successes and failures of different approaches. Are states that imposed lockdowns early and relaxed them gradually doing better than states that acted later, lifted restrictions faster, or never imposed general lockdowns at all? Does allowing businesses such as restaurants to operate with COVID-19 safeguards create an intolerable risk? Do bans on outdoor activities make any sense at all? Do mask mandates make an important difference? What is the best way to protect high-risk groups, such as nursing home residents and prisoners? It would be much harder even to try answering questions like these without the jurisdictional variation that Fauci decries.

However you come down on those issues, the risk of centralization should be clear. If you believe that lockdowns played an important role in reducing COVID-19 deaths, would you want to trust a president who is leery of that policy and asserts “total” authority to reopen the economy? If you think face masks are a vital tool for reducing virus transmission, would you want a president who disagrees to decide whether they should be legally required? If you think some states have failed abysmally at protecting prisoners and nursing home residents, are you confident that a federal policy would be better?

Incidentally, the U.S. is not, as Fauci claimed, “the hardest-hit country in the world.” While our COVID-19 numbers are certainly nothing to brag about, the United States currently ranks 14th in deaths per capita, according to Worldometer’s tallies. Developed countries such as the United Kingdom, Italy, Spain, and Belgium—all of which imposed sweeping restrictions on social and economic activity at the national level—are doing worse by that measure. The U.K., where Fauci’s interview slamming federalism was broadcast, has imposed national lockdowns repeatedly, but its death rate is still somewhat higher than the U.S. rate. Sweden, which eschewed such measures, ranks 27th in per capita COVID-19 deaths, much higher than its Scandinavian neighbors but lower than many other European countries.

Many things went wrong with the U.S. response to COVID-19. But the most conspicuous failures happened at the federal level, where Fauci seems to think all the important decisions should have been made. The wisdom of that approach is by no means obvious from interstate or international comparisons. Centralization makes sense only if you ignore relevant differences in local circumstances and if you trust the federal government to make the right choices. If it errs, whether by failing to take steps that would have substantially reduced the death toll or by imposing restrictions that cost much more than they are worth, all of us have to live with the consequences.

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Could Nancy Pelosi Lose The Speakership To Kevin McCarthy?

Could Nancy Pelosi Lose The Speakership To Kevin McCarthy?

Authored by Thomas Lifson via AmericanThinker.com,

Is karma going to come calling for Nancy Pelosi and the Democrats? I know that it sounds crazy, yet another improbable scenario in a season when our hopes have been dashed repeatedly after hearing predictions that a stolen presidential election would be rectified in the courts. But the scenario that follows is far from impossible, given House rules for voting in person, the tiniest House of Representatives majority (9 votes) in decades, the deep ideological split within the Democrats (downplayed or ignored by the partisan media) and the fading lucidity of Nancy Pelosi.

Mike Lillis and Scott Wong of The Hill point out that

…lawmakers must be present on the House floor to cast their vote for Speaker, precluding the option for members to vote remotely, as many have done throughout the pandemic. [emphasis added]

This differs from the rules under which House members have been voting since COVID became a factor.  Matt Margolis of PJ Media explains:

While House members can vote by proxy due to emergency rules adopted in May to protect members from getting and spreading COVID-19, but, as The Hill reports, “the proxy-voting rule expires with the new Congress, requiring lawmakers to be in the Capitol in person if they want to participate in the Jan. 3 floor vote for Speaker.”

New rules governing the 117th Congress happen after the vote for speaker.

House Democrats have been taking advantage of this proxy-voting rule in significant numbers. On December 18, nearly 90 Democrats voted by proxy.

Lillis and Wong point out that 2 years ago, Pelosi lost the votes of 15 House Democrats, enough to deny her the speakership this time around, and this time there will be defections:

… at least three moderate members of the caucus are already on record saying they don’t intend to vote for Pelosi on Jan. 3: Reps. Conor Lamb (Pa.), Jared Golden (Maine) and Elissa Slotkin (Mich.). 

But the peril of Republicans capturing the Speakership would be based on COVID preventing enough Democrats from showing up to vote in person:

A failure of Pelosi to secure support from half the voting members would, at the very least, throw the process into chaos. In the Democrats’ nightmare scenario, the math could tilt so far in the Republicans’ favor that it yields a GOP Speaker.

“Let’s say, just theoretically, we had six or eight people out with Covid and the Republicans have none. They probably could elect [Kevin] McCarthy,” said Rep. John Yarmuth (D-Ky.), referring to the House GOP leader.   

Lawmakers were reminded of their vulnerability this week, when five more members of the House tested positive for COVID-19, bringing the total number of infected lawmakers to at least 35 since the pandemic hit the U.S. roughly a year ago.

With that in mind, Pelosi’s supporters say it’s an outbreak over the holidays — not Democratic detractors — that poses the single greatest threat to Pelosi’s otherwise-expected Speakership victory next month. 

“We’re in a health care crisis, right? No one can get sick. That’s the X-factor here,” said one House Democrat, a Pelosi ally, who spoke anonymously to discuss a sensitive topic. “We need everyone to be healthy. … That’s the big fear.”

Democrats are the party of COVID panic, and that may influence attendance:

… several Democrats have ongoing health concerns unrelated to the coronavirus that have kept them from the Capitol for much of the year. A handful of COVID-19 cases on top of that, some fear, could sink Pelosi’s prospects.  

“COVID is a wild card,” said Rep. Hank Johnson (D-Ga.). “If we have sick members who cannot come back, and we only have a four-vote majority, it throws our entire advent of the 117th Congress in peril — a smooth advent.”

Johnson warned that a chaotic Speaker vote on Jan. 3 would highlight internal party divisions at exactly the wrong time — just two days before a pair of special Senate elections in his home state, which will decide who controls the upper chamber for the next two years. 

Add in the anger simmering on the hard left over Biden not filling his potential cabinet with lefties and the existing tensions between Pelosi and The Squad, and the possibility of Pelosi failing to get a majority increase. Margolis explains:

Rep. John Yarmuth (D-Ky.) believes it’s a real possibility that Republicans could outnumber Democrats for the vote, and the top Republican in the House, Kevin McCarthy, could be elected speaker.

“Let’s say, just theoretically, we had six or eight people out with COVID and the Republicans have none. They probably could elect McCarthy,” Yarmuth told The Hill.

A House Democrat and Pelosi ally who spoke anonymously with The Hill doesn’t deny that a COVID outbreak could sink Pelosi’s chances.

“We’re in a health care crisis, right? No one can get sick. That’s the X-factor here. We need everyone to be healthy… That’s the big fear.”

Another anonymous House Democrat believes Pelosi losing reelection due to absent Democrats is a real possibility. “Obviously, the concern is that with 435 people going all over the country, it’s hard to imagine that not one of us will have the virus on January 3.”

This morning on Fox and Friends, Rep. Elise Sefanik, a very level-headed Republican House member, was taking seriously the possibility that Dems could lose the speakership.

Early January has a lot of potential surprises ahead.

Tyler Durden
Mon, 12/28/2020 – 14:00

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