Month: January 2022

Democrats May Pressure the GOP Into Making the Filibuster Meaningless


covphotos195734

Democrats are dusting off a familiar strategy to advance key pieces of President Joe Biden’s agenda through the evenly divided Senate over Republican objections. In doing so, they hope to pressure Republicans to finally support their effort to take up the John R. Lewis Voting Rights Advancement Act. And Democrats’ past success employing the strategy to compel Republicans to cooperate with them suggests that their plan could work again this time.

Republicans have twice prevented the Senate from taking up the voting rights bill by filibustering it. The bill’s supporters have called for changing the Senate rules to prevent a minority of senators from using the filibuster to prevent a majority from debating it on the Senate floor. In addition, they want Democrats to create a filibuster carveout for the voting rights bill, similar to the one senators granted debt-limit legislation last month.

Senate Majority Leader Chuck Schumer (D–N.Y.) has acknowledged the growing frustration with the Senate’s inability to debate voting rights. However, Schumer pledged that senators would have another opportunity to take up the bill before Martin Luther King Jr. Day on January 17. He threatened Republicans that Democrats will eliminate the filibuster if the GOP uses it again to prevent the Senate from voting on the bill.

Democrats used the same strategy 10 years ago to compel Republicans to stop obstructing President Barack Obama’s agenda and nominees. At the time, Republicans repeatedly gave in to Democrats’ demands to pass rule changes that disadvantaged them and support presidential nominees they had previously opposed.

Republicans can use the right to filibuster or debate the voting rights bill to prevent the Senate from taking it up in the first place. Unlike the simple majority it takes for actually passing legislation, it takes three-fifths of the Senate to invoke cloture (i.e., end debate) on the bill as well as a motion to proceed to its consideration. The filibuster empowers Republicans to obstruct Biden’s agenda, though Democrats are not powerless either. Article I, Section 5, Clause 2 of the Constitution empowers a majority of senators to determine the rules that regulate the Senate’s proceedings, including those related to the filibuster.

Democrats and Republicans alike have used this power in the past to restrict the minority’s ability to filibuster their agenda on the Senate floor. And Democrats are presently betting that the threat to eliminate the filibuster will pressure Republicans to drop their opposition to the voting rights bill.

Democrats previously threatened to eliminate the filibuster on several occasions between 2011 and 2013. At the time, Democrats believed they could compel enough Republicans to vote to end their party’s filibusters by clearly communicating in advance their threat to eliminate it if Republicans did not cooperate.

Democrats’ threats pressured leading Republicans like Senate Minority Leader Mitch McConnell (R–Ky.) and then–Rules Committee Ranking Member Lamar Alexander (R–Tenn.) to negotiate a rules reform package at the beginning of the 112th Congress that empowered Democrats and disadvantaged Republicans. Democrats threatened to eliminate the filibuster in 2013 if Republicans did not drop their opposition to Obama’s picks for director of the Consumer Financial Protection Bureau, secretary of labor, and Environmental Protection Agency administrator.

The threat worked. Democrats successfully pressured Republicans to change their position. The Senate invoked cloture on Richard Cordray’s nomination for CFPB director by a vote of 71–29. Seventeen Republicans voted to end the debate on Cordray despite having signed a letter pledging to oppose his nomination. And Democrats averted filibusters on Secretary of Labor Tom Perez’s nomination and Gina McCarthy’s nomination to be EPA administrator. Six Republicans who previously opposed Perez’s nomination voted instead to advance it, including Alexander, Sen. Mark Kirk (R–Ill.), and Sen. Lisa Murkowski (R–Alaska).

Democrats’ previous threats to eliminate the filibuster compelled many Republicans to cooperate with them. The Republicans in question believed they could preserve the filibuster in the long term by agreeing not to use it at the moment. But their repeated capitulations instead encouraged Democrats to keep threatening to eliminate the filibuster whenever Republicans used it to frustrate Democratic plans. Republican behavior signaled to Democrats that they would continue to fold in the future.

Democrats hope to recreate the same dynamic concerning the voting rights bill with their latest threat. Suppose they succeed in pressuring Republicans to capitulate––in that case, the result will be to make the filibuster meaningless without eliminating it.

The post Democrats May Pressure the GOP Into Making the Filibuster Meaningless appeared first on Reason.com.

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Short Circuit: A Roundup of Recent Federal Court Decisions

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

Friends, pandemic-permitting, there’s not much we’d like more than to see you in Atlanta on February 4th at our forum on Georgia’s constitution at Georgia State University College of Law. With a keynote by former Justice Keith R. Blackwell, it’s an event not to be missed! Click here to learn more.

  • Allegation: During the mid-2000s, the terrorist group Jaysh al-Mahdi openly controlled Iraq’s Ministry of Health and used it as a vehicle for terrorist activity. They were abetted in this by medical supply and manufacturing companies with U.S. ties, who provided kickbacks to the group in exchange for lucrative business opportunities in the country. Victims of Jaysh al-Mahdi’s terrorist attacks that were in part funded by those kickbacks sue the companies under the Anti-Terrorism Act. D.C. Circuit: Yeah, if that’s all true, it’s pretty bad. I mean, the Ministry of Health Headquarters is alleged to have had “Death to America” signs hanging all around it. So the case goes forward.
  • Woman attending her boyfriend’s plea hearing (attempted murder of the mailman) exclaims “piece of shit!” as she leaves the courtroom. The judge calls her to the bench, holds a two-minute hearing, declares her guilty of criminal contempt, and sentences her to ten days behind bars, to begin immediately. (She’s ultimately confined for 13 days due to “an error.”) Fourth Circuit: There’s not a lick of evidence the woman had the criminal intent necessary for a contempt conviction. Overturned. And lay off these summary hearings.
  • Medicare administrative contractor concludes that a Medicare service provider for nursing homes received $8.3 mil in excess reimbursements and begins recouping payments. The service provider seeks redetermination from the administrative contractor and loses. So it takes the next step, seeks reconsideration by an independent contractor and loses. So it takes the next step and seeks review by an ALJ and loses. Finally it takes the next step and seeks review by the Medicare Appeals Council, wins, and sues HHS for repayment of the recouped funds (meanwhile, during this years-long process, the company has gone out of business). District Court: No jurisdiction. Your grievance about not getting repaid is a separate agency action that hasn’t been administratively exhausted. Fifth Circuit: No, it’s a continuation of the same agency action—and the administrative contractor’s sneaky, eleventh-hour attempt to drag the case back into administrative hell was ultra vires.
  • Man is sent back to jail for attending his plea hearing drunk. Were Crawford County, Mich. jail officials who saw his delirium tremens symptoms—hallucinations, agitation, and disorientation brought on by alcohol withdrawal—deliberately indifferent for not seeking medical treatment until it was too late? Sixth Circuit: A jury might think so. No to qualified immunity; yes to trial.
  • Is whether the president can require federal contractors to employ vaccinated workers a “major question?” Sixth Circuit: Yep. So the relevant statute likely does not give him that authority.
  • Michigan man: No, I wasn’t super drunk at the airport. My daughter (in tears, afraid to leave with me), a bystander, and several police officers were all wrong about that. I can sue the officers for arresting me for disorderly conduct, yes? Sixth Circuit: No.
  • A handy rule of thumb in Fourth Amendment cases is that drivers always lose. So it is in this case out of the Eighth Circuit, in which police claim to have detected the smell of burning marijuana coming in through the back windows of their patrol car while 100 meters behind a suspect’s moving car on a windy day. Now that may seem unlikely, particularly because the suspect’s car contained less than a gram of unburnt marijuana in a closed container, but don’t worry, the plausibility of this was confirmed by a trainer for Desert Snow, a company run by cops that trains other cops on how to civilly forfeit as much property as possible. So anyway, this guy is going to jail for being a felon in possession.
  • Allegation: Motorist arrested for suspected DUI turns out to have a prescription for the only drug found in his system. He dies after going without medication, experiencing mental health crisis, and scuffling with Willcox, Ariz. jail officers. Ninth Circuit: Qualified immunity for punching, tasing, and pinning him down until he was restrained. No qualified immunity for tasing and choking him after he was restrained. Also Ninth Circuit: Where’s the video?
  • Washington state woman goes to a federally qualified community health center for her regularly scheduled injection of the birth-control drug Depo-Provera. Oops! They give her the flu shot instead. When she goes back for her next birth-control injection, they explain their whoopsie-doodle and suggest she take a pregnancy test. She’s pregnant, and later gives birth to a child who suffers from epilepsy and bilateral perisylvian polymicrogyria, a birth defect of the brain’s cortex that causes neurological delays. She brings a “wrongful birth” claim under the Federal Tort Claims Act, and she, her partner, and her child receive over $10 mil in damages. Ninth Circuit: We’re going to ask the Washington Supreme Court to clarify whether you can have a wrongful birth claim when there’s no reason to suspect a birth defect. We are also—INEXPLICABLY!—going to use a “(simplified)” parenthetical instead of @SCOTUSPlaces now-standard “(cleaned up)” parenthetical.
  • Decades ago, a group of RV owners purchased 50-year memberships to an RV park on the banks of Lake Chelan, Wash. Yikes! The RV park only had a 25-year lease. Can the RV owners stay? Ninth Circuit: Well, it’s complicated—this is American Indian land currently held in (disputed) trust by the Bureau of Indian Affairs, and resolving the question requires our delving into 19th century land ownership, 20th century executive orders and treaties, and 21st century estate statutes. The short answer is the RV owners are going to have to find somewhere else to vacation.
  • Is it cool for a district court to impose a longer sentence on a defendant for having pleaded guilty without a plea agreement? Tenth Circuit: What? Decidedly not cool. And more to the point, inconsistent with 18 U.S.C. § 3553(a) and hence procedurally unreasonable. Case remanded for resentencing.
  • Allegation: On learning one of her dancers, a high school senior, had been selected to be on a major university’s dance team, Overland Park, Kans. dance coach texts her disappointment to a colleague (cleaned up): “It actually makes my stomach hurt. Bc she’s f*****g black. I hate that.” The principal fires the coach, but the coach, among other things, encourages the dancer’s teammates to be unkind to her. (They oblige.) Tenth Circuit: There may not be a case right on point, but it’s been obvious since the 1950s that treating African-American students differently because of their race is unconstitutional. No qualified immunity for the coach.
  • Tenth Circuit: Though some states allow it, there’s nothing in the U.S. Constitution or federal law that requires courts to grant defendants access to a crime scene that is in the control of a third party. So no need to disturb man’s convictions for, among other things, murdering his ex-girlfriend in her trailer (now in the control of relatives) on tribal land in Oklahoma.
  • Does the State of Florida have standing to appeal a federal district court’s order making federal funds available for a federal public defender to appear in state post-conviction proceedings on behalf of a death-row inmate? (Confused? Welcome to habeas.) Eleventh Circuit: No. Two-judge special concurrence: Here’s an advisory opinion on why we’d reverse the district court “if we had jurisdiction over this appeal.”
  • Plaintiff: In the 1940s, the City of New York contaminated land I eventually bought in 1986. That means they’re trespassing by leaving their contaminants behind, and they owe me damages, and also I shouldn’t have to pay the taxes I owe on the land! Eleventh Circuit: Sir, this is an Arby’s a bankruptcy proceeding. You can’t fight about your property taxes here, and your trespass claim is way, way time-barred. Concurrence: But, since you asked, your trespass thing is also just wrong.
  • And in en banc news, the First Circuit will reconsider its (2018, unpublished) decision granting qualified immunity to Massachusetts prison officials who allegedly kept an inmate in solitary confinement for 611 days without adequate justification or meaningful review.
  • And in more en banc news, the Eleventh Circuit will reconsider its decision allowing a lawsuit to go forward against Martin County, Fla. officers who arrested and jailed a man named David Sosa for three days even though he told them they were after a different man named David Sosa (which he knew because he’d previously been mistaken for the wanted Sosa).

The Institute for Justice is currently recruiting our next class of Litigation Fellows to join us in August 2023. We are looking for passionate and entrepreneurial attorneys with 0-2 years of experience to join our headquarters office inArlington, Va. This Fellowship is IJ’s preferred path for recent graduates or post-clerkship candidates with less than two years of experience. Upon completion, Fellows are considered for permanent employment. Outside the courtroom, Fellows have the opportunity to do media writing and appearances, public speaking, grassroots activism and direct advocacy to policymakers and legislators. Throughout the two-year fellowship, Fellows benefit from mentorship opportunities, expert media training, and a supportive and collegial legal work culture. Interviews and offers will be on a rolling basis. For more information, visit www.ij.org/jobs.

The post Short Circuit: A Roundup of Recent Federal Court Decisions appeared first on Reason.com.

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Pentagon Further Tightens COVID Restrictions After Secretary Austin Tests Positive

Pentagon Further Tightens COVID Restrictions After Secretary Austin Tests Positive

Authored by Jack Phillips via The Epoch Times,

The Department of Defense (DOD) on Friday tightened its COVID-19 restrictions in the midst of a rise in cases nationwide and days after Secretary Lloyd Austin tested positive for the virus.

Starting Jan. 10 at 5:00 a.m., the Pentagon will reduce its occupancy limit to 25 percent or fewer, while social distancing will stay at six feet. Personnel, including fully vaccinated people, will have to wear a mask indoors unless alone in an office, eating or drinking, or in several other circumstances, according to two memorandums issued by the DOD.

In a memo to staff (pdf), Deputy Defense Secretary Kathleen Hicks told all supervisors to use the maximum number of telework opportunities as well as flexible scheduling.

“It is my intent for you to comply with this limit to the fullest extent possible,” Hicks wrote in the directive.

“We are experiencing a rapidly evolving situation and your carefully considered requests for exception from the occupancy rate may be granted by the [Director of Administration and Management of the U.S. Department of Defense]  but must be limited to mission-critical activities and must explain why alternatives to a higher occupancy rate are insufficient.”

DOD staff members’ “continued diligence and adherence to occupancy limits will aid in reducing the surge of new cases,” Hicks claimed.

For the past several months, the Pentagon operated under a directive that allows 40 percent of personnel to work in the building while the rest teleworked.

“Significant upward trends, the rise in positive case counts, including the current spread of the Omicron variant, as well as the consideration that the majority of our workforce is fully vaccinated, weighed heavily in the decision to adjust safety plans,” Michael Donley, the Director of Administration and Management, in a memo to senior Pentagon leadership, wrote in a separate memo (pdf).

While data has suggested that Omicron can easily spread, data and studies have shown it appears to cause fewer deaths and hospitalizations than previously dominant variants. Studies have also suggested that the strain can easily infect fully vaccinated and boosted individuals.

An official with the World Health Organization, citing studies, said earlier this week that because Omicron primarily infects the upper respiratory tract, it’s less likely to cause severe pneumonia.

And the latest directive will allow the DOD to “maintain force health protection measures mitigating the spread of COVID-19 in our own communities, among our military personnel, DOD civilian employees, and on-site contractor workforce,” Donley also wrote.

Earlier this week, Austin confirmed that he tested positive for COVID-19, caused by the CCP (Chinese Communist Party) virus. Austin, who is fully vaccinated and received a booster dose in October 2021, said he has mild symptoms.

Tyler Durden
Fri, 01/07/2022 – 15:43

via ZeroHedge News https://ift.tt/3Fa4s6S Tyler Durden

Democrats May Pressure the GOP Into Making the Filibuster Meaningless


covphotos195734

Democrats are dusting off a familiar strategy to advance key pieces of President Joe Biden’s agenda through the evenly divided Senate over Republican objections. In doing so, they hope to pressure Republicans to finally support their effort to take up the John R. Lewis Voting Rights Advancement Act. And Democrats’ past success employing the strategy to compel Republicans to cooperate with them suggests that their plan could work again this time.

Republicans have twice prevented the Senate from taking up the voting rights bill by filibustering it. The bill’s supporters have called for changing the Senate rules to prevent a minority of senators from using the filibuster to prevent a majority from debating it on the Senate floor. In addition, they want Democrats to create a filibuster carveout for the voting rights bill, similar to the one senators granted debt-limit legislation last month.

Senate Majority Leader Chuck Schumer (D–N.Y.) has acknowledged the growing frustration with the Senate’s inability to debate voting rights. However, Schumer pledged that senators would have another opportunity to take up the bill before Martin Luther King Jr. Day on January 17. He threatened Republicans that Democrats will eliminate the filibuster if the GOP uses it again to prevent the Senate from voting on the bill.

Democrats used the same strategy 10 years ago to compel Republicans to stop obstructing President Barack Obama’s agenda and nominees. At the time, Republicans repeatedly gave in to Democrats’ demands to pass rule changes that disadvantaged them and support presidential nominees they had previously opposed.

Republicans can use the right to filibuster or debate the voting rights bill to prevent the Senate from taking it up in the first place. Unlike the simple majority it takes for actually passing legislation, it takes three-fifths of the Senate to invoke cloture (i.e., end debate) on the bill as well as a motion to proceed to its consideration. The filibuster empowers Republicans to obstruct Biden’s agenda, though Democrats are not powerless either. Article I, Section 5, Clause 2 of the Constitution empowers a majority of senators to determine the rules that regulate the Senate’s proceedings, including those related to the filibuster.

Democrats and Republicans alike have used this power in the past to restrict the minority’s ability to filibuster their agenda on the Senate floor. And Democrats are presently betting that the threat to eliminate the filibuster will pressure Republicans to drop their opposition to the voting rights bill.

Democrats previously threatened to eliminate the filibuster on several occasions between 2011 and 2013. At the time, Democrats believed they could compel enough Republicans to vote to end their party’s filibusters by clearly communicating in advance their threat to eliminate it if Republicans did not cooperate.

Democrats’ threats pressured leading Republicans like Senate Minority Leader Mitch McConnell (R–Ky.) and then–Rules Committee Ranking Member Lamar Alexander (R–Tenn.) to negotiate a rules reform package at the beginning of the 112th Congress that empowered Democrats and disadvantaged Republicans. Democrats threatened to eliminate the filibuster in 2013 if Republicans did not drop their opposition to Obama’s picks for director of the Consumer Financial Protection Bureau, secretary of labor, and Environmental Protection Agency administrator.

The threat worked. Democrats successfully pressured Republicans to change their position. The Senate invoked cloture on Richard Cordray’s nomination for CFPB director by a vote of 71–29. Seventeen Republicans voted to end the debate on Cordray despite having signed a letter pledging to oppose his nomination. And Democrats averted filibusters on Secretary of Labor Tom Perez’s nomination and Gina McCarthy’s nomination to be EPA administrator. Six Republicans who previously opposed Perez’s nomination voted instead to advance it, including Alexander, Sen. Mark Kirk (R–Ill.), and Sen. Lisa Murkowski (R–Alaska).

Democrats’ previous threats to eliminate the filibuster compelled many Republicans to cooperate with them. The Republicans in question believed they could preserve the filibuster in the long term by agreeing not to use it at the moment. But their repeated capitulations instead encouraged Democrats to keep threatening to eliminate the filibuster whenever Republicans used it to frustrate Democratic plans. Republican behavior signaled to Democrats that they would continue to fold in the future.

Democrats hope to recreate the same dynamic concerning the voting rights bill with their latest threat. Suppose they succeed in pressuring Republicans to capitulate––in that case, the result will be to make the filibuster meaningless without eliminating it.

The post Democrats May Pressure the GOP Into Making the Filibuster Meaningless appeared first on Reason.com.

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Short Circuit: A Roundup of Recent Federal Court Decisions

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

Friends, pandemic-permitting, there’s not much we’d like more than to see you in Atlanta on February 4th at our forum on Georgia’s constitution at Georgia State University College of Law. With a keynote by former Justice Keith R. Blackwell, it’s an event not to be missed! Click here to learn more.

  • Allegation: During the mid-2000s, the terrorist group Jaysh al-Mahdi openly controlled Iraq’s Ministry of Health and used it as a vehicle for terrorist activity. They were abetted in this by medical supply and manufacturing companies with U.S. ties, who provided kickbacks to the group in exchange for lucrative business opportunities in the country. Victims of Jaysh al-Mahdi’s terrorist attacks that were in part funded by those kickbacks sue the companies under the Anti-Terrorism Act. D.C. Circuit: Yeah, if that’s all true, it’s pretty bad. I mean, the Ministry of Health Headquarters is alleged to have had “Death to America” signs hanging all around it. So the case goes forward.
  • Woman attending her boyfriend’s plea hearing (attempted murder of the mailman) exclaims “piece of shit!” as she leaves the courtroom. The judge calls her to the bench, holds a two-minute hearing, declares her guilty of criminal contempt, and sentences her to ten days behind bars, to begin immediately. (She’s ultimately confined for 13 days due to “an error.”) Fourth Circuit: There’s not a lick of evidence the woman had the criminal intent necessary for a contempt conviction. Overturned. And lay off these summary hearings.
  • Medicare administrative contractor concludes that a Medicare service provider for nursing homes received $8.3 mil in excess reimbursements and begins recouping payments. The service provider seeks redetermination from the administrative contractor and loses. So it takes the next step, seeks reconsideration by an independent contractor and loses. So it takes the next step and seeks review by an ALJ and loses. Finally it takes the next step and seeks review by the Medicare Appeals Council, wins, and sues HHS for repayment of the recouped funds (meanwhile, during this years-long process, the company has gone out of business). District Court: No jurisdiction. Your grievance about not getting repaid is a separate agency action that hasn’t been administratively exhausted. Fifth Circuit: No, it’s a continuation of the same agency action—and the administrative contractor’s sneaky, eleventh-hour attempt to drag the case back into administrative hell was ultra vires.
  • Man is sent back to jail for attending his plea hearing drunk. Were Crawford County, Mich. jail officials who saw his delirium tremens symptoms—hallucinations, agitation, and disorientation brought on by alcohol withdrawal—deliberately indifferent for not seeking medical treatment until it was too late? Sixth Circuit: A jury might think so. No to qualified immunity; yes to trial.
  • Is whether the president can require federal contractors to employ vaccinated workers a “major question?” Sixth Circuit: Yep. So the relevant statute likely does not give him that authority.
  • Michigan man: No, I wasn’t super drunk at the airport. My daughter (in tears, afraid to leave with me), a bystander, and several police officers were all wrong about that. I can sue the officers for arresting me for disorderly conduct, yes? Sixth Circuit: No.
  • A handy rule of thumb in Fourth Amendment cases is that drivers always lose. So it is in this case out of the Eighth Circuit, in which police claim to have detected the smell of burning marijuana coming in through the back windows of their patrol car while 100 meters behind a suspect’s moving car on a windy day. Now that may seem unlikely, particularly because the suspect’s car contained less than a gram of unburnt marijuana in a closed container, but don’t worry, the plausibility of this was confirmed by a trainer for Desert Snow, a company run by cops that trains other cops on how to civilly forfeit as much property as possible. So anyway, this guy is going to jail for being a felon in possession.
  • Allegation: Motorist arrested for suspected DUI turns out to have a prescription for the only drug found in his system. He dies after going without medication, experiencing mental health crisis, and scuffling with Willcox, Ariz. jail officers. Ninth Circuit: Qualified immunity for punching, tasing, and pinning him down until he was restrained. No qualified immunity for tasing and choking him after he was restrained. Also Ninth Circuit: Where’s the video?
  • Washington state woman goes to a federally qualified community health center for her regularly scheduled injection of the birth-control drug Depo-Provera. Oops! They give her the flu shot instead. When she goes back for her next birth-control injection, they explain their whoopsie-doodle and suggest she take a pregnancy test. She’s pregnant, and later gives birth to a child who suffers from epilepsy and bilateral perisylvian polymicrogyria, a birth defect of the brain’s cortex that causes neurological delays. She brings a “wrongful birth” claim under the Federal Tort Claims Act, and she, her partner, and her child receive over $10 mil in damages. Ninth Circuit: We’re going to ask the Washington Supreme Court to clarify whether you can have a wrongful birth claim when there’s no reason to suspect a birth defect. We are also—INEXPLICABLY!—going to use a “(simplified)” parenthetical instead of @SCOTUSPlaces now-standard “(cleaned up)” parenthetical.
  • Decades ago, a group of RV owners purchased 50-year memberships to an RV park on the banks of Lake Chelan, Wash. Yikes! The RV park only had a 25-year lease. Can the RV owners stay? Ninth Circuit: Well, it’s complicated—this is American Indian land currently held in (disputed) trust by the Bureau of Indian Affairs, and resolving the question requires our delving into 19th century land ownership, 20th century executive orders and treaties, and 21st century estate statutes. The short answer is the RV owners are going to have to find somewhere else to vacation.
  • Is it cool for a district court to impose a longer sentence on a defendant for having pleaded guilty without a plea agreement? Tenth Circuit: What? Decidedly not cool. And more to the point, inconsistent with 18 U.S.C. § 3553(a) and hence procedurally unreasonable. Case remanded for resentencing.
  • Allegation: On learning one of her dancers, a high school senior, had been selected to be on a major university’s dance team, Overland Park, Kans. dance coach texts her disappointment to a colleague (cleaned up): “It actually makes my stomach hurt. Bc she’s f*****g black. I hate that.” The principal fires the coach, but the coach, among other things, encourages the dancer’s teammates to be unkind to her. (They oblige.) Tenth Circuit: There may not be a case right on point, but it’s been obvious since the 1950s that treating African-American students differently because of their race is unconstitutional. No qualified immunity for the coach.
  • Tenth Circuit: Though some states allow it, there’s nothing in the U.S. Constitution or federal law that requires courts to grant defendants access to a crime scene that is in the control of a third party. So no need to disturb man’s convictions for, among other things, murdering his ex-girlfriend in her trailer (now in the control of relatives) on tribal land in Oklahoma.
  • Does the State of Florida have standing to appeal a federal district court’s order making federal funds available for a federal public defender to appear in state post-conviction proceedings on behalf of a death-row inmate? (Confused? Welcome to habeas.) Eleventh Circuit: No. Two-judge special concurrence: Here’s an advisory opinion on why we’d reverse the district court “if we had jurisdiction over this appeal.”
  • Plaintiff: In the 1940s, the City of New York contaminated land I eventually bought in 1986. That means they’re trespassing by leaving their contaminants behind, and they owe me damages, and also I shouldn’t have to pay the taxes I owe on the land! Eleventh Circuit: Sir, this is an Arby’s a bankruptcy proceeding. You can’t fight about your property taxes here, and your trespass claim is way, way time-barred. Concurrence: But, since you asked, your trespass thing is also just wrong.
  • And in en banc news, the First Circuit will reconsider its (2018, unpublished) decision granting qualified immunity to Massachusetts prison officials who allegedly kept an inmate in solitary confinement for 611 days without adequate justification or meaningful review.
  • And in more en banc news, the Eleventh Circuit will reconsider its decision allowing a lawsuit to go forward against Martin County, Fla. officers who arrested and jailed a man named David Sosa for three days even though he told them they were after a different man named David Sosa (which he knew because he’d previously been mistaken for the wanted Sosa).

The Institute for Justice is currently recruiting our next class of Litigation Fellows to join us in August 2023. We are looking for passionate and entrepreneurial attorneys with 0-2 years of experience to join our headquarters office inArlington, Va. This Fellowship is IJ’s preferred path for recent graduates or post-clerkship candidates with less than two years of experience. Upon completion, Fellows are considered for permanent employment. Outside the courtroom, Fellows have the opportunity to do media writing and appearances, public speaking, grassroots activism and direct advocacy to policymakers and legislators. Throughout the two-year fellowship, Fellows benefit from mentorship opportunities, expert media training, and a supportive and collegial legal work culture. Interviews and offers will be on a rolling basis. For more information, visit www.ij.org/jobs.

The post Short Circuit: A Roundup of Recent Federal Court Decisions appeared first on Reason.com.

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Shocking Consumer Credit Numbers: US Credit Card Debt Soars Most On Record With Savings Long Gone

Shocking Consumer Credit Numbers: US Credit Card Debt Soars Most On Record With Savings Long Gone

While it is traditionally viewed as a B-grade indicator, the November consumer credit report from the Federal Reserve was an absolute stunner and confirmed what we have been saying for month: any excess savings accumulated by the US middle class are long gone, and in their place Americans have unleashed a credit-card fueled spending spree.

Here are the shocking numbers: in November, consumer credit exploded by a whopping $40 billion, double the expected $20 billion print, more than double the $16 billion October number, and the highest on record!

And while non-revolving credit (student and car loans) jumped by a solid, if not necessarily remarkable $20 billion, this was only the 7th biggest increase for the series in record…

… the real stunner was revolving, or credit card debt, which more than tripled in November, soaring to $19.8 billion from $6.6 billion in October, by far the highest such print on record.

While this unprecedented rush to buy everything on credit ahead of and during the Thanksgivingholiday should not come as much of a surprise, after all we have repeatedly shown that for the middle class any “excess savings” are now gone, long gone…

… the fact is that most economists – such as those at Goldman Sachs – anticipate that continued spending of savings is what will keep the US economy levitating in 2022. Unfortunately, as today’s consumer credit numbers clearly demonstrate, any savings that US middle class households may have had courtesy of stimmies, are now gone. The implications are profound: any model that projected that US spending will be fueled by “savings” can now be trashed. And since this is most of them, the consequences are dire as they confirm – once again – that the Fed is tapering, QTing and hiking right into a recession.

Tyler Durden
Fri, 01/07/2022 – 15:18

via ZeroHedge News https://ift.tt/3HNjHnQ Tyler Durden

“Retiring Early” Is The New American Dream: Why This Is A Problem

“Retiring Early” Is The New American Dream: Why This Is A Problem

While today’s jobs report showed another striking drop in the unemployment rate (which clearly had a political mandate, so Joe Biden could claim it was the lowest rate achieved in the first year of any president), the participation rate remained stubbornly lower, and far below pre-covid levels.

One possible explanation for the sticky participation rate is that many more Americans – boomers and Gen-Xers – are retiring earlier than expected, a shift facilitated by covid and higher asset prices.

Picking up on this tangent, in his chart of the day, Deutsche Bank’s Jim Reid shows that the expected likelihood of retiring early is now the highest on record and for the first time, the average American worker believes they are more likely than not to retire by the age of 62.

This, as another DB strategist, Robin Winkler notes, “is a problem.”

The reason why, put simply, is that earlier retirement requires a larger nest egg. In the last two years households propped up their nest eggs with income not spent during lockdowns and with cash handouts from government. This goes a long way toward explaining why household consumption failed to go as “gangbusters” this year as many expected, with excess savings instead being channelled into safe assets such as US Treasuries and, of course, meme stonks.

As Winkler notes, “this was hardly surprising” and does not even take a massive shift in preferences for households to squirrel away large but one-off windfalls; there is plenty of evidence in empirical economics that households have always done so.

The much more difficult question is how households will go about financing early retirement plans now that the windfalls are becoming less plentiful. If they are serious about it, households will have to resort to the old-fashioned way of financing early retirement: reducing  consumption and saving more out of their actual work income. Absent continued windfalls, households must be prepared to spend less now if they plan to reduce their lifetime earnings but also want to smooth consumption levels as much as possible.

The most likely outcome is that saving more out of work income will prove too arduous for many households planning for early retirement, and they will simply shelve their plans. Perhaps early retirement was just a fancy idea fuelled by helicopter money, rather than a serious change in lifetime plans. But, as Winkler cautions, he would not discount the possibility that Western societies have seen a genuine if marginal shift in preferences from consumption toward leisure, with plans of early retirement being just one manifestation.

If so, he concludes, “new American Dream adds to the risk of the economy slipping back into secular stagnation.”

Tyler Durden
Fri, 01/07/2022 – 15:00

via ZeroHedge News https://ift.tt/3qWShW7 Tyler Durden

Justice Sotomayor Exaggerated the Number of Severe COVID-19 Cases Among Children


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The Supreme Court heard oral arguments Friday on whether to prevent the Biden administration’s vaccine mandate for private workplaces from going into effect. As expected, the right-leaning justices seemed skeptical that the Occupational Safety and Health Administration (OSHA) had the authority to craft such a regulation without new input from Congress, whereas the three liberal justices appeared to believe the mandate was necessary given the public health emergency posed by COVID-19.

Associate Justice Sonia Sotomayor was particularly adamant that the surging omicron variant wave represents a real crisis. In discussing the issue, she significantly exaggerated the threat of COVID-19 to children.

“Omicron is as deadly as delta and causes as much serious disease in the unvaccinated as delta did,” she said. “The numbers—look at the hospitalization rates going up. We have more infected people today than we did a year ago in January. We have hospitals that are almost at full capacity with people severely ill on ventilators. We have over 100,000 children, which we’ve never had before, in serious condition, and many on ventilators.”

If by serious condition, Sotomayor meant hospitalized, then her claim is false. There are not 100,000 children currently hospitalized with COVID-19. In fact, if you tallied up all the children admitted to the hospital for COVID-19 since August 2020, you would still not find 100,000 of them. According to the Centers for Disease Control and Prevention (CDC), hospitals have admitted about 82,000 COVID-19 patients under the age of 18 in that time period. The current seven-day average for this age group is 766 hospitalizations.

The overwhelming majority of children who contract COVID-19 experience only mild disease. The disease’s age skew is so great that even unvaccinated young people are at less risk than elderly people who are vaccinated. Most kids admitted to the hospital for COVID-19 have underlying health conditions—particularly obesity.

Sotomayor’s behavior suggests she is perhaps the most COVID-cautious judge. She is the only one of the nine who always wears her mask inside the courtroom, and she opted to participate in today’s oral arguments virtually, from her private chambers.

That’s her prerogative, of course. But if she is trying to justify President Joe Biden’s far-reaching and unprecedented vaccine mandate on the grounds that the disease is uniquely dangerous to children, then she should demonstrate a more accurate recitation of the statistics.

The post Justice Sotomayor Exaggerated the Number of Severe COVID-19 Cases Among Children appeared first on Reason.com.

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Citi To Fire All Unvaxx’d Unless They Comply With Mandate By Jan 14

Citi To Fire All Unvaxx’d Unless They Comply With Mandate By Jan 14

Citigroup has just become the first Wall Street megabank to give the anti-vaxxers among its 70K employees an ultimatum: either get vaccinated (and turn over the appropriate proper documentation), or find somewhere else to work.

As Wall Street banks struggle to find a strategy to bring workers back to the office without putting them at risk of getting COVID, the bank has decided that Citi employees who don’t comply with this mandate by Jan. 14 will be placed on unpaid leave, and their last day of employment will come at the end of the month, according to a message to Citigroup staff seen by Bloomberg.

This is by far the most restrictive requirement among Wall Street firms. But whether or not it will help the financial services industry bring workers back to the office more quickly remains to be seen.

On top of this, Citi is holding bonus payments over workers’ heads, saying that any employees who refuse the vaccine also won’t receive bonus payments for 2021 unless they sign a legal document giving up their right to sue Citigroup, presumably for wrongful termination since the legality of employer vaccine mandates is still being chewed over by SCOTUS.

Workers who are forced out by the vaccination policy can apply for other jobs at Citi in the future, but they shouldn’t bother if they don’t “see the light” and get vaccinated.

“You are welcome to apply for other roles at Citi in the future as long as you are compliant with Citi’s vaccination policy,” the company said in the memo.

According to Bloomberg, more than 90% of Citigroup’s staffers in the US have already been vaccinated. Any workers who haven’t gotten their shots are welcome to apply for religious or medical exemptions. Although it’s not clear what those applying for an exemption will do during the period between the start of the vaccine mandate, and whenever Citi finishes analyzing all the applications for an exemption.

Unsurprisingly, Citi is already facing public backlash for its decision to push out anti-vaxxers. One Twitter user questioned if Citi would take responsibility for any vaccine-induced medical issues (like the ‘almost harmless’ inflammation of the heart that has been associated with mRNA vaccines and younger users).

And what’s next? Will Citibank extend this mandate to its vaccinated customers?

One Citi worker complained on LinkedIn that this policy feels like a huge “overreach” since most of his direct reports don’t work in the same state as him.

“I’ve been sitting at home for two years now, I rarely go to the office, my direct reports are states away — this felt like a huge overreach,” said George Pagano, who spent five years in Citigroup’s operations and technology division before departing in November due to the mandate.

“When it comes to promoting the company at the expense of having to threaten to fire people the week after Christmas, it just seemed to be a bit too much.”

Finally, Citi is imposing its mandate as constitutionality of vaccine mandates is still debatable. As one source told Bloomberg, most companies are waiting to see how SCOTUS rules.

“It’s extremely onerous for employers,” Paul said, noting challenges in obtaining tests and tracking the data.

“Because of these burdens, there are a lot of employers that are just waiting to see what the Supreme Court does before they go ahead and roll out their plans.”

While Citi’s office workers must adhere to the Jan. 14 deadline, workers in the company’s office branches will have a little more leeway. To try and make the mandate more palatable, Citi has taken measures including bringing in medical experts to educate staff, holding town halls with human-resources leaders and handing out prizes for vaccinated workers. It also offered paid time off for workers hoping to get the shot.

Earlier this week, Goldman Sachs became the latest Wall Street megabank to abandon its plans to return employees to its offices.

Citi has already faced legal challenges over its vaccine mandate, which it first announced back in November after President Biden called on corporations to coerce their workers into getting the jabs. Of course, the rate of vaccination will differ dramatically by state, as many workers in New York are already facing pressure from the government to get the vaccines, while workers in Florida and Texas have been afforded much more leniency.

Unfortunately, the world has learned over the last year that the vaccines aren’t nearly as effective as Pfizer and Moderna (and President Biden) originally led the public to believe. So hopefully whoever came up with this idea at Citi isn’t disappointed when it has no impact on the number of workers afflicted by virus.

Tyler Durden
Fri, 01/07/2022 – 14:40

via ZeroHedge News https://ift.tt/3q3n7gd Tyler Durden

Justice Sotomayor Exaggerated the Number of Severe COVID-19 Cases Among Children


spnphotosten144697

The Supreme Court heard oral arguments Friday on whether to prevent the Biden administration’s vaccine mandate for private workplaces from going into effect. As expected, the right-leaning justices seemed skeptical that the Occupational Safety and Health Administration (OSHA) had the authority to craft such a regulation without new input from Congress, whereas the three liberal justices appeared to believe the mandate was necessary given the public health emergency posed by COVID-19.

Associate Justice Sonia Sotomayor was particularly adamant that the surging omicron variant wave represents a real crisis. In discussing the issue, she significantly exaggerated the threat of COVID-19 to children.

“Omicron is as deadly as delta and causes as much serious disease in the unvaccinated as delta did,” she said. “The numbers—look at the hospitalization rates going up. We have more infected people today than we did a year ago in January. We have hospitals that are almost at full capacity with people severely ill on ventilators. We have over 100,000 children, which we’ve never had before, in serious condition, and many on ventilators.”

If by serious condition, Sotomayor meant hospitalized, then her claim is false. There are not 100,000 children currently hospitalized with COVID-19. In fact, if you tallied up all the children admitted to the hospital for COVID-19 since August 2020, you would still not find 100,000 of them. According to the Centers for Disease Control and Prevention (CDC), hospitals have admitted about 82,000 COVID-19 patients under the age of 18 in that time period. The current seven-day average for this age group is 766 hospitalizations.

The overwhelming majority of children who contract COVID-19 experience only mild disease. The disease’s age skew is so great that even unvaccinated young people are at less risk than elderly people who are vaccinated. Most kids admitted to the hospital for COVID-19 have underlying health conditions—particularly obesity.

Sotomayor’s behavior suggests she is perhaps the most COVID-cautious judge. She is the only one of the nine who always wears her mask inside the courtroom, and she opted to participate in today’s oral arguments virtually, from her private chambers.

That’s her prerogative, of course. But if she is trying to justify President Joe Biden’s far-reaching and unprecedented vaccine mandate on the grounds that the disease is uniquely dangerous to children, then she should demonstrate a more accurate recitation of the statistics.

The post Justice Sotomayor Exaggerated the Number of Severe COVID-19 Cases Among Children appeared first on Reason.com.

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