Yesterday, the Supreme Court heard nearly four hours of argument about vaccine mandates. Throughout the entire session, one question popped up over and over again: Who Decides? Who should decide to impose a vaccine mandate: Congress, the states, the agencies, the courts? Judge Sutton’s new book eloquently addressed this important question. And I suspect several of the Justices and the advocates have been thinking about Judge Sutton’s question, as have I.
During the first argument, Scott Keller, who represented NFIB, was answering a question from Justice Breyer. He concluded his remarks “The question is not what is this country going to do about COVID. It’s who gets to decide that.” Justice Kagan jumped in and said “Well, who does get–” Chief Justice Roberts interrupted her and said, “Maybe, at this point, we can go justice by justice.” Come, on Chief!? At that moment, I knew exactly what Kagan was asking. And when Kagan’s turn came during the lightning round, she jumped right into it.
JUSTICE KAGAN: Mr. Keller, your -your very last comment in your first part of your argument I want to come back to because your very last sentence, you said the question is, who decides? And I think that that’s right. I think that that is the question.
Unsurprisingly, Kagan would answer that question differently than NFIB. She would let the expert agencies, who work for the accountable President, decide.
JUSTICE KAGAN: Respectfully, I –I think it has a different answer than the one that you give, so I’ll just sort of put a different version of it to you, which is, you know, you’re –I’m sure you’re right that there are all kinds of public health and economic tradeoffs that have to be made in a policy like this, all kinds of judgments on the public health side, on the economic side, how those two things ought to be balanced against each other.
So who decides? Should it be the agency full of expert policymakers and completely politically accountable through the President? This is not the kind of policy in which there’s no political accountability. If people like this policy, they’ll go to the polls and vote it that way. If people don’t like it, they’ll vote that way.
This is a publicly –a politically accountable policy. It also has the virtue of expertise. So, on the one hand, the agency with their political leadership can decide. Or, on the other hand, courts can decide. Courts are not politically accountable. Courts have not been elected. Courts have no epidemiological expertise. Why in the world would courts decide this question? …. And why is it that courts would displace that judgment and say it is up to us to decide about vaccination policy in the employment settings of this country?
Presidential administration at its finest.
Justice Breyer also asked a variant (no pun intended) of Kagan’s question:
JUSTICE BREYER: Should it be that we decide, you know, as against what the Secretary has decided, in performing his important function of evaluating these potential disruptions and weighing those disruptions against the health benefits that he sees in that rule? Should we say we think that the –that the disruptions are more, greater than the Secretary thought and we further would weigh them differently against the health benefits of the rural? Is that for courts to decide?
Justice Kavanaugh picked up on the theme of who decides.
JUSTICE KAVANAUGH: I want to follow up on Justice Kagan’s who decides question because I do think that gets to the –the heart of this.
But Kavanaugh approached the question differently. He asked about the major question doctrine, and whether Congress wanted OSHA to decide this question:
JUSTICE KAVANAUGH: You’re relying on the major questions canon in saying that when an agency wants to issue a major rule that resolves a major question, it can’t rely on statutory language that is cryptic, vague, oblique, ambiguous.
(A brief admin-law detour. The word “cryptic” here is important, because it has a different connotation that “vague” or “ambiguous” in the Chevron context. In other words, the major question doctrine would still apply even if a statute is not ambiguous. Kavanaugh repeated the word “cryptic” several other times, so he has telegraphed how he would apply the major question doctrine. Back to who decides.)
Justice Gorsuch also returned to the question of “who decides.” He too framed the issue at whether the “appropriate party” gets to make these regulations. Has Congress given OSHA this power?
JUSTICE GORSUCH: Mr. Flowers, I’d like to return to the question of –of who decides. And I think we’ve all kind of come to the point where we all agree that states have –have a wide police power under our constitutional system that Congress has to regulate consistent with the Commerce Clause and –and make the major decisions while agencies can do the work that Congress has given them to do but not other kinds of work. And the major questions doctrine kind of regulates that interaction between Congress and agencies.
So it’s not that judges are supposed to decide some question of public health. It’s about regulating the rules of the system to ensure that the appropriate party does.
And so the question in my mind really turns a lot on the major questions doctrine in this case. Is this one that has been given to the agencies to decide or one that Congress has to make as a major question under our federal system? And I haven’t heard a lot of discussion about that.
The Solicitor General says that the major questions issue only comes into play when a statute’s ambiguous, and I’d like to give you an opportunity to explain your view.
Ben Flowers, the Ohio Solicitor General, directly addressed the “who decides” question during his opening remarks:
To Justice Kagan’s question about the who decides point, Congress tell –told us who decides at 2112 –28 USC 2112 says that courts can issue stays, and the reason for that is they recognize that this was without notice and comment, and unless the courts could step in to abate illegal actions, nobody would be able to do so. And that’s especially important here, where the –the action they’re, in our view, mandating but at least strongly encouraging, vaccination, cannot be undone.
And Scott Keller addressed the “who decides” question during his rebuttal.
And my second point to close on is about who decides in the public interest. And I would submit that this Court’s precedents answer that. We’re not asking this Court to reverse anything. Industrial union 40 years ago in Justice Stevens’s controlling opinion says that there was an absence of a clear mandate in the OSH Act, so it’s unreasonable to assume that Congress gave OSHA unprecedented power over American industry and the emergency power is also narrowly circumscribed, yet here OSHA has never before done mandated vaccines or widespread testing much less over all industries or on an emergency basis.
Everyone should read Judge Sutton’s important book. My review of Who Decides? should be out later this month.
Yesterday, the Supreme Court heard nearly four hours of argument about vaccine mandates. Throughout the entire session, one question popped up over and over again: Who Decides? Who should decide to impose a vaccine mandate: Congress, the states, the agencies, the courts? Judge Sutton’s new book eloquently addressed this important question. And I suspect several of the Justices and the advocates have been thinking about Judge Sutton’s question, as have I.
During the first argument, Scott Keller, who represented NFIB, was answering a question from Justice Breyer. He concluded his remarks “The question is not what is this country going to do about COVID. It’s who gets to decide that.” Justice Kagan jumped in and said “Well, who does get–” Chief Justice Roberts interrupted her and said, “Maybe, at this point, we can go justice by justice.” Come, on Chief!? At that moment, I knew exactly what Kagan was asking. And when Kagan’s turn came during the lightning round, she jumped right into it.
JUSTICE KAGAN: Mr. Keller, your -your very last comment in your first part of your argument I want to come back to because your very last sentence, you said the question is, who decides? And I think that that’s right. I think that that is the question.
Unsurprisingly, Kagan would answer that question differently than NFIB. She would let the expert agencies, who work for the accountable President, decide.
JUSTICE KAGAN: Respectfully, I –I think it has a different answer than the one that you give, so I’ll just sort of put a different version of it to you, which is, you know, you’re –I’m sure you’re right that there are all kinds of public health and economic tradeoffs that have to be made in a policy like this, all kinds of judgments on the public health side, on the economic side, how those two things ought to be balanced against each other.
So who decides? Should it be the agency full of expert policymakers and completely politically accountable through the President? This is not the kind of policy in which there’s no political accountability. If people like this policy, they’ll go to the polls and vote it that way. If people don’t like it, they’ll vote that way.
This is a publicly –a politically accountable policy. It also has the virtue of expertise. So, on the one hand, the agency with their political leadership can decide. Or, on the other hand, courts can decide. Courts are not politically accountable. Courts have not been elected. Courts have no epidemiological expertise. Why in the world would courts decide this question? …. And why is it that courts would displace that judgment and say it is up to us to decide about vaccination policy in the employment settings of this country?
Presidential administration at its finest.
Justice Breyer also asked a variant (no pun intended) of Kagan’s question:
JUSTICE BREYER: Should it be that we decide, you know, as against what the Secretary has decided, in performing his important function of evaluating these potential disruptions and weighing those disruptions against the health benefits that he sees in that rule? Should we say we think that the –that the disruptions are more, greater than the Secretary thought and we further would weigh them differently against the health benefits of the rural? Is that for courts to decide?
Justice Kavanaugh picked up on the theme of who decides.
JUSTICE KAVANAUGH: I want to follow up on Justice Kagan’s who decides question because I do think that gets to the –the heart of this.
But Kavanaugh approached the question differently. He asked about the major question doctrine, and whether Congress wanted OSHA to decide this question:
JUSTICE KAVANAUGH: You’re relying on the major questions canon in saying that when an agency wants to issue a major rule that resolves a major question, it can’t rely on statutory language that is cryptic, vague, oblique, ambiguous.
(A brief admin-law detour. The word “cryptic” here is important, because it has a different connotation that “vague” or “ambiguous” in the Chevron context. In other words, the major question doctrine would still apply even if a statute is not ambiguous. Kavanaugh repeated the word “cryptic” several other times, so he has telegraphed how he would apply the major question doctrine. Back to who decides.)
Justice Gorsuch also returned to the question of “who decides.” He too framed the issue at whether the “appropriate party” gets to make these regulations. Has Congress given OSHA this power?
JUSTICE GORSUCH: Mr. Flowers, I’d like to return to the question of –of who decides. And I think we’ve all kind of come to the point where we all agree that states have –have a wide police power under our constitutional system that Congress has to regulate consistent with the Commerce Clause and –and make the major decisions while agencies can do the work that Congress has given them to do but not other kinds of work. And the major questions doctrine kind of regulates that interaction between Congress and agencies.
So it’s not that judges are supposed to decide some question of public health. It’s about regulating the rules of the system to ensure that the appropriate party does.
And so the question in my mind really turns a lot on the major questions doctrine in this case. Is this one that has been given to the agencies to decide or one that Congress has to make as a major question under our federal system? And I haven’t heard a lot of discussion about that.
The Solicitor General says that the major questions issue only comes into play when a statute’s ambiguous, and I’d like to give you an opportunity to explain your view.
Ben Flowers, the Ohio Solicitor General, directly addressed the “who decides” question during his opening remarks:
To Justice Kagan’s question about the who decides point, Congress tell –told us who decides at 2112 –28 USC 2112 says that courts can issue stays, and the reason for that is they recognize that this was without notice and comment, and unless the courts could step in to abate illegal actions, nobody would be able to do so. And that’s especially important here, where the –the action they’re, in our view, mandating but at least strongly encouraging, vaccination, cannot be undone.
And Scott Keller addressed the “who decides” question during his rebuttal.
And my second point to close on is about who decides in the public interest. And I would submit that this Court’s precedents answer that. We’re not asking this Court to reverse anything. Industrial union 40 years ago in Justice Stevens’s controlling opinion says that there was an absence of a clear mandate in the OSH Act, so it’s unreasonable to assume that Congress gave OSHA unprecedented power over American industry and the emergency power is also narrowly circumscribed, yet here OSHA has never before done mandated vaccines or widespread testing much less over all industries or on an emergency basis.
Everyone should read Judge Sutton’s important book. My review of Who Decides? should be out later this month.
Yesterday morning I listened to the oral arguments in the case of the Biden administration’s vaccine mandates as enforced by OSHA. It was a demoralizing experience.
I heard some crazy things, such as a claim that “750 million” Americans just got Covid yesterday, and that 100,000 kids with Covid are in the hospital, many on ventilators. The correct number is 3,300 with positive tests, but not necessarily suffering from Covid. I further heard strong claims that the vaccines block disease spread, despite every bit of evidence to the contrary.
It was my first time hearing oral arguments in the Supreme Court. I might have thought that facts on the ground would actually matter to people who are holding the fate of human liberty in their hands. I might have thought that they would be getting their information from somewhere other than their political intuition, mixed with wildly inaccurate claims from bloggers and media pundits.
I was wrong. And that is deeply alarming. Or maybe it is a wake up call to us all. We have learned today that these people are no smarter than our neighbors, no more qualified to address complicated questions than our friends, and arguably far less informed than the Twittersphere about basic issues of Covid and public health.
The backdrop of today’s arguments is that 74% of Americans of all ages have had at least one shot. Meanwhile, case numbers are up 500% in many places, and 721,000 new cases have been logged throughout the country, and that’s obviously a large underestimate because it does not count at-home tests which are selling out in stores around the country.
The extremely obvious point – the most basic observation one can make about this data – is that the vaccinations are not controlling the spread. This has been granted already by the CDC and every other authority.
No matter what people say in retrospect, I seriously doubt that anyone would have predicted a future in which the pandemic highs would be reached following mass vaccination. It’s not only true in the US but also all over the world. However much they help with mitigating severe outcomes of the disease, at least for a time, they have not been successful in stopping the spread of the virus. They will not end the pandemic.
And yet, so far as I can understand this, that is the whole point of the vaccine mandate. It is to protect workers from getting Covid. There is no zero evidence that this is possible with mass mandates in the workforce. People can get and are getting Covid anywhere and everywhere, among which surely means the workplace too. The vaccine is not stopping that. What will bring this pandemic to an end will not be the vaccines but the adaptation of human immune systems, exposed and then developing resilience.
Apparently there was not one mention of natural immunity during the oral arguments, which is truly astounding. From what I could hear, there was a strangely truncated environment in which no one was willing to say certain obvious truths, almost as if a pre-set orthodoxy had been defined at the outset. There were certain givens that simply were not questioned; namely that this is a disease without precedent, that the state can stop it, that vaccines are the best ticket we have, that the unvaccinated have absolutely no good reason to remain that way.
To be sure, the oral arguments are not what decides a case. The briefs filed for the court are much better on the side of opposing the mandates, while the briefs for the mandates are filled with untruths that are easily exploded. In the end, it is very likely that the mandate will be struck down in a 6 to 3 vote. I’m glad for that. We should be relieved.
However, we need to do some serious thinking about what is going on here.
We are talking about a mandate that profoundly affects the health and well-being of millions of people.
The question of whether someone should take the vaccine is bound up with extremely complex empirical questions, and opinions run in every direction, from those who think it is the greatest gift of modern science to those who think the vaccines themselves are not only dangerous but also unleashing ever more variants. These are matters of science and should be subject to debate, with the final choices made by individuals.
What absolutely cannot happen in any free, civilized, and stable country is to have such fundamental questions of liberty and bodily autonomy adjudicated by a panel of lawyers who have limited curiosity in the science, a lack of knowledge of facts on the ground that are available to anyone who cares, and who get their basic facts about a pandemic from TV talk shows and a prevailing media ethos that has no basis in reality.
How did we end up here?
We need the answers to this question. Certain issues should be absolutely off limits to the courts. Those issues pertain to fundamental questions concerning science and its application to human health. Of all things that need to be outside the realm of politics and the courts, it is these. The courts lack the competence. Even if the decision goes the right way, there is no real basis for feeling relieved and secure about our future.
Liberty can win this one and lose the next one. It all depends on the court appointments. This is not how a social order can operate. We need a system in which foundational issues of health, science, and liberty are outside the scope of the court system.
I wish I knew how to get there. We’ve been on a very long trajectory in which government exercises ever more control over our lives, inch by inch, for the better part of a century. We’ve come to the point where this control is a severe threat to our capacity to live free and dignified lives without being subject to the arbitrary whims of “experts” with power.
The courts have been too acquiescent for too long. If we had a really functioning court system and a Constitution that it followed, the forced closures of March 2020 would have been struck down in hours and ruled out as incompatible with freedom itself.
My highest hope is that the majority opinion here, if it goes the right way, will not be narrow and evasive, picking apart the mandate based on technicalities, but sweeping and fundamental. It should say in no uncertain terms that this mandate should never have been issued and that the court should never have to intervene in such matters in the future.
Freedom requires at least the presumption that businesses (and all institutions) can operate without acting as proxies for the federal health police – pushing injections on their workers against their will – and that workers have the right to determine what medicines they will and will not take.
The very existence of this case in the Supreme Court reveals that something is fundamentally broken about our presumptions about the relationship between the individual and the state. It must be fixed. It won’t finally be fixed by a court but rather a dramatic cultural change that embraces certain fundamental propositions about liberty itself. We’ve played too many games and taken too many risks for too long.
Let us hope that this case awakens a culture and a world to a desperate need for dramatic reform. Human rights and public health are too important to be left in the hands of high courts.
The Law 360 website recently published my article on the Supreme Court’s decision in the Texas SB 8 abortion case. The link in the previous sentence is paywalled. But Law 360 has generously allowed me to post a PDF version, which is available here for free.
Here is an excerpt:
Last month, the U.S. Supreme Court issued an extremely important, but frustratingly murky, decision in Whole Woman’s Health v. Jackson, the case addressing S.B. 8, Texas’ controversial new anti-abortion law. The key issue at stake in this case is whether Texas can evade judicial review by limiting enforcement authority exclusively to private parties.
S.B. 8 seemingly bars enforcement by state officials, and instead delegates it to private litigants, who each stand to gain $10,000 or more in damages every time they prevail in a lawsuit against anyone who violates the law’s provisions barring abortions after a fetal heartbeat is detected, usually around six weeks into a pregnancy.
If Texas’ ploy succeeds, it would set a dangerous precedent for insulating attacks on other constitutional rights from judicial review. For this reason, the struggle over S.B. 8 has implications that go far beyond abortion rights. It should trouble even those who believe that the Supreme Court’s 1973 decision in Roe v. Wade and later decisions protecting abortion should be overruled or severely limited, as might happen in Dobbs v. Jackson Woman’s Health Organization, a case currently before the justices.
Unfortunately, the Supreme Court’s decision is vague on the question of whether the S.B. 8 strategy will be successful or not. Only further litigation is likely to clarify the picture. In the meantime, other states have already begun trying to imitate the S.B. 8 strategy.
The Law 360 website recently published my article on the Supreme Court’s decision in the Texas SB 8 abortion case. The link in the previous sentence is paywalled. But Law 360 has generously allowed me to post a PDF version, which is available here for free.
Here is an excerpt:
Last month, the U.S. Supreme Court issued an extremely important, but frustratingly murky, decision in Whole Woman’s Health v. Jackson, the case addressing S.B. 8, Texas’ controversial new anti-abortion law. The key issue at stake in this case is whether Texas can evade judicial review by limiting enforcement authority exclusively to private parties.
S.B. 8 seemingly bars enforcement by state officials, and instead delegates it to private litigants, who each stand to gain $10,000 or more in damages every time they prevail in a lawsuit against anyone who violates the law’s provisions barring abortions after a fetal heartbeat is detected, usually around six weeks into a pregnancy.
If Texas’ ploy succeeds, it would set a dangerous precedent for insulating attacks on other constitutional rights from judicial review. For this reason, the struggle over S.B. 8 has implications that go far beyond abortion rights. It should trouble even those who believe that the Supreme Court’s 1973 decision in Roe v. Wade and later decisions protecting abortion should be overruled or severely limited, as might happen in Dobbs v. Jackson Woman’s Health Organization, a case currently before the justices.
Unfortunately, the Supreme Court’s decision is vague on the question of whether the S.B. 8 strategy will be successful or not. Only further litigation is likely to clarify the picture. In the meantime, other states have already begun trying to imitate the S.B. 8 strategy.
The appearance of Dick Cheney in the House of Representatives on the anniversary of January 6th helped identify the true villain on the scene…
Dick
Former Vice President Dick Cheney visited the House of Representatives yesterday. He and his daughter Liz were the only two Republicans present at a moment of silence commemorating the events of last January 6th. It was a touching scene, which perfectly described why the surviving anti-Trump Uniparty of the political mainstream is at least as much of a threat to democracy as the “insurrectionists” they never stop wailing about.
In a story entitled “Dick Cheney returns to the House and receives a warm welcome . . . from Democrats,” the Washington Post wrote that “Democrats put aside their fierce and lasting policy divides with the Cheneys to thank them for condemning the attack and Trump’s continued effort to undermine the 2020 presidential election results with his false claims of fraud.”
I don’t mean to understate the seriousness of January 6th, even though it’s been absurdly misreported for over a year now. No one from a country where these things actually happen could mistake 1/6 for “a coup .” In the real version, the mob doesn’t take selfies and blaze doobies after seizing the palace, and the would-be dictator doesn’t spend 187 minutes snacking and watching Fox before tweeting “go home.” Instead, he works the phones nonstop to rally precinct chiefs, generals, and airport officials to the cause, because a coup is a real attempt to seize power. Britannica says the “chief prerequisite for a coup is control of all or part of the armed forces, the police, and other military elements.” We saw none of that on January 6th, but it’s become journalistic requirement to use either “coup” or “insurrection” in describing it:
The endless hyperventilating efforts to describe January 6th as a disaster on the order of Pearl Harbor or even 9/11 has been awesome to behold. Huffington Post nitwit S.V. Date even called it “1,000 percent worse” than 9/11, moving the decimal point over on the famous Team America joke*:
The panic inspired convulsions across politics and the media. Ted Cruz made a plea for mainstream recognition by denouncing 1/6 as a “violent terrorist attack” before cowering in retreat on Tucker Carlson Tonight, in the process pantsing himself with audiences in all directions. Meanwhile, podcaster Eric Lendrum, on the pro-Trump site American Greatness, devised the impressively crazy syllogism that because the mainstream caricature of Trump supporters is so incorrect, conservatives should therefore embrace it: “If their aim is to make January 6 their Reichstag Fire, then we should go forward celebrating the events of that day as our Storming of the Bastille.”
It was no heroic storming of the Bastille. January 6th was a massive LARP that got out of hand. Trump has been around long enough for us to know his pattern as a serial line-crosser. Like a comedian, he’s always trying out new material, and if he gets the right reaction, he comes back with a bigger delivery next time. January 6th was Trump dipping a toe in the lake of strongman politics. The reason it wasn’t worse is because Trump has also been constantly mislabeled as a Hitler, Stalin, or Pinochet. The man has no attention span, no interest in planning or strategy, and most importantly, no ability to maintain relationships with the type of people who do have those qualities (like Steve Bannon). Even if he wanted to overturn “democracy itself” — I don’t believe he does, but let’s say — Trump has proven over and over he lacks the qualities a politician would need to make that happen.
Which brings us back to Cheney. All those things Trump is rumored to be, Dick Cheney actually is. That’s why it’s so significant that he appeared on the floor of the House yesterday to be slobbered over by the Adam Schiffs and Nancy Pelosis of the world. Dick Cheney did more to destroy democracy in ten minutes of his Vice Presidency than Donald Trump did in four years.
Seeing leading Democrats nuzzling the man George W. Bush called “Iron Ass” summed up the essential problem of the ordinary person trying to find a political home in this landscape. Even if you find the Trump phenomenon troubling, his opposition is not only authoritarian, but organized and armed with the intellectual tools to understand and appreciate how the technological elimination of democracy might be achieved in the 21st century.
We’re living through a period where an unpleasantly likely outcome for the ordinary American is the invocation of emergency powers to eliminate basic rights. From which side is that threat most likely to come? The pattern during Trump’s presidency was hyping the Russian menace to justify increased surveillance and censorship. Russia has since been switched out in favor of two new emergency bugbears. The first is the rise of “domestic terrorism,” and if you don’t think Cheney-style democracy-canceling is on the minds of officials heading into the next presidential election, you haven’t been reading the growing pile of articles quoting military types advertising their preparations for counter-coup in 2024.
The second emergency of course is the pandemic, which ought to have been exhibit A in Trump’s uninterest in being a dictator — he could have legally invoked all sorts of powers and did not. Instead, it’s become part of a widening propaganda campaign designed to enlist the wine-cave MSNBC set behind full-blown Big Brother governance. Remember our Health and Human Services Secretary saying last summer, in advance of a “door-to-door” campaign that was supposedly about urging people toward the jab, that “it absolutely is the government’s business” to know who’s vaccinated and who isn’t? Or, have you noticed the total lack of interest among pundits and politicians in distinguishing between anti-vaxxers and people who merely have anti-mandate or anti-passport attitudes? It’s all the same obstructionism to them.
Where have we seen this style of intentional line-blurring to justify the expansion of executive authority before? From Cheney, who took emergency politics to places even a sober Joe McCarthy could never have dreamed of. On the pretense that new powers were needed to combat the sweeping global threat whose existence 9/11 supposedly proved, Cheney institutionalized executive assassination, torture, mass surveillance, secret prisons, secret budgeting, and the wholesale elimination of congressional oversight over most of his program, turning the world into what one Pentagon adviser who talked to Seymour Hersh back in the day called a “global free-fire zone.”
It was under Cheney’s watch that we turned into a country that snatched people off the streets all over the world, put them in indefinite detention in an archipelago of secret hell-holes, threatened to rape their family members, and resorted to techniques like “rectal feeding” so often that one Guantanamo Bay prisoner had to bring a special pillow to sit in court.
The core principle of Cheney’s politics was protecting his new bureaucracies of murder and open-ended detention from legal challenge. That meant creating structures that were legally invisible. Are you on a watch list? Has the FBI sent out a National Security Letter to your telecom provider? Have you been approved for “lethal action” and put on the “distribution matrix,” a.k.a. the kill list? Courts repeatedly declined to listen to complainants with such questions because the secrecy of the programs made it difficult or impossible to prove they had a cause of action, a perfect Catch-22.
Even members of congress were often unable to find out about whole ranges of programs unless an accident like the Edward Snowden revelations came their way. Cheney built a government inside a government that simply did not recognize the authority of the other branches. It’s no accident this person is now receiving a “warm welcome” from Democrats because that party has for years now been openly worshipful of his secret-hammer model of executive rule, which expanded to a conspicuous degree after he left office.
What would Cheney have done in response to 1/6 or the pandemic? We don’t have to work too hard to guess. His contemptuous vision of rights and constitutional law remains the face of American government, with the most obvious recent example being the extradition of Julian Assange. For thirteen years after Dick Cheney left the Vice President’s office, the United States remained committed to a ruthless manhunt of a person whose chief “crime” was the publishing of details of Cheney’s secret authoritarian state, from the “Gitmo files,” to the Afghan and Iraqi war logs, to the Collateral Murder video.
To go after Assange, the Biden (and Trump) administrations used the Espionage Act, a dystopian law from the Woodrow Wilson era written so broadly that being charged under it is essentially part of what defines a person as guilty of the crime. Barack Obama used it to go after leakers eight times. Worse, one of the people who was kissing Cheney’s ring yesterday, House Intelligence Chair Adam Schiff, not long ago beefed up a similar law called the Intelligence Identities Protection Act (IIPA) that would make any journalist who revealed the name of a covert agent engaged in assassination or torture, even long after the fact, subject to prosecution. This from a man, Schiff, who is the co-chair of the Congressional Freedom of the Press Caucus! A few years ago, the New York Times got hold of the CIA memo arguing in favor of the provision Schiff reportedly helped insert:
Particularly with the lengths organizations such as WikiLeaks are willing to go to obtain and release sensitive national security information, as well as incidents related to past Agency programs, such as the RDI investigation, the original congressional reasoning mentioned above for a narrow definition of “covert agent” no longer remains valid. This proposal would provide protection for all undercover Agency officers by allowing for the prosecution of individuals responsible for disclosing the identities of those officers…
As journalist Trevor Timm noted, “RDI” stands for “Rendition, Detention, and Interrogation,” and is a common euphemism for the CIA’s illegal torture program. If the Democrats cared at all about issues like transparency, human rights, and civil liberties, they would be recoiling in horror from the prosecution of Assange, and the head of their intel committee wouldn’t be working to make it easier to prosecute journalists for exposing war crimes and torture.
Instead, they’re backing the principle of arresting a non-American for the equivalent of treason, using a law that would render illegal practices that virtually every national security reporter engages in as a matter of routine.
For those who want to retort, “Most journalists don’t steal and hack derp!” I’d encourage reading the indictment. All but one of the charges against Assange are for things like “conspiracy to obtain national defense information” or “obtaining national defense information,” with “national defense information” defined with extraordinary vagueness. Just hearing information “the President has determined would be prejudicial to the national defense,” or which may be “used to the injury of the United States,” can put you in jail basically forever under this law.
This is not the same as revealing classified information (there are differentlaws for that). Widespread application of this law, or the IIPA, would essentially criminalize reporting on state wrongdoing, which was exactly the CIA’s point in arguing for such measures.
Before the Cheney era, the vast majority of us would have considered such thinking repellent and anti-American. In the last five years especially, though, Democrats, former security officials like John Brennan, and ex-Republicans like David Frum and Bill Kristol have pounded the table for this logic as more necessary than ever. They claim, as Cheney did, that not only are some threats so dire that extraordinary vigilance is necessary, but that the nature of those threats is such that counter-operations against them must not ever be corrupted by due process or oversight.
This is why these people can’t be trusted with policies like vaccine passports and/or Merrick Garland’s plan to “methodically track” what he called “violent extremists” and domestic terrorists in the wake of 1/6. The latter idea is particularly troubling given that no one connected with that incident has been charged with anything like terrorism, for the simple reason that what happened wasn’t terrorism.
The potential applications for a souped-up domestic version of Cheney’s still-extant watch lists are horrific to consider. Are we going to widen the circle of people who will mysteriously find themselves unable to get bank accounts, transfer money, or attend schools? Do we want to leave it up to the White House to determine what’s reporting and what’s “obtaining national defense information,” particularly if they start stretching the concept to cover revelations about the pandemic? Yes, it’s a little ironic that some of the people now on those lists may have cheered their creation once upon a time, when the victims were mainly Muslims. But that doesn’t make the idea of expanding the policy any less asinine.
Cheney’s reappearance and the outpouring of loony commentary describing 1/6 as a “coup” or an “insurrection” (instead of something closer to the American version of a soccer riot) are related. The types of policies that Cheney instituted relied upon the idea that government was capable of making unassailable decisions about, say, who was a real terrorist and who was just a taxi driver or a small-town cop in Yemen. He was successful in taking the courts out of the business of reviewing the detention of human beings because he argued that when it came to terrorism, our “professionals” didn’t make those errors. Cheney’s idea of justice was the same kind of insane authoritarian whack-off fantasy as the “surgical strike,” only even more dangerous because it had wider potential applications.
“Professionals” do make errors, about everything from terrorists to viruses. In fact, a fair number of the people seeking this enhanced authority are dumber than average. You don’t have to like Donald Trump to recognize the dire threat represented by a clique of mediocrities with just enough brains to use their offices to organize the criminalization of their opposition.
Think about how badly we botched the War on Terror, how many bombs we dropped in the wrong places, how many innocent people we turned into prisoners while suffering global delirium tremens, using 800 military bases full of Hellfire missiles toscratch all over at bugs that weren’t there. That madness made us a villain across the planet, exponentially increasing the risk of terrorist attacks. Are we really going to bring that show home?
Moderna CEO Scrambles To Sell More Boosters As Omicron Wave Shows Signs Of Waning
While the rest of the world rejoices at the possibility that the omicron wave might actually bring about the end of the pandemic (while also being bullish for stocks, as we explored earlier in a post about some recent findings out of South Africa), vaccine makers are already strategizing about how they will convince the world to keep buying boosters when the imminent threat posed by COVID has receded.
Speaking at a conference hosted by – who else? – Goldman Sachs, Moderna CEO Stephane Bancel said another round of vaccine boosters will probably be needed this fall, even if immunity to the rapidly spreading omicron does become widespread, like the South African scientists have warned.
Bancel added that even if omicron finally causes COVID to become endemic, there will still be a need for people to get their shots, since it’s not clear how long the current wave of immunity will hold. And there’s always uncertainty, since noboody can say for sure what future iterations of SARS-CoV-2 will be like.
“Assuming omicron is an acceleration to the endemic phase, I still believe we’re going to need boosters in the fall of ‘22 and forward,” Bancel said during his presentation.
But no matter what happens, boosters given this month or in the last quarter of 2021 will probably hold until spring begins in the Northern Hemisphere.
Moderna, which directly benefits from repeat inoculations, said during its Q3 earnings results that commercial booster market sales could be up to $2 billion in the United States in 2022.
As some countries (mostly US and Israel) deliver on plans to add more boosters, Moderna and its vaccine-producing rivals are scrambling to get as many governments as possible signed up for more shipments of their vaccines (remember, a booster is just half a dose of the vaccine). If the urgency surrounding COVID fades, then that could threaten their bottom line. And while WHO Chief Dr. Tedros has warned that countries can’t “boost their way out” of the pandemic, Moderna’s success is completely dependent on them selling more vaccines and boosters. And this isn’t just true of Moderna, but of its competitors as well.
Moderna and competitors J&J, Pfizer Inc. and BioNTech SE have an interest in nudging policymakers toward regular Covid shots. Countries around the world have rushed forward with booster drives in an attempt to slow omicron’s spread, even as it remains unclear how long the boosters will protect against infection. Israel has started offering a fourth dose of the vaccine to people aged 60 and over as the country grapples with record numbers of new cases.
Bancel also told Thursday’s conference that he also believes elderly citizens and those with underlying health conditions may need to get a booster shot every year, adding that Moderna is working on an omicron-specific jab, which the company has promised to have ready by springtime in the northern hemisphere.
Early data out of the UK last month purported to show that the protection afforded by booster shots waned far more quickly than scientists had anticipated.
They should have known better. Fed Chair Jay Powell and Treasury Secretary Janet Yellen, that is.
They spent the better part of 2021 saying consumer price inflation was ‘transitory.’ The two of them are most responsible for this inflation mess. How could they have been so wrong?
Now the scourge of raging consumer price inflation is here to stay. This, no doubt, will be a persistent theme in 2022. Moreover, the Fed’s efforts to tame and control it will be a magnificent source of folly.
To begin, central planners, including central bankers, believe they’re masters of the universe. That they possess the tools to, in Omar Khayyam’s words, “remould it nearer to the heart’s desire.”
The reality is central bankers are always reacting. And much of what they do is merely an attempt to cleanup messes of their own making.
Ben Bernanke, then Fed Chair, first commenced the great quantitative easing (QE) experiment in late November 2008. At the time, the Fed’s balance sheet was approximately $800 billion. Now, just over 13 years later, the Fed’s balance sheet is over $8.7 trillion – more than 10 times higher.
This mad undertaking has shown that once the QE genie’s let out of the bottle it’s impossible to put back without triggering disaster. The economy and financial markets have adjusted to the abundance of cheap credit. Businesses, governments – federal state, and local – and individuals depend on it. Take it away and the whole debt edifice implodes.
This mad undertaking has also shown the impacts of QE are dependent on where the fake money ultimately flows. This important distinction is why the Fed’s efforts to control consumer price inflation are doomed. Let’s explore…
Where the Fake Money Flows
When the Fed first began creating credit out of thin air to buy Treasury notes and mortgage backed securities, hard money aficionados were revolted. Many prophesized that a Weimar Germany type hyperinflation was just around the corner.
And why not?
As night follows day should not price inflation follow money supply inflation?
Well, yes. Of course. But what type of price inflation? That’s the real distinction…
From 2008 to 2015, the Fed’s balance sheet inflated from $800 billion to about $4.5 trillion. Over this time, college tuition and health insurance costs went through the roof. But to the delight of Paul Krugman and other statist economists, price increases for most consumer goods and services were moderate.
Perhaps cheap labor out of Asia helped prevent consumer prices from dramatically inflating. Still, we posit that moderate consumer price inflation between 2008 and 2015, even with QE, was mainly a function of where the fake money flowed.
You see, QE and the TARP bailouts started in late 2008 were a bailout of Wall Street and big businesses like General Motors via AIG. Working stiffs got squat. They lost their houses. They lost their jobs. Stimmy checks didn’t show up in the mail.
Specifically, the money supply inflation from 2008 to 2015 flowed to financial assets. Stocks, bonds, and real estate prices boomed. Speculative fever boomed too, along with financial engineering schemes like companies using low cost debt for corporate share repurchases.
All the while, average consumers were tight on cash. Those who didn’t lose their house found some relief through refinancing at lower rates. But this merely afforded them Sunday lunches at Applebee’s. The abundance of cheap imports at Costco and Walmart were no match for these piddly cash flow increases to family balance sheets.
From 2015 to late 2019, the Fed attempted to draw down its balance sheet. But after dropping about $700 billion, to roughly $3.8 trillion, all hell broke loose. In September 2019, overnight money market rates spiked and the Fed had to backstop the repo market.
This breakdown in the repo market was soon overshadowed by the mass money printing instituted to bailout the consequences of government mandated lockdowns. Upwards of $5 trillion was created out of thin air to buy Treasury notes and mortgage backed securities. Only this time it was different…
This Time It’s Different
The 2008-09 bailout of Wall Street opened people’s eyes and minds to what’s possible. Thus as the Fed went into full big business bailout mode in 2020, the plebs started asking…where’s the people’s bailout? Where’s QE for the people?
What’s more, the people had a moral case to make. Through no fault of their own, state sponsored destruction, as a mad response to coronavirus, had eradicated their jobs. So it was only fair for the people to get a bailout too, right?
The CARES Act, which included a $1,200 stimulus check and an additional $600 weekly payment for the unemployed, offered many people their first taste of free money succor. They liked its sweet taste. And they wanted more.
A $1,200 stimulus check was nice, and all. But a $2,000 monthly payment is way better. So why stop there?
When money’s free, the supply’s infinite…ain’t it?
Thus more stimmy checks were delivered like manna from heaven. And many working stiffs discovered it was more prosperous not to work.
But if everyone’s home watching Netflix – or getting rich trading cryptos in the metaverse – who’s left to make pizzas or milk cows? And at what price?
The federal government’s fiscal deficits for fiscal years 2020 and 2021 were $3.13 trillion and $2.77 trillion, respectively. That’s nearly $6 trillion of fake money – money supplied via Fed purchases of Treasury notes with credit created out of thin air – that was spent directly into the economy over 24 months.
At the start of 2021, consumer prices, as measured by the consumer price index (CPI) were increasing at an annual rate of 1.4 percent. As of November 2021, the CPI is rising at an annualized rate of 6.8 percent…marking the greatest increase to consumer prices in over 40 years. And if the CPI was still calculated the way it was in the 1980s, it would be over 15 percent.
What to make of it…
This week, minutes from the Fed’s December meeting were released. Finally, the minutes show, committee members are concerned about inflation. The Fed may even begin reducing its balance sheet and raising the federal funds rate this year. Stocks sold off and Treasury yields spiked upward on this revelation.
Should the Fed go forward with these credit tightening plans you can expect asset prices to deflate. But what about consumer prices?
Not likely. And that’s why this time it’s different…
Unlike the QE from 2008 to 2015, the QE from 2019 to the present included massive social spending. This was more than a Wall Street bailout.
The $6 trillion in deficit spending represents fake money that’s been released directly into the economy. Raising rates and selling off bonds won’t mop this money up; at least not with the same efficiency it does for financial asset inflation.
So as asset prices deflate in 2022, something unexpected will happen: Consumer prices will continue to inflate.
Moreover, the Fed will be completely flummoxed by this magnificent folly. But then what?
Will Congress reduce deficit spending? Will the Fed push rates high enough to trigger a depression? Will Weimar inflation finally come to America?
We may soon find out.
* * *
Navigating these challenges in 2022 will be a critical task for investors. After decades of research, we’ve developed the Geometric Wealth Building Program for precisely this scenario. If you’ve never heard of Geometric Wealth Building, that’s OK. Most people haven’t. You can find out all about it here! Get started today!
Queen Refuses To Pay For Prince Andrew’s Pedo Defense, Forcing Him To Unload Chalet In Fire Sale
The Queen of England is reportedly refusing to pay for Prince Andrew’s legal fees while a US judge decides whether a civil case brought by accuser Virginia Guiffre will be allowed to proceed, according to Newshub.
Giuffre claims that Andrew, son of the Queen and Duke of York, sexually assaulted her when she was 17-years-old after Jeffrey Epstein and Ghislaine Maxwell sex-trafficked her.
An American judge is currently deciding whether a civil case brought by Giuffre against the Duke in New York should go ahead. Prince Andrew’s lawyers argue he can’t be tried as he is covered by a deal made in 2009 between Epstein and Giuffre.
The deal, released publicly earlier this month, shows that Giuffre was paid US$500,000 by the now-dead sex offender Epstein to end a claim for damages. She also agreed not to bring any cases against other “potential defendants”; whether that applies to Prince Andrew, who is not named in the deal, is what is in question. -Newshub
If the trial is allowed, many suspect Andrew could settle out of court. According to The Times, a settlement is “on the table,” but Andrew reportedly “has been very clear that he wants to clear his name.”
Meanwhile, The Mirror reports that Andrew is looking for a fire sale on his US$23 million Swiss chalet to pay for legal fees, after the Queen reportedly said she wouldn’t pay for his legal defense.
Supply chain disruptions have not been resolved, and it’s not clear when they will be. You’re seeing the effects of these disruptions at the store in the forms of shortages and higher prices.
Yet the supply chain is a subject that very few are familiar with beyond a superficial acquaintance.
Most people think the supply chain is just part of the global economy. That’s not entirely true. The supply chain is the global economy.
There isn’t a single good or service of any kind that does not arrive through a supply chain. Not one.
If the global supply chain is broken, then the global economy is broken. That increasingly appears to be the case.
The supply chain difficulties will grow worse. Even more troubling is the fact that the remedies will take years and sometimes decades to implement.
The reasons for this have to do with long lead times in implementing onshoring. For example, the U.S. can cut its dependence on Asian semiconductor imports by building its own semiconductor fabrication plans (fabs).
The problem is that these plants take from three–five years to build, and the scale needed is enormous.
There are impediments to supply chain recovery that are not directly related to particular supply chains that nonetheless hurt the process of adaptation and substitution.
For example, there’s already a labor shortage in America. The causes are complicated.
There’s no literal shortage of potential workers, but many workers prefer to stay home because of some combination of government benefits, child-care responsibilities or inadequate pay offered by employers (who can’t afford to pay more themselves because they’ll go out of business).
A lot of this labor shortage centers on lower-wage jobs such as waiters, store clerks, fast-food staff and office assistants. But there will be a labor shortage coming soon in more high-skilled areas such as engineers, pilots, machinists and medical personnel.
This shortage will not be due to low pay, but to vaccine mandates.
President Biden has ordered that all federal contractors must be fully vaccinated by Jan. 18, 2022. (That’s in addition to federal workers and the military who are already subject to vaccine mandates and have no choice).
The vaccinated rate among federal contractors is actually lower than the country as a whole. The national vaccination rate is approaching 70%, while the federal contractor rate is closer to 60%.
It’s even lower in some specialties such as avionics.
These workers know the vaccine is available, understand the risks (both ways because of side effects) and have chosen not to be vaccinated. It’s almost impossible to change their minds at this point.
Though the courts have blocked the mandate, the Biden administration is not backing off. The federal contractor workforce is huge, in the millions. We expect a massive wave of resignations and terminations among highly skilled workers if the administration gets its way.
Professionals and high-value-added blue-collar workers from Boeing to Textron and hundreds of thousands of other firms will be fired or will quit.
The U.S. economy is already weak. The supply chain is already in disarray. This mass termination of skilled contractors could put the economy into a recession.
Some analysts have even suggested that the global supply chain is being sabotaged by major participants such as China to hurt Western economies for geopolitical reasons.
It’s difficult to tell if the supply chain is being intentionally sabotaged or whether it’s just collapsing under its own weight. Possibly both.
In a way, it doesn’t matter because anything as complex and as highly scaled as the global supply chain will always collapse; it’s just a question of when.
For 30 years, the goal of supply chain management has been efficiency, usually defined as the elimination of redundancy, inventory and latency (more on that below). That’s fine in the short run but it results in a system that is brittle and has no tolerance for even small disruptions.
The nature of complex systems is that small causes have tremendous impacts to the point of total collapse.
It is possible that one or more parties chose to disrupt the system intentionally without realizing how vulnerable the entire system really was. This combination of intentional acts and unintended consequences is a staple of history, including the outbreak of World War I.
Once the implosion begins, it’s very difficult to stop.
