No Recusal When Judge’s Ex-Clerk, Who Clerked While Case Was Pending, Now Works for a Law Firm in the Case

From a decision on April 21 by Judge James L. Robart (W.D. Wash) in Straw v. Avvo, Inc.:

Mr. Straw assert[s] claims against Defendant Avvo, Inc. … for defamation; tortious interference with prospective contractual relations; intentional infliction of emotional distress; and violations of Title II of the Americans with Disabilities Act. These claims arose from statements that Avvo published on Mr. Straw’s profile in a directory of lawyers on the Avvo.com website….

[T]he court granted Avvo’s motion to dismiss Mr. Straw’s amended complaint and granted Mr. Straw leave to amend. Straw filed his second amended complaint[, but] … the court granted Avvo’s motion to dismiss Mr. Straw’s second amended complaint—this time with prejudice and without leave to amend—because Mr. Straw did not address the deficiencies identified in the court’s prior order. Mr. Straw appealed the dismissal to the Ninth Circuit Court of Appeals. His appeal is still pending….

Mr. Straw … argues that recusal is necessary because Avvo’s law firm, Davis Wright Tremaine LLP (“DWT”), employs an attorney who formerly served as one of the undersigned’s law clerks while Mr. Straw’s case was pending in this court. He contends that “the existence of [the law clerk] on the roster of attorneys at DWT … favors the trial judge’s clerk, his firm, and that firm’s clients.” As a result, according to Mr. Straw, the undersigned violates his duty to be fair and impartial by continuing to preside over this case.

Mr. Straw asserts that because “Avvo has been wrong so severely in injuring [him] and with its false statements to courts and poor ethical judgment, taking data not allowed to be republished and publishing it to injure [him] over [his] objections, [he] want[s] a trial judge who has NO CONNECTION whatsoever to Avvo, its parent companies, or its lawyers.” If there is no such judge in this district, he asks that the Chief Judge of the Ninth Circuit “find someone who is unconnected and disinterested.” …

The undersigned declines to recuse … from this case. The fact that a former law clerk now works for a law firm that represents a party in a matter before the court does not, without more, provide a basis for recusal. See Omni Innovations LLC v. Smartbargains.com LP, No. C06-1129JCC, 2009 WL 3248084, at (W.D. Wash. Oct. 9, 2009) (“A rule barring former law clerks and externs, much less their entire law firms, from appearing in a particular court would be unreasonable and unjustified.”).

Moreover, the attorney to whom Mr. Straw refers in his motion did not work on Mr. Straw’s case while he served as a law clerk and, according to DWT, has not worked on Mr. Straw’s case since joining that firm. See Hussain v. Nevada Sys. of Higher Educ., 458 F. App’x 659, 662 (9th Cir. 2011) (affirming denial of motion to disqualify judge where defense counsel’s firm employed former law clerk and where former clerk did not work on case); see also Wash. R. Prof’l Conduct 1.12(a) (providing that a former judicial law clerk may not represent a party in a case in which the former clerk participated personally and substantially while employed as a clerk). Because the undersigned harbors no bias against Mr. Straw or in favor of Avvo or its attorneys, he declines to recuse himself ….

Under Western District of Washington local rules, the recusal question went to Chief Judge Ricardo S. Martinez, who on Tuesday likewise declined to require recusal:

After filing his appeal, Plaintiff sought to have Judge Robart voluntarily recuse himself from Plaintiff’s case in the event any further district court proceedings occur. Plaintiff bases his request upon his discovery that one of the more than 500 lawyers employed by Davis Wright Tremaine LLP (“DWT”), local counsel for Defendant, formerly clerked for Judge Robart. Plaintiff alleges that “[t]his was more than a little reason for the trial judge to favor [Defendant].” Due to Plaintiff’s prior experience in an unrelated Indiana action, he indicates that he has “a zero tolerance for such connections, such favoritism due to clerkships,” and that “[t]he existence of [a former clerk] on the roster of attorneys at DWT is enough” to make a judge impartial.

A “judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” This includes circumstances where the judge has “a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.” Recusal is appropriate if “a reasonable person with knowledge of all the facts would conclude that the judge’s impartiality might reasonably be questioned.” This is an objective inquiry concerned with whether there is the appearance of bias, not whether there is bias in fact.

Plaintiff has not set forth a basis upon which Judge Robart’s impartiality may reasonably be questioned. Plaintiff does not allege that Judge Robart’s former clerk has worked on this matter on behalf of Avvo. Plaintiff does not allege that Judge Robart’s former clerk has any information related to the case that is not in the public record. Plaintiff does not allege that any communication related to his case has occurred between Judge Robart and his former clerk.

Rather, Plaintiff speculates, without a factual basis, that Judge Robart will favor the clients of a large firm that now employs a single attorney who previously clerked for Judge Robart. Such speculation does not establish an objective basis to conclude that Judge Robart’s impartiality can reasonably be questioned.

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When Murray Rothbard Predicted The Menthol Ban

When Murray Rothbard Predicted The Menthol Ban

Murray Rothbard wrote the following article in August 1994…

Quick: Which is America’s Most Persecuted Minority? No, you’re wrong. (And it’s not Big Business either: one of Ayn Rand’s more ludicrous pronouncements.)

All right, consider this: Which group has been increasingly illegalized, shamed and denigrated first by the Establishment, and then, following its lead, by society at large? Which group, far from coming out of the “closet,” has been literally forced back into the closet after centuries of walking proudly in the public square? And which group has tragically internalized the value-system of its oppressors, so that they are deeply ashamed and guilty about practicing their rites and customs? Which group is so brow-beaten that it never thinks of defending itself, any attempt at which is publicly condemned and ridiculed? Which group is considered such sinners that the use of doctored statistics against them is considered legitimate means in a worthy cause?

I refer, of course, to that once proud race, tobacco-smokers, a group once revered and envied, but now there are none so poor as to do them reverence.

So low has this group sunk in the public esteem that, in rushing to their defense, I am obliged to point out that I myself am not and never have been a smoker. Can you imagine having to put in such a disclaimer against special pleading in behalf of the rights of blacks, Jews, or gays against oppression?

The crusade against smoking is only the currently most virulent example of one of the most malignant forces in American life: left neo-Puritanism. Puritanism was famously defined by my favorite writer, H.L. Mencken, as “the haunting fear that someone, somewhere, may be happy.” The major problem with the Puritans is not so much that they were a dour lot, but that they were believers in the dangerous Christian heresy of “post-millennialism” that is, that it is man’s responsibility to establish a thousand-year (give or take a few centuries) Kingdom of God on Earth as a precondition of the Second Advent of Jesus Christ. Since the Kingdom is by definition a perfect society free of sin, this means that it is the theological duty of believers to establish a sin-free society. But establishing a sin-free society, of course, means taking stern measures to get rid of sinners, which is where the rub comes in.

Now I recognize that in being obliged to depict the crusaders as neo-Puritans, I am in a deep sense not doing justice to the original Puritans. The original seventeenth-century New England Puritans were not so much crusaders as people who wanted to establish their own sin-free Kingdom in their own new settlements, their own “city on a hill.” The original Puritans, too, were Calvinists, who believed in Christianity and a Christian commonwealth as a strict code of Biblical and God-determined law. But over the years, the original Puritanism was replaced, especially by a wave of pietist revivalism in the late 1820s, by a far more crusading and hence menacing version of Protestant Christianity: what is technically known as “post-millennial evangelical pietism” (PMEP). This PMEP took particular root among the ethno-cultural descendants of the old Puritans, people who became known as “Yankees,” and who had migrated from New England to populate such areas as upstate New York, northern and eastern Ohio, northern Indiana, and northern Illinois. (No, “Yankees,” as in “damn Yankees,” did not mean simply “Northerners.”)

This new, and malignant, form of PMEP, of neo-Puritanism, which literally dominated all the mainstream Protestant churches in the North for literally one hundred years, had the following traits: (1) Creed, or liturgy, is formalistic and unimportant. So long as you are a Protestant, it doesn’t matter what church you belong to. Churches don’t matter; the only thing that matters is the individual’s salvation. (2) To achieve salvation, the individual must believe and must be free from sin. (3) “Sin,” however, is very broadly defined as virtually any practice that is enjoyable, in particular, anything which might “cloud your mind” so that you might not achieve salvation: in particular, liquor (Demon Rum); any activity on the Sabbath except praying, reading the Bible, and going to church (and not the Roman Catholic Church, the instrument of the Antichrist in the Vatican); (4) Since each individual is weak and subject to temptation, his salvation must be aided by the government, whose theological duty it is to stamp out such occasions for sin as liquor, activity of any secular sort on the Sabbath, and the Catholic Church. As one historian aptly summed up the PMEP attitude toward the State: “Government is God’s major instrument of salvation.” After all, how are liquor or Catholics to be stamped out by persuasion alone? (5) (the crucial icing on the cake): You will not be saved unless you try your darndest to maximize everyone else’s salvation (i.e., get the government to stamp out sin).

Armed with this five-point world-outlook, the neo-Puritan PMEP hurled himself (and herself, and how!) into a devilishly energetic, hopped-up, unrelenting crusade to stamp out these evils, and to set up paternalistic Big Government on the local, state, and national levels to crush sin and to usher in a perfect sin-less Kingdom. In politics, this meant a full century of crusading against liquor, and to keep the Sabbath Holy. (Do you know that in libertarian, anti-neo-Puritan Jacksonian America, the Post Office used to deliver the mail on Sundays?) But since it would be clearly unconstitutional to outlaw the Catholic Church, the PMEP substitute was to try to force all children into a network of public schools, the object of which was to inculcate obedience to the State and, in the popular slogan of the day, to “Christianize the Catholic” kids, since Catholic adults were clearly doomed.

It took archetypical neo-Puritan Woodrow Wilson not only to bring Prohibition to America, and thereby fulfill the PMEP’s most cherished dreams, but also to take PMEP crusading on to a world scale. For after the Kingdom was established in America, the next holy step was to bring about a worldwide Kingdom. (The Prohibitionist crusaders, however, soon found their dreams of a liquor-free Europe dashed beyond repair.)

The ethno-religious group that felt the most severe oppression from the fanatical harridans of the PMEP (for yes, the most fanatic crusaders were Yankee women, especially spinsters) were the German-American Catholics and High-Church Lutherans. Both of these groups imported into America the charming and admirable custom of going to church on Sundays with their family in their best finery, and then repairing to a beer garden in the afternoon, where they could drink beer and listen to their beloved oom-pah-pah bands. You can imagine the reaction when hordes of PMEP harridans descended upon them crying “Sin! Evil! Smash!” for committing what to the Germans was harmless, but what to the PMEPs was the grave double sin of drinking beer, and on Sundays! And, furthermore, both the Catholics and the German Lutherans wanted to bring up their kids in their own parochial schools, and not in the secularist (or rather, PMEP) public school system!

The high-water mark of PMEP crusading was, of course, the outlawing of all liquor (and by constitutional amendment, no less!). The result used to be common knowledge in America; absolute disaster: tyranny, corruption, black markets and more alcoholism as people went underground to get more intense “fixes” such as hard liquor rather than beer before the cops could close in. And, of course, organized crime, which was almost non-existent before Prohibition. But now, only groups willing to be criminals were available to supply a much desired and demanded product.

This grim lesson used to be known to all Americans, but it has been lost in the enthusiasm for recent neo-Puritan crusades; against drugs, and now against smoking. What is little realized is that the current reason for the crusade was also present during the old PMEP war against liquor. As the decades wore on, the neo-Puritans used both theological and medicinal arguments; liquor will not only send you to Hell, but would also ruin your temporal body, your liver, your body-as-a-temple. Liquor would cause you to beat your wives, have more accidents, and, a little later, injure yourself and others on the road. Increasingly, over the years, the PMEPs married theology and Science in their crusade.

So what happened to the aggressively Christian features of neo-Puritanism, to the emphasis on salvation and on the Kingdom? Interestingly, over the decades, the Christian aspect gradually disappeared. After all, if as a Christian activist, your major focus is not on creed or liturgy but on using the government to shape everyone up and stamp out sin, eventually Christ fades out of the picture and government remains. The picture of the Kingdom of God on Earth becomes secularized or atheized, and, in the Marxist version, the secular sin-free Kingdom is brought about by the terrible swift sword of the “saints” of the Communist Party. We have arrived at the grisly land of Left Puritanism, of a Left Kingdom which proposes to bring about a perfect world free of tobacco, inequality, greed, and hate-thoughts. We have arrived, in short, in the land of The Enemy.

And so, smokers! Are you mice or are you men? Smokers, rise up, be proud, throw off the guilt imposed on you by your oppressors! Stand tall, and smoke! Defend your rights! Do you really think that someone can get instant lung cancer by imbibing a bit of smoke from someone sitting twenty feet away in an outdoor arena? How do you explain the fact that millions of people have smoked all their lives without ill effect?

And remember, if today they come for the smoker, tomorrow they will come for you. If today they grab your cigarette, tomorrow they will seize your junk food, your carbohydrates, your yummy but “empty” calories. And don’t think that your liquor is safe either; neo-Prohibitionism has been long on the march, what with “sin taxes” (revealing term, isn’t it?), outlawing of advertising, higher drinking ages, and the neo-Puritan harpies of MADD. Are you ready for the Left Nutritional Kingdom, with everyone forced to confine his food to yogurt and tofu and bean sprouts? Are you ready to be confined in a cage, to make sure that your diet is perfect, and that you get the prescribed Compulsory Exercise? All to be governed by a Hillary Clinton National Health Board?

Smokers, if you have the guts to form a Smokers Defense League, I will be happy to join a Non-Smokers Auxiliary! How about smokers as one important mass base for a right-wing populist counterrevolution?

This article originally appeared at the Ludwig von Mises Institute and The Libertarian Institute.

Tyler Durden
Fri, 04/30/2021 – 19:40

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Toyota Is Building Its Own Autonomous City Next To Mount Fuji

Toyota Is Building Its Own Autonomous City Next To Mount Fuji

Many auto executives have said the “missing link” for autonomous success has been cities being wired to funnel data to cars for them to be able to meaningfully drive themselves. So Toyota, the world’s largest automaker, is now setting its sights on building an all-autonomous city. 

Toyota President Akio Toyoda kicked off the idea by gathering with Shinto priests at the base of Mount Fuji and praying for success. At an area where the company recently shuttered a factory, the automaker’s focus has turned to the idea of a 175-acre community to test future technologies such as autonomous vehicles, according to Bloomberg.

Toyoda said: “It’s a new chapter in our story and in our industry.”

Toyota is calling it the “Woven City” and it’ll be located about a 2 hour drive from Tokyo. The city will hand pick its residents and will test not only autonomous vehicles, but autonomous deliveries and mobile shops. Construction is expected to be completed in 2024.

Hiroki Kuriyama, senior vice president of Nippon Telegraph and Telephone Corp., has said that cities feeding cars information will be the “the next big leap forward” for autonomous. His company is partnering with Toyota to develop the technology needed for the city. 

Kuriyama notes that sensors and cameras built into infrastructure – and possibly even data from mobile phones – will make it easier to gather data that can then be “processed via optical networks” before being fed to cars, allowing them to navigate safely. 

Toyota announced this week is was buying Lyft’s autonomous self-driving operations for $550 million. As a result of that deal, Toyota will take on 300 new employees and will ascertain tons of data that Lyft has already collected. 

James Kuffner, Toyota’s chief digital officer and head of Woven Planet said the combination “can create a scalable solution that brings mobility beyond what we’re seeing today.” He continued: “Woven City will allow us to try out different city infrastructure. If cars and cities can communicate with each other in a smart way, I think we can build safer systems.”

The city will also feature smart homes that take on their own trash and restock their own refrigerators. The city’s ecosystem will be powered by hydrogen. 

Nakanishi Research Institute head Takaki Nakanishi said: “Mobility, living and cities are going to become connected, and control of that standardized software, that’s what everyone wants.”

Kuriyama is confident the technology being used in the Woven City will be available within 5 to 10 years. “But what’s important is whether residents living in other cities will welcome those technologies,” he said. 

Alexander Soley, an independent consultant focusing on autonomous vehicles, said: “When it comes to new technologies, you can’t just release them and expect them to get picked up, they need to sit with people for a good period of time.”

“Elderly families are a group targeted to live in the city. How will they feel about stepping foot in a car without a driver? That’s what Toyota’s trying to figure out,” he continued.

The town is going to house about 360 visiting scientists, Toyota employees, families and retirees. That number will eventually push into the thousands. The estimate costs is “upwards of a billion dollars” to build the city. 

Tyler Durden
Fri, 04/30/2021 – 19:20

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Oklahoma House Votes To Ban Teaching Of Critical Race Theory In Public Schools

Oklahoma House Votes To Ban Teaching Of Critical Race Theory In Public Schools

Authored by Isabel van Brugen via The Epoch Times,

The Oklahoma House on Thursday voted to ban public schools and universities from teaching critical race theory in civics and history classes. After hours of discussion and debate, the GOP-controlled House voted 70-19 in favor of the bill, HB1775, which now heads to Gov. Kevin Stitt’s desk to be signed into law.

It would prevent a number of topics, including that “one race or sex is inherently superior to another,” and that “an individual, by virtue of his or her race or sex, is inherently racist, sexist or oppressive,” from being taught in the state.

The sponsor of the bill, Republican state Rep. Kevin West said in a statement that students are being taught that because they’re a certain race or sex, they’re “inherently superior to others or should feel guilty for something that happened in the past.”

“We’re trying to set boundaries that we as a state say will not be crossed when we’re teaching these kinds of subjects,” West said.

Democrats argued that the bill was a waste of time and addressed a problem that doesn’t exist.

“Instead of focusing on the real issues facing Oklahomans, the majority party continues their attack on anyone in Oklahoma who might not look, think, love, or act like them,” said state House Minority Leader Rep. Emily Virgin, a Democrat from Norman.

Critical race theory has gradually proliferated in recent decades through academia, government structures, school systems, and the corporate world. It redefines human history as a struggle between the “oppressors” (white people) and the “oppressed” (everybody else), similarly to Marxism’s reduction of history to a struggle between the “bourgeois” and the “proletariat.”

It labels institutions that emerged in majority-white societies as racist and “white supremacist.”

Like Marxism, it advocates for the destruction of institutions, such as the Western justice system, free-market economy, and orthodox religions, while demanding that they be replaced with institutions compliant with the critical race theory ideology.

In February, the Chinese American Citizens Alliance of Greater New York condemned critical race theory, describing it as an outgrowth of the European Marxist school of critical theory that interprets American social and political life through the lens of a power struggle between the race of the oppressor and that of the oppressed.

Proponents of critical race theory have argued that the theory is merely “demonstrating how pervasive systemic racism truly is.”

In one of his first executive actions in the White House, President Joe Biden rescinded his predecessor’s ban of critical race theory in federal workplaces. Former President Donald Trump’s September 2020 executive order declared that diversity and inclusion training for federal employees should not promote “un-American” and “divisive concepts.”

Biden instead issued an executive order stating that the federal government must pursue “a comprehensive approach to advancing equity for all.”

News of the Oklahoma vote comes days after Idado Gov. Brad Little signed into law a bill, H 377 (pdf), that would prevent the teaching of critical race theory in the Gem State’s public schools and universities.

Florida Gov. Ron DeSantis last month denounced critical race theory as hateful.

“There’s no room in our classrooms for things like critical race theory,” he said, announcing that the state’s new civic curriculum will explicitly exclude critical race theory.

“Teaching kids to hate their country and to hate each other is not worth one red cent of taxpayer money.”

Elsewhere, Republican lawmakers in Arkansas, Georgia, Iowa, New Hampshire, and West Virginia have said that they aim to ban the teaching of critical race theory in schools, workplaces, and government agencies.

Gov. Stitt’s office didn’t immediately respond to a request for comment by The Epoch Times.

Tyler Durden
Fri, 04/30/2021 – 19:00

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Chlorine Prices Explode Just In Time For Peak Pool Season

Chlorine Prices Explode Just In Time For Peak Pool Season

Here’s another example of the butterfly effect.

By now everyone knows that a March fire at a plant owned by Japanese chipmaker Renesas was the straw that broke the semiconductor camel’s back, and what were already stretched chip supply chains collapsed, forcing countless companies – from carmarkers to defense contractors – to put production on halt indefinitely until chip inventories had restocked.

But did you know that a fire at a factor last summer could make operating a swimming pool this year prohibitively expensive?

Late last summer, a massive fire broke out at a chemical plant in Lake Charles, LA after Hurricane Laura passed overhead. The chemical blaze was extinguished after three days, and was quickly forgotten… until this week, when Goldman reported that the August 2020 fire had sparked industry-wide chlorine shortages and price inflation.

In recent weeks this story has received more widespread attention as media outlets nationwide have begun covering the severity of the problem, highlighting the possibility of a chlorine shortage during peak pool season in the summer months. Back in March, Goldman surveyed 11 regional pool retailers who at the time unanimously indicated that chlorine prices were on the rise, with most expressing uncertainty with regard to whether or not they will have enough chlorine to sell for the upcoming pool season.

In retrospect, the answer was a resounding no: according to IHS Markit, chlorine prices were up ~37% YoY in March 2021, with prices expected to surge 58% from June to August this year.

To address the fallout, Goldman surveyed 26 pool supply shops across the country, with most respondents located in pool-centric markets like TX, CA, NV, NM, and AZ. Of the 26 pool shops the bank spoke to, 15 expressed uncertainty or doubt when asked about whether they will have enough chlorine for pool season.

As if that wasn’t enough, adding to the pressure created by the chlorine shortage, respondents called out a plastic bucket shortage, driven by COVID-related manufacturing slowdowns, which has made procuring certain volume sizes of chlorine more difficult for retailers, and has led suppliers to deliver chlorine in either bags or in buckets with different colored lids, according to respondents.

One respondent noted that suppliers are slowing production of smaller-sized buckets of chlorine tabs (8-lb, 12-lb), with the focus shifting to larger 50-lb buckets. With customers buying up the smaller-sized buckets of chlorine, this particular store plans to only have 50-lb buckets left to sell within the next week, which are slightly more profitable, according to the respondent.

When asked about whether the cost and availability of chlorine have improved in the last month or so, several respondents noted that while the supply of chlorine has improved somewhat, cost has not.

Commentary from the industry’s main pool equipment supplier Pool Corp. on its recent earnings day underscores the severity of the chlorine shortage.

“I mean overall, I would tell you the price on dichlor and trichlor [chlorine tablets], which is the product that was impacted by the shortage, they’re up about 60%. So if you think about how that’s going to shake out for the balance of the year, it will probably remain at elevated level because I believe that the industry is going to be short for the season,” Pool Corp CFO Mark Joslin told analysts on an April 22 earnings call.

The shortage will likely lead to pool owners to get creative on pool sanitization, Joslin said quoted by Yahoo Finance.

“Now that simply means that people are going to move their method of sanitization to another product, either a granular product or a liquid product. But there’s no shortage of ways to sanitize the pool. It just simply means at a certain point people will shift. We’ve also seen certain parts of the country accelerating the use of salt as a method of sanitization too,” Joslin added.

Tyler Durden
Fri, 04/30/2021 – 18:40

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The State Department Fought To Allow ‘Ghost Gun’ Files and Won. Why Is It Still Trying To Remove Them?


Screen Shot 2021-04-28 at 8.10.07 PM

The State Department earlier this week won a lawsuit to prevent 22 states from forcing the agency to reverse its decision to take certain computer files that can be used to manufacture weapons off a list of prohibited munitions that cannot legally be shared with noncitizens.

Defense Distributed, a company dedicated to the promotion, compilation, and distribution of such files, instantly began hosting them at its DEFCAD site as soon as that decision from the 9th Circuit Court of Appeals cleared the way. The decision clearly stated in its conclusion: “Congress expressly barred judicial review of designations and undesignations of defense articles under the Control Act and of any functions exercised under the Reform Act. Accordingly, the district court erred in reviewing the DOS and Commerce Final Rules, and its injunction is therefore contrary to law. VACATED and REMANDED with instructions to dismiss.”

That is, dismiss the lower court’s decision that the states had the power or authority to force the State Department to reverse its decision to take the gun-making files in question out from under International Traffic in Arms Regulations (ITAR) control, and shift them to Commerce Department control under its Commerce Control List (CCL) system. The Commerce Department is also currently not trying to ban distribution of the files.

Then yesterday, the State Department, the very agency that won its legal fight for its prerogative to have taken those files out from under ITAR authority, told Defense Distributed in a phone call to its lawyers that those files were still ITAR-controlled as far as it was concerned—again, after a legal victory defining its power to have taken them out from under ITAR control. Mostly, the federal government still seems dedicated to making life hard for Defense Distributed and its controversial founder Cody Wilson.

Today, Wilson and his company sought a temporary restraining order to stop the State Department from ordering it to once again take down the files.

The State Department’s argument seems to be based on a legal wrinkle regarding when the 9th Circuit’s order to vacate and remand with instructions to dismiss actually equals the official legal dismissal. Wilson thought the 9th Circuit’s command was clear enough, and that the removal of the controls on those files, which happened years ago, could indeed be treated as a legal done deal. The State Department, despite being the entity that originally ordered the removal, is arguing that it still isn’t—despite its victory in court about insisting that it is.

Here’s how Defense Distributed’s legal team explained it in their motion today for a temporary restraining order (TRO) against the State Department: “Defense Distributed’s publication of the April 2021 Files was and is authorized by regulatory changes that, while once the subject of a district court’s nationwide preliminary injunction, were revived by the Ninth Circuit on April 27. No one disputes this decision’s substance. All agree that it protects Defense Distributed’s publication of the April 2021 Files from ITAR scrutiny. The quibble is about timing. Did it take effect already, as the decision itself says; or does it only matter after mandate issues, as the State Department says? The State Department’s hypertechnical delay idea is plainly wrong, as well as too little to justify its actions. This may be the first case ever in which a federal agency that just won an appeal upholding its regulations turns around on political foes to say that those same regulations are not the law.”

Not that the government doesn’t know this—it’s clearly just out to harass Defense Distributed—but there is no meaningful public policy goal to be met by trying to further restrict the company’s First Amendment rights to publish this information, against the State Department’s own policy decision. As the TRO request spells out: “What legitimate end would punishing Defense Distributed serve? None. The cat is out of the bag. After just two days online, total downloads of the April 2021 Files exceeded ~40,000 and users downloaded every single one of the ~16,000 April 2021 Files at least once. Regardless of whether or not defcad.com continues to publish the April 2021 Files, the independent re-publishers that have already obtained the files will freely re-publish them on new site after new site forever. Whatever goals ITAR controls are supposed to achieve cannot possibly be achieved here.”

Today, U.S. District Judge Robert Pitman denied the TRO request arising from “an April 29, 2021 telephone conversation where the State Department told Defense Distributed that its recent publication of thousands of printable gun files violates the ITAR.” Pitman will in May conduct a hearing on a request for a preliminary injunction against the State Department from Defense Distributed in this action. Until then, Wilson says he will follow whatever advice he ends up receiving from his lawyers regarding the distribution of the files.

The moving of items on and off ITAR is largely a matter of presidential discretion, so one can expect the Biden administration to officially re-ban the spread of those files except for one possible wrinkle: ITAR restrictions are not meant to legally apply to data in the public domain, and with these files having always been spread freely by everyone not actively being harassed by the feds as Defense Distributed has been, and having been dispersed by Defense Distributed itself during what seemed like clear legal windows to do so (such as the aftermath of this week’s 9th Circuit decision), a very good case can be made that they can never be made ITAR-illegal again.

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A Supreme Court Eminent Domain Case Both Sides Deserve to Lose


PennEast

A number of people have asked me what I think about PennEast Pipeline Co. v. New Jersey, an important eminent domain case that was considered by the Supreme Court earlier this week. Normally, when an issue involving eminent domain reaches the Supreme Court, I’m all over it, writing analyses and often filing an amicus brief.  Because current jurisprudence severely under-protects constitutional property rights in a variety of ways, in the vast majority of these cases I end up supporting the property owner against the government.

PennEast is different because the case is only superficially about property rights; the real focus is on the scope of state sovereign immunity from being sued by private parties in federal court. Both sides’ positions rest on highly problematic foundations. So much so that my reaction to the case is similar to Henry Kissinger’s take on the Iran-Iraq War: “It’s a pity they can’t both lose.”

The case arose because the federal government used its powers under the Natural Gas Act to delegate to the PennEast Pipeline Company the power to use eminent domain to condemn property it claims to need to build a pipeline through Pennsylvania and New Jersey. Some of the land PennEast wants to condemn is owned by the state of New Jersey (which opposes the construction of the pipeline).

When PennEast went to court to initiate condemnation proceedings against the state, New Jersey invoked its Eleventh Amendment sovereign immunity against lawsuits by private parties in federal court. PennEast responded by arguing that Eleventh Amendment sovereign immunity does not apply to lawsuits by the federal government, and that in this case PennEast should have the same powers as the feds do, because it is wielding a power delegated by Congress (the power of eminent domain).

While I am not categorically oppose to all uses of eminent domain for private pipeline construction, I do think there must be much tighter constraints on that power than exist today. All too often, state and federal courts allow such condemnations in situations where they are not for genuine “public uses” (as required by the Fifth Amendment Takings Clause and state constitutional equivalents), or not really necessary to build the project in question. In some cases, condemnations proceed even if it isn’t at all clear that the pipeline in question will actually get built. On top of that, state and federal governments routinely undercompensate landowners in eminent domain cases, often denying them even the “fair market value” compensation required by the Supreme Court precedent (which in itself is often inadequate because it fails to take account of the “subjective value” many owners attach to their land, over and above the market price). These problems can be especially severe when the condemnation is at the discretion of a private party, such as PennEast. That can make it even harder to ensure there is a genuine public use, and to guarantee that the land is truly necessary to build it.  I go into many of these issues in greater detail in various previous writings on eminent domain, such as my book The Grasping Hand.

But if the PennEast side of the case is problematic, the same can be said for New Jersey’s side. The state’s position focuses not on constitutional flaws in the use of eminent domain, but on Eleventh Amendment sovereign immunity. In a series of dubious decisions, the Supreme Court has held that the Eleventh Amendment gives state governments immunity against  lawsuits by private parties, with  a few important exceptions such as lawsuits under the Fourteenth Amendment, authorized by Congress.

In reality, the text of the Eleventh Amendment doesn’t give states any such blanket immunity to lawsuits. It says only that “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state” (emphasis added). That should in no way preclude suits against a state by its own citizens. In this case, at least two of the five firms that make up the PennEast consortium are New Jersey-based. Thus, the Eleventh Amendment should not preclude them from suing New Jersey. But Supreme Court precedent, in its distinct lack of wisdom, holds otherwise.

The principle on which New Jersey bases its position here also blocks a wide range of other lawsuits against states, including many that allege serious violations of constitutional and statutory rights. As one of my law school professors once put it, sovereign immunity is a form of “legalized barbarism,” because it is based on the idea that legal authority ultimately flows from the king (or some other ruler), who therefore  “can do no wrong” under the law. This position is radically at odds with the more enlightened political theory underlying the US Constitution, which holds that ultimate authority flows from the people and their natural rights. Government is therefore subordinate to them, and is entirely capable of both “doing wrong” and being held to account for it in court—a principle established by the Supreme Court in it earliest major decision: Chisholm v. Georgia (1793).

The Eleventh Amendment was enacted as a reaction to Chisholm. But, significantly, the text only constrains lawsuits by citizens of other states and foreign countries. It doesn’t overturn the basic presumptions of the Constitution, beyond that. While space constraints preclude going into detail, I remain unpersuaded by arguments holding that sovereign immunity was somehow embedded in the Constitution even before the Eleventh Amendment, despite the conspicuous lack of any textual reference to it. As Justice James Wilson (who was also a leading framer of the Constitution) put it in his opinion in Chisholm:

To the Constitution of the United States, the term SOVEREIGN, is totally unknown…

In one sense, the term “sovereign” has for its correlative “subject.” In this sense, the term can receive no application, for it has no object in the Constitution of the United states. Under that Constitution, there are citizens, but no subjects. “Citizen of the United states.”  “Citizens of another state.” “Citizens of different states.” “A state or citizen thereof.”  The term, subject,occurs, indeed, once in the instrument; but to mark the contrast strongly, the epithet “foreign”  is prefixed. In this sense, I presume the state of Georgia has no claim upon her own citizens. In this sense, I am certain, she can have no claim upon the citizens of another state.”

As Wilson explains, monarchs and other similar rulers might have a right of sovereign immunity against their “subjects.” But not so a republican government against its citizens.

In sum, PennEast pits broad federal authority to delegate the power of eminent domain to private firms against state sovereign immunity under the Eleventh Amendment. The lower court ruling in this case sided with the latter. But in truth, both are awful, both are antithetical to the Constitution, rightly understood, and both deserve to lose.

Sadly, that is unlikely to happen. In theory, I can imagine a ruling where the Supreme Court rejects New Jersey’s sovereign immunity defense, but also rules that the National Gas Act goes beyond the proper constitutional scope of federal eminent domain power. But that is highly unlikely, especially since the latter issue isn’t really before the Court.

There is one small exception to the general principle that both sides’ positions in this case are awful. As the Institute for Justice outlines in its amicus brief, the Supreme Court should reject the federal government’s argument (which goes beyond that of PennEast) to the effect that federal courts lack jurisdiction to consider “as applied” challenges to the use of eminent domain under the Natural Gas Act. To their credit, both PennEast and New Jersey actually agree the courts do have jurisdiction over such cases, as did the Third Circuit. The Supreme Court, hopefully, will do the same. That point aside, I wish a pox on the houses of both sides in this case.

 

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COVID-19 Means Good Times For The Pentagon

COVID-19 Means Good Times For The Pentagon

Authored by Mandy Smithberger via TomDispatch.com,

In response to the Covid-19 pandemic, Washington has initiated its largest spending binge in history. In the process, you might assume that the unparalleled spread of the disease would have led to a little rethinking when it came to all the trillions of dollars Congress has given the Pentagon in these years that have in no way made us safer from, or prepared us better to respond to, this predictable threat to American national security. As it happens, though, even if the rest of us remain in danger from the coronavirus, Congress has done a remarkably good job of vaccinating the Department of Defense and the weapons makers that rely on it financially.

There is, of course, a striking history here. Washington’s reflexive prioritizing of the interests of defense contractors has meant paying remarkably little attention to, and significantly underfunding, public health. Now, Americans are paying the price. With these health and economic crises playing out before our eyes and the government’s response to it so visibly incompetent and inadequate, you would expect Congress to begin reconsidering its strategic approach to making Americans safer. No such luck, however. Washington continues to operate just as it always has, filling the coffers of the Pentagon as though “national security” were nothing but a matter of war and more war.

Month by month, the cost of wasting so much money on weaponry and other military expenses grows higher, as defense contractor salaries continue to be fattened at taxpayer expense, while public health resources are robbed of financial support. Meanwhile, in Congress, both parties generally continue to defend excessive Pentagon budgets in the midst of a Covid-19-caused economic disaster of the first order. Such a business-as-usual approach means that the giant weapons makers will continue to take funds from agencies far better prepared to take the lead in addressing this crisis.

There are a number of ways the Pentagon’s budget could be reduced to keep Americans safer and better protected against future pandemics. As the Center for International Policy’s Sustainable Defense Task Force has pointed out, the biggest challenges we now confront, globally speaking — including such pandemics — are not, in fact, military in nature. In truth, hundreds of billions of dollars could be cut with remarkable ease from U.S. military spending and Americans would be far safer.

Recently, some members of Congress have started to focus on this very point. Representative Ro Khanna (D-CA), for instance, proposed diverting money from unnecessary intercontinental ballistic missile “modernization” into coronavirus and vaccine research. Senator Bernie Sanders (I-VT) has gone further, suggesting a 10% reduction in the Pentagon’s budget, while Representative Barbara Lee (D-CA), the only member of Congress to vote against the post-9/11 war resolution that led to the invasion of Afghanistan, has gone further yet, calling for the cutting of $350 billion from that budget.

But count on one thing: they’ll meet a lot of resistance. There’s no way, in fact, to overstate just how powerfully the congressional committees overseeing such spending are indebted to and under the influence of the defense contractors that profit off the Pentagon budget. As Politico reported years ago (and little’s changed), members of the House Armed Services committee are the top recipients of defense industry campaign contributions. Even the chair of the House Foreign Affairs committee, which should be advocating for the strengthening of American diplomacy, has drawn criticism for the significant backing he receives from the defense industry.

Focusing on Weaponry That Can’t Fight a Virus

Defense contractors have consistently seen such investments pay off. As my colleague at the Project on Government Oversight, Dan Grazier, has pointed out, despite repeated warnings from independent watchdogs and medical professionals, even military healthcare has been significantly underfunded, while both the Pentagon and Congress continue to prioritize buying weapons over taking care of our men and women in uniform. Congress’s watchdog, the Government Accountability Office, warned in February 2018 that the health system of the Department of Defense (DOD) lacked the capacity to handle routine needs, no less the emergencies of wartime. As Pentagon spending has continued to escalate over the past 20 years, military healthcare funding has stayed largely flat.

Under the circumstances, I doubt you’ll be surprised to learn that Congress has also written additional arms contractor giveaways into its coronavirus relief bills. Though its CARES Act authorized trillions of dollars in spending, ProPublica unearthed a provision in it (nearly identical to one proposed by industry groups) that allows defense contractors to bill the government for a range of costs meant to keep them in a “ready” state. The head of acquisition for the Pentagon, Ellen Lord, estimated (modestly indeed) that the provision would cost taxpayers in the low “double-digit billions.” Additional language offered in the House’s next relief bill, likely to survive whatever the Senate finally passes, would increase such profiteering further by including fees that such companies claim are related to the present crisis, including for executive compensation, marketing, and sales.

In such a context, it was hardly surprising that, during a recent hearing at the House Armed Services Committee on how the DOD was responding to the Covid-19 crisis, the focus remained largely on ways that the global epidemic might diminish arms industry profits. Representatives Joe Courtney (D-CT) and Mac Thornberry (R-TX) both argued that the Pentagon would need yet more money to cover the costs of any number of charges that defense contractors claim are related to the pandemic.

Most ludicrous is the idea that an agency slated to receive significantly more than $700 billion in 2020 can’t afford to lose a few billion dollars to the actual health of Americans. Of course, the Pentagon remained strategically mum earlier this year when, in an arguably unconstitutional manner, the White House diverted $7.2 billion from its funds to the building of the president’s “great, great wall” on our southern border. In fact, General Mark Milley, chairman of the Joint Chiefs of Staff, even admitted that it wasn’t exactly a major blow for the government agency with the largest discretionary budget. “It was not a significant, immediate, strategic, negative impact to the overall defense of the United States of America,” he assured Congress. “It’s half of one percent of the overall budget, so I can’t in good conscience say that it’s significant, immediate, or the sky is falling.”

A Chicken Little Congress, however, doesn’t consider taking more funds from the Pentagon budget to shore up the Centers for Disease Control and Prevention (CDC) anywhere near as crucial as, for example, approving the Pacific Deterrence Initiative, a slush fund that will be part of this country’s new Cold War with China — starting with a modest $1.4 billion in seed money, while the homework is done to justify another $5.5 billion next year. Similarly, even in such an economically disastrous moment, who could resist buying yet more of Lockheed Martin’s eternally troubled and staggeringly expensive F-35 Joint Strike Fighters than the Pentagon requested? Comparable support exists, even among senators unwilling to fork over any more dollars to desperate out-of-work Americans, for the president’s Space Force, that new service now in the process of creating a separate set of rules for itself that should allow it free rein over future spending. That, of course, reveals its real mission: making it easier for contractors to profit off the taxpayer.

If anything, the main congressional criticism of the Pentagon is that it’s been too slow to push money out the door. And yet, in an institution that has never been successfully audited, there are red flags galore, as a recent Government Accountability Office assessment of major weapons programs suggests. The costs of such new weapons systems have cumulatively soared by 54%, or $628 billion, from earlier GAO assessments. That, by the way, is almost 90 times this year’s budget request for the CDC.

And that’s just the waste. The same report shows that any number of weapons systems continue to fail in other ways entirely. Of the 42 major programs examined, 35 had inadequate security to prevent cyber attacks. General Dynamics Electric Boat’s $126 billion nuclear submarine program has been plagued by faulty welding for two years. The new Ford class aircraft carrier, built by Huntington Ingalls for $13.2 billion, includes a General Atomics launch system that continues to fail to launch aircraft as designed. In addition, as Bloomberg first reported, the ship’s toilets clog frequently and can only be cleaned with specialized acids that cost about $400,000 a flush. As my colleague Mark Thompson has pointed out, “escalating costs, blown schedules, and weapons unable to perform as advertised” are the norm, not the exception for the Pentagon.

That track record is troubling indeed, given that Congress is now turning to the Pentagon to help lead the way when it comes to this country’s pandemic response. Its record in America’s “forever wars” over the last nearly two decades should make anyone wonder about the very idea of positioning it as a lead agency in solving domestic public health crises or promoting this country’s economic recovery.

Broken Oversight

As the first wave of the pandemic continues and case numbers spike in a range of states, oversight structures designed to prevent waste, fraud, and abuse when it comes to defense spending are quite literally crumbling before our eyes. Combine weakened oversight, skewed priorities, and a Pentagon budget still rising and you’re potentially creating the perfect storm for squandering the resources needed to respond to our current crisis.

The erosion of oversight of the Pentagon budget has been a slow-building disaster, administration by administration, particularly with the continual weakening of the authority of inspectors general. As independent federal watchdogs, IGs are supposed to oversee the executive branch and report their findings both to it and to Congress.

In the Obama administration, however, their power was undermined when the Office of Legal Counsel, the legal expert for the White House, began to argue that accessing the “all” in “all records, reports, audits, reviews, documents, papers, recommendations, or other material” didn’t actually mean “all” when it came to inspectors general. Under President Donald Trump, the same office typically claimed that then-Intelligence Community Inspector General Michael Atkinson did not have the authority to forward to the House and Senate Intelligence committees a concern that the president had improperly withheld aid to Ukraine.

In fact, in the Trump years, such watchdogs have been purged in significant numbers. Shortly after Department of Defense principal Deputy Inspector General Glenn Fine was named to lead the Pandemic Response Accountability Committee, for instance, the president removed him. Not only did that weaken the authority of the body overseeing trillions of dollars in spending across the federal government, but it jeopardized the independence and clout of the Pentagon’s watchdog when it came to billions already being spent by the DOD.

In a similar fashion, the Trump administration has worked hard to stymie Congress’s ability to exercise its constitutional role in conducting oversight. A few months after the president entered the Oval Office, the White House temporarily ordered executive branch agencies to ignore oversight requests from congressional Democrats. Since then, the stonewalling of Congress has only increased. Mark Meadows, the president’s latest chief of staff, has, for example, reportedly implemented a new rule ensuring that executive branch witnesses cannot appear before Congress without his permission. In recent weeks, it was invoked to stop Secretary of State Mike Pompeo from appearing to justify his latest budget request or to answer questions about why his department’s inspector general was removed. (He was, among other things, reportedly investigating Pompeo himself.) Meanwhile, Secretary of Defense Mark Esper and Chairman of the Joint Chiefs Mark Milley have both resisted calls from Congress to answer questions about the use of military force against peaceful protesters.

Congress has a number of tools at its disposal to demand answers from the Pentagon. Unfortunately, the committees overseeing that agency have seldom demonstrated the will to exercise them. Last year, however, Congressman Ruben Gallego (D-AZ) added an amendment to a defense bill limiting funds for the secretary of defense’s travel until his department produced a report on disciplinary actions taken after U.S. troops were abushed in Niger in 2018 and four of them died.

That tragic incident was also a reminder that Congress has taken little responsibility for the costs of the endless conflicts the U.S. military has engaged in across significant parts of the planet. Quite the opposite, it continues to leave untouched the 2001 authorization for use of military force, or AUMF, that has been abused by three administrations to justify waging wars ever since. The Congressional Research Service estimates that it has been used in that way at least 41 times in 19 countries. According to Brown University’s Costs of War project, that number should be 80 countries where the U.S. has been engaged in counterterror activities since 2001.

And there are significantly more warning signs in this Covid-19 moment that congressional oversight, long missing in action, is needed more than ever. (Trump’s response, classically enough, was “I’ll be the oversight.”) Typically, among the trillions of dollars Congress put up in responding to the pandemic-induced economic collapse, $10.5 billion was set aside for the Pentagon to take a leading role in addressing the crisis. As the Washington Post reported, among the first places those funds went were golf course staffing, submarine missile tubes, and space launch facilities, which is par for the course for the DOD.

Implementation of the Defense Production Act also betrayed a bizarre sense of priorities in these months. That law, passed in response to the Korean War, was designed to help fill shortfalls in goods in the midst of emergencies. In 2020, that should certainly have meant more masks and respirators. But as Defense One reported, that law was instead used to bail out defense contractors, some of whom weren’t even keeping their employees on staff. General Electric, which had laid off 25% of its workforce, received $20 million to expand its development of “advanced manufacturing techniques,” among things unrelated to the coronavirus. Spirit Aerosystems, which received $80 million to expand its domestic manufacturing, had similarly laid off or furloughed 900 workers.

While Americans are overwhelmed by the pandemic, the Pentagon and its boosters are exploiting the emergency to feather their own nests. Far stronger protections against such behavior are needed and, of course, Congress should take back what rightfully belongs to it under the Constitution, including its ability to stop illegal wars and reclaim its power of the purse. It’s long past time for that body to cancel the blank check it’s given both the Pentagon and the White House. But don’t hold your breath.

In the meantime, as Americans await a future Covid-19 vaccine, the military-industrial complex finds itself well vaccinated against this pandemic moment. Consider it a Pentagon miracle in terrible times.

Tyler Durden
Fri, 04/30/2021 – 18:20

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Daily Briefing: Lessons from Earnings Season

Daily Briefing: Lessons from Earnings Season

Real Vision crypto editor Ash Bennington welcomes managing editor Ed Harrison to make sense of a crazy week in markets in this live edition of the Daily Briefing. Alongside Real Vision’s Jack Farley, they examine how the momentous earnings announcements, particularly in big tech, impact valuations. Ash gives his take on the latest goings-on in the crypto world, and Ed and Jack review what rising yields on European bonds means for the continents recovery as well as the U.S. dollar.

Tyler Durden
Fri, 04/30/2021 – 12:00

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The State Department Fought To Allow ‘Ghost Gun’ Files and Won. Why Is It Still Trying To Remove Them?


Screen Shot 2021-04-28 at 8.10.07 PM

The State Department earlier this week won a lawsuit to prevent 22 states from forcing the agency to reverse its decision to take certain computer files that can be used to manufacture weapons off a list of prohibited munitions that cannot legally be shared with noncitizens.

Defense Distributed, a company dedicated to the promotion, compilation, and distribution of such files, instantly began hosting them at its DEFCAD site as soon as that decision from the 9th Circuit Court of Appeals cleared the way. The decision clearly stated in its conclusion: “Congress expressly barred judicial review of designations and undesignations of defense articles under the Control Act and of any functions exercised under the Reform Act. Accordingly, the district court erred in reviewing the DOS and Commerce Final Rules, and its injunction is therefore contrary to law. VACATED and REMANDED with instructions to dismiss.”

That is, dismiss the lower court’s decision that the states had the power or authority to force the State Department to reverse its decision to take the gun-making files in question out from under International Traffic in Arms Regulations (ITAR) control, and shift them to Commerce Department control under its Commerce Control List (CCL) system. The Commerce Department is also currently not trying to ban distribution of the files.

Then yesterday, the State Department, the very agency that won its legal fight for its prerogative to have taken those files out from under ITAR authority, told Defense Distributed in a phone call to its lawyers that those files were still ITAR-controlled as far as it was concerned—again, after a legal victory defining its power to have taken them out from under ITAR control. Mostly, the federal government still seems dedicated to making life hard for Defense Distributed and its controversial founder Cody Wilson.

Today, Wilson and his company sought a temporary restraining order to stop the State Department from ordering it to once again take down the files.

The State Department’s argument seems to be based on a legal wrinkle regarding when the 9th Circuit’s order to vacate and remand with instructions to dismiss actually equals the official legal dismissal. Wilson thought the 9th Circuit’s command was clear enough, and that the removal of the controls on those files, which happened years ago, could indeed be treated as a legal done deal. The State Department, despite being the entity that originally ordered the removal, is arguing that it still isn’t—despite its victory in court about insisting that it is.

Here’s how Defense Distributed’s legal team explained it in their motion today for a temporary restraining order (TRO) against the State Department: “Defense Distributed’s publication of the April 2021 Files was and is authorized by regulatory changes that, while once the subject of a district court’s nationwide preliminary injunction, were revived by the Ninth Circuit on April 27. No one disputes this decision’s substance. All agree that it protects Defense Distributed’s publication of the April 2021 Files from ITAR scrutiny. The quibble is about timing. Did it take effect already, as the decision itself says; or does it only matter after mandate issues, as the State Department says? The State Department’s hypertechnical delay idea is plainly wrong, as well as too little to justify its actions. This may be the first case ever in which a federal agency that just won an appeal upholding its regulations turns around on political foes to say that those same regulations are not the law.”

Not that the government doesn’t know this—it’s clearly just out to harass Defense Distributed—but there is no meaningful public policy goal to be met by trying to further restrict the company’s First Amendment rights to publish this information, against the State Department’s own policy decision. As the TRO request spells out: “What legitimate end would punishing Defense Distributed serve? None. The cat is out of the bag. After just two days online, total downloads of the April 2021 Files exceeded ~40,000 and users downloaded every single one of the ~16,000 April 2021 Files at least once. Regardless of whether or not defcad.com continues to publish the April 2021 Files, the independent re-publishers that have already obtained the files will freely re-publish them on new site after new site forever. Whatever goals ITAR controls are supposed to achieve cannot possibly be achieved here.”

Today, U.S. District Judge Robert Pitman denied the TRO request arising from “an April 29, 2021 telephone conversation where the State Department told Defense Distributed that its recent publication of thousands of printable gun files violates the ITAR.” Pitman will in May conduct a hearing on a request for a preliminary injunction against the State Department from Defense Distributed in this action. Until then, Wilson says he will follow whatever advice he ends up receiving from his lawyers regarding the distribution of the files.

The moving of items on and off ITAR is largely a matter of presidential discretion, so one can expect the Biden administration to officially re-ban the spread of those files except for one possible wrinkle: ITAR restrictions are not meant to legally apply to data in the public domain, and with these files having always been spread freely by everyone not actively being harassed by the feds as Defense Distributed has been, and having been dispersed by Defense Distributed itself during what seemed like clear legal windows to do so (such as the aftermath of this week’s 9th Circuit decision), a very good case can be made that they can never be made ITAR-illegal again.

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