June 2022 – Page 28

Conservatives Embrace Anti-discrimination Principles

In the twentieth century, anti-discrimination law was largely pioneered by the political left. What started as a campaign to restrict racial discrimination gradually expanded to other categories, such as sex discrimination, discrimination against people with disabilities, discrimination based on sexual orientation, and so on. By and large, these expansions were advocated by left-liberals, and often opposed by conservatives, or at least viewed with suspicion by them.

More recently, however, the political right has tried to use anti-discrimination principles to its own advantage, in a wide range of policy areas. Walter Olson of the Cato Institute recently wrote an insightful piece on this subject:

[T]he Supreme Court yesterday ruled [in Carson v. Makin] that the state of Maine violated the Constitution when it excluded schools that engage in religious instruction from an otherwise generally available program of tuition assistance payments to parents….

It’s been widely observed that religious‐liberty litigators have been on a winning streak lately, but it is worth noting specifically how many of those cases have been won by framing each dispute in terms of anti‐discrimination principles. Masterpiece Cakeshop and Fulton v. Philadelphia come to mind, but also the Court’s string of rulings in favor of churches against local COVID restrictions on grounds that they were not treated as well as one or another secular institution.

To some extent this must reflect the simple truth that anti‐discrimination principles have become a ruling theme both in law and in public life generally, exceedingly hard to argue against. If you can successfully invoke them you’re well on the way to winning an argument.

Examples from the progressive side are legion. But conservatives too are now apt to couch gripes about, say, social media moderation in terms of discrimination. Companies with a no‐guns‐on‐premises rule are “discriminating” against gun‐owning employees, we’ve heard.

And so on. Why, it was asked, should cruise ship lines or nurse staffing agencies be permitted to engage in “discrimination” toward the unvaccinated?

As Walter notes, in addition to the well-known religious liberty cases hinging on government discrimination against religious people and institutions, conservatives have also sought to use the law to curb real or imagined discrimination against right-wing speakers on social media sites, gun owners, and the unvaccinated. The conservative campaign against affirmative action, of course, has long hinged on the argument that affirmative action policies unjustly and illegally discriminate against whites and Asians. But these other conservative uses of anti-discrimination principles emerged more recently, and represent a major expansion of the use of anti-discrimination theory by the political right.

I think some of the conservative “appropriations” of anti-discrimination theory are well-justified. For example, I very much support Carson v. Makin and other rulings barring government discrimination based on religion. My main complaint about the conservative approach to this issue is the double standard that leads them to turn a blind eye to religious discrimination in immigration policy, most obviously when it comes to Donald Trump’s anti-Muslim travel bans. The conservative case against affirmative action also has a lot of merit, particularly when it comes to the specious “diversity” rationale embraced by many universities, and many educational institutions’ discrimination against Asian students.

On the other hand, I am very much opposed to conservative efforts to force unwilling private property owners to allow guns on their land (see also here), and to the conservative campaign to force social media firms to host speech they disapprove of. The former violates the constitutional rights of property owners, and the latter is a menace to freedom of speech. Similarly, I think vaccination mandates are entirely justified in some situations, and that – at the very least – private institutions should be free to impose vaccination requirements as a condition of employment or of entry onto their land.

But whether justifiably or not, it is clear that anti-discrimination principles are no longer a preserve of the left. Conservatives have taken them up with a vengeance!

One interesting question is how far will this process go? Will conservatives follow liberals in expanding to anti-discrimination ideas to new categories? The attempts to add gun owners and the unvaccinated to the list of protected groups are already steps in that direction. Will the right also try to add other groups to the list?

In the 1960s and 70s, the left famously moved from promoting traditional nondiscrimination, to advocating affirmative action for historically discriminated against minorities. The argument was that affirmative action was essential to remedy past discrimination and to promote diversity in various institutions. Will conservatives imitate this innovation?

It’s not hard to imagine how they might do so. Consider the following argument:

University X has long discriminated against conservatives. Given this history of institutionalized exclusion, formal equality is not enough to overcome the entrenched legacy of bias. In order to get beyond ideological discrimination, we must first take account of ideology [this, of course, is an adaptation of Justice Blackmun’s famous statement that “In order to get beyond racism, we must first take account of race”]. Thus, we must have affirmative action in hiring for conservative professors, and affirmative action in admissions for conservative students. It can be phased out only after we have a “critical mass” of conservatives large enough to ensure that fellow conservatives feel welcome on campus, and other students are exposed to their distinctive perspectives.

This kind of argument can also be applied to the exclusion of gun owners, evangelical Christians, and other groups associated with the political right, at various institutions. Right-wing adoption of affirmative action for their preferred groups would be in serious tension with their position on racial and gender affirmative action. Perhaps that tension will preclude any such move. On the other hand, logical consistency is far from a high priority for political movements these days.

The right could also potentially adopt “disparate impact” theory, the idea that seemingly neutral practices are discriminatory because they disproportionately affect a particular group. For example, many on the left argue that the use of standardized tests in university admissions should be curtailed, because some minority groups score lower, on average, than whites. Conservatives could similarly argue that some seemingly neutral policies must be restricted because they disproportionately affect evangelical Christians, gun owners, Republicans, and so on.

While expansions of anti-discrimination principles are sometimes justified, Walter Olson right worries that too great an emphasis on anti-discrimination can have negative effects:

[S]omething is often lost in the pressure to re‐couch claims as equality claims. Sometimes what’s really on our mind is something else — individual liberty, rights of self‐defense or bodily integrity, fair process, institutions that work.

In the religious freedom context, there is a strong logic to the idea that the Free Exercise Clause implies a robust principle that churches and their institutions may not be singled out for worse treatment as against otherwise comparable entities. But that’s just one component of free exercise; there have to be others…. [P]arents’ right to direct the religious upbringing of their children is a basic component of free exercise encroached upon by the Maine law. To take a different example, the Court has recognized in the Hosanna‐Tabor line of cases that free exercise requires the state to respect churches’ internal autonomy, quite aside from equality concerns about whether it treats secular institutions the same way.

Maybe churchgoers want freedom of worship for its own sake, not because they want to ensure churches are treated at least as well as drugstores in COVID regulations. Maybe fairness and benefit to kids are even better arguments for school choice in Maine than equality! But — in today’s climate of jurisprudence — we may not get a chance to find out any time soon.

I would add that one key limitation of anti-discrimination principles is that a violation of them can usually be remedied by “leveling down.” If it is unjust that some benefit or right is only available to Group X, but not Groups Y and Z, we can fix that by taking it away from X! In the wake of Carson v. Makin, Maine could comply with the Supreme Court’s ruling simply by terminating vouchers for all private schools, whether religious or not.

That approach is fine when it comes to programs that aren’t important, or shouldn’t exist in the first place. But it’s problematic if what’s at stake is some vital right. In that event, the right thing to do is to “level up” by making the benefit or right available to everyone. In my view, this is the only just solution to the problem of racial and ethnic discrimination in immigration and refugee policy. But anti-discrimination principles can’t get us there by themselves. Indeed, if we assume that discrimination is the only wrong at issue, “leveling down” will often look like an attractive option, even if it might actually exacerbate the wrong more than alleviate it.

Despite such potential downsides, the conservative embrace of anti-discrimination is unlikely to stop anytime soon. Sometimes it has good effects, and other times not. It will be interesting to see how far it will go – and how progressives react to it.

The post Conservatives Embrace Anti-discrimination Principles appeared first on Reason.com.

from Latest https://ift.tt/0N1f8Wi
via IFTTT

Conservatives Embrace Anti-discrimination Principles

[T]he Supreme Court yesterday ruled [in Carson v. Makin] that the state of Maine violated the Constitution when it excluded schools that engage in religious instruction from an otherwise generally available program of tuition assistance payments to parents….

It’s been widely observed that religious‐liberty litigators have been on a winning streak lately, but it is worth noting specifically how many of those cases have been won by framing each dispute in terms of anti‐discrimination principles. Masterpiece Cakeshop and Fulton v. Philadelphia come to mind, but also the Court’s string of rulings in favor of churches against local COVID restrictions on grounds that they were not treated as well as one or another secular institution.

To some extent this must reflect the simple truth that anti‐discrimination principles have become a ruling theme both in law and in public life generally, exceedingly hard to argue against. If you can successfully invoke them you’re well on the way to winning an argument.

Examples from the progressive side are legion. But conservatives too are now apt to couch gripes about, say, social media moderation in terms of discrimination. Companies with a no‐guns‐on‐premises rule are “discriminating” against gun‐owning employees, we’ve heard.

And so on. Why, it was asked, should cruise ship lines or nurse staffing agencies be permitted to engage in “discrimination” toward the unvaccinated?

But whether justifiably or not, it is clear that anti-discrimination principles are no longer a preserve of the left. Conservatives have taken them up with a vengeance!

It’s not hard to imagine how they might do so. Consider the following argument:

University X has long discriminated against conservatives. Given this history of institutionalized exclusion, formal equality is not enough to overcome the entrenched legacy of bias. In order to get beyond ideological discrimination, we must first take account of ideology [this, of course, is an adaptation of Justice Blackmun’s famous statement that “In order to get beyond racism, we must first take account of race”]. Thus, we must have affirmative action in hiring for conservative professors, and affirmative action in admissions for conservative students. It can be phased out only after we have a “critical mass” of conservatives large enough to ensure that fellow conservatives feel welcome on campus, and other students are exposed to their distinctive perspectives.

While expansions of anti-discrimination principles are sometimes justified, Walter Olson right worries that too great an emphasis on anti-discrimination can have negative effects:

[S]omething is often lost in the pressure to re‐couch claims as equality claims. Sometimes what’s really on our mind is something else — individual liberty, rights of self‐defense or bodily integrity, fair process, institutions that work.

In the religious freedom context, there is a strong logic to the idea that the Free Exercise Clause implies a robust principle that churches and their institutions may not be singled out for worse treatment as against otherwise comparable entities. But that’s just one component of free exercise; there have to be others…. [P]arents’ right to direct the religious upbringing of their children is a basic component of free exercise encroached upon by the Maine law. To take a different example, the Court has recognized in the Hosanna‐Tabor line of cases that free exercise requires the state to respect churches’ internal autonomy, quite aside from equality concerns about whether it treats secular institutions the same way.

Maybe churchgoers want freedom of worship for its own sake, not because they want to ensure churches are treated at least as well as drugstores in COVID regulations. Maybe fairness and benefit to kids are even better arguments for school choice in Maine than equality! But — in today’s climate of jurisprudence — we may not get a chance to find out any time soon.

The post Conservatives Embrace Anti-discrimination Principles appeared first on Reason.com.

from Latest https://ift.tt/0N1f8Wi
via IFTTT

Nomura: Everyone Is Waiting For This “Final” Shoe To Drop Before The All-Clear Signal

Having come back from a brief vacation, Nomura’s cross-asset guru, Charlie McElligott looks back at last week’s action and finds that just as we observed recently, “bad news was good news” again, as markets turned focus from “high inflation” to “deteriorating growth”, manifesting in a very significant re-pricing of “hard-landing” odds from perceived “CB policy-error >> Recession” meme (more evidence, as per global PMIs joining the “wrong way” growth data parade) which then dictated a powerful “reversal blast” of monetization in prior “trend trades” (a rally in heavily-shorted Bonds and Equities versus a selloff in Commodities and USD “longs”). As a result, markets removed a whopping 1.5 hikes for this Fed cycle, and pulling-forward the “end of Fed tightening” by as early as 4Q22 / 1Q23 (FFZ2FFH3 shows removal of 32.5bps of implied Fed hiking over the past two weeks alone, with the market now expecting Fed cuts next year off the back of the economic slowdown (as we described in detail in “Fed Rate-Hikes To End This Year, Followed By 3% Of Rate-Cuts & QE“).

This, as McElligott notes, meant big shocks across trend trades, with “winners” blasted lower and “losers / shorts” powerfully squeezed higher, and proceeds to highlight the following unique feedback loop:

This “risk of a Recession” hammered Commodities and Inflation Expectations (e.g. Breakevens continuing their recent collapse off highs… ->
Which lowered currently perceived Inflationary pressures… ->
Which is viewed as allowing the Fed to be less aggressive… ->
Which means we “cut the left tail” of a hard-landing recession!

Said another way, markets “leapt” at the opportunity provided by weakening growth, lower inflation expectations and collapsing commodities momentum to “anticipate the anticipators” and jump the “dovish” gun—again trying to “call the bluff” of Central Bankers who remain overly sensitive to a “growth > inflation” prioritization / reaction-function conditioning.

McElligott next notes that, beyond these constructive macro “qualitative” tailwinds for Equities, we also saw

Big covering of grossed-up shorts that led to a “net-up” of exposure, while the Spot rally saw Puts hammered and a thus, a massive amount of Short Delta hedge to unwind;
Street feedback continues to indicate monster corp buyback flows ahead of the “blackout” (75% of SPX mkt cap in blackout by july 4th);
Expectations of robust positive Equities rebal flows ($30BN) into Month / Qtr–end; and
The big quarterly Put Spread Collar roll, where the low strike of the PS removed mkt downside and suppressed Vol on our worst recent levels, where now, there is a lumpy amount of Vega sold and Delta bot as we approach Jun30—hence the “fear of the right tail” rally continues to trump “crash,” as there still isn’t a lot of positioning on to hedge.

With that in mind, the market now awaits the commencement of the much-discussed negative earnings revision “clearing” event, as the “final” shoe to drop following what the YTD drawdown that has been almost entirely due to the Rates impact on the multiple.

Here, echoing Morgan Stanley, Bank of America (and even Goldman), McElligott notes that a flush down to 3300-3400 is the perceived “all-clear” on the valuation case for Equities, with the whole world seemingly bid “out loud” down there for size, which means it either

doesn’t happen and we don’t trade low enough, or conversely,
we do trade down there, but the supposed size demand doesn’t materialize, and we get the puke through 3k.

In the meantime and after the “trend trade” reversal shocks of last week, yesterday saw the resumption of the “recession trade” in US Equities: 1) Energy 2) Utilities 3) Healthcare 4) Staples, which tells you that the said economic contraction concerns are driving the ongoing “Defensive” / “Low Risk” / “Quality” posture.

Fixed-income also again reversed to prior footing and is weakening with ongoing volatile gaps, partially due to Energy stabilization as China reduces quarantine times in half (one step closer to full re-open) and Ukraine / Russia “calm” narrative seen over the past week and half looks increasingly iffy.

Yet, as Charlie notes, at the same time, we see more signs of CB indecisiveness and noting their seeming “perpetually asymmetric conditioning” as it relates to “growth” concerns remaining tantamount over all others “scar tissue,” as old habits die hard. The latest case in point: ECB’s Lagarde from Sintra this morning, “who is yet-again confusing and vacillating with almost dovish messaging, which comes just weeks after her and the council’s hawkish pivot!”

Charlie here hands over the mic to his Nomura colleague Marco Brancolini who captures the latest absurdity, which only again creates confusion and front-end rates volatility, with CB’ers kowtowing to growth and market concerns, despite their inflation disaster sitting at the root of those issues:

Lagarde is flip-flopping, signalling a resurgent concern for growth. The focus on “optionality” will leave the front end unanchored and highly volatile. Her words appear to suggest that only Sep is data-dependent, but it will be hard to receive July anyway until a week before the meeting, as headlines and data can push the market around.

Confusingly, after the June pivot, Lagarde’s speech hails back to the framework of the May blog, noting that “in this environment, it is imperative for policymakers, within their respective mandates, to address the risks to the economic outlook”. I am not sure this is a u-turn in framework: there is a high chance that she may be simply trying to reassure markets after last week’s chatter of recession. I still think the Council will give primacy to inflation over growth, even at the cost of ending up with a recession.

The “optionality principle” is spelt out: “If the inflation outlook does not improve, we will have sufficient information to move faster. This commitment is, however, data dependent.” My understanding from the transcript is that such data dependency, however, only applies to September – in contradiction to what Kazaks told Econostream. July is at 32bp – as it’s been the case all year, it is hard to trade ECB dates on a fundamental basis until a week or ten days before the meeting, and it will be especially hard to stay received into this week’s inflation data. I will be happy to receive July ECB from the 10th onwards, not earlier.

Lagarde emphasised again “gradualism” and “optionality” – so expect limited visibility beyond the second meeting, as the ECB will remain data-dependent. The trigger for more aggressive tightening action are “higher inflation threatening to de-anchor inflation expectations, or signs of a more permanent loss of economic potential that limits resource availability”.

The ECB already pencils in “wage growth above 4% in 2022 and 2023 and at 3.7% in 2024” – this is a level compatible with inflation higher than 2%, so clearly wage data will be front and centre when we talk about ECB data dependency.

This, as McElligott notes, is the problem: you have to hold the line and see the hikes through now…otherwise, reflexive markets front-run this indecisiveness and ease financial conditions, which is counter-productive to inflation breaking efforts.

We all get the joke: Central Banks can only pull the “demand” lever and attempt to weaken inflation via labor mkt impact on consumption, unable to address the supply-chain issues and both structural and idiosyncratic energy / commod market dynamics…hence the never-ending stream of memes:

But at the end of the day, it’s the inflation volatility which will keep the front-end unstable and behind cross-asset moves…

… as event-weightings around monthly data (and reactive CB’s thereafter) keep us lunging:

Inflation will continue to surprise in its “stickiness” and strength over the upcoming months, particularly as it moves into “Services”
Cleveland Fed Inflation Nowcast currently projecting fresh highs for CPI YoY
“High inflation means volatile inflation” and “inflation tends to trend” as local headwinds for sentiment, positioning and risk management

Concluding his recap, Charlie writes that for now “this ongoing tilt in ‘upside’ inflation data, and persistently reactive Central Bank “hawkish impulse” thereafter, will continue to reinforce negative impact in the rate / credit –sensitive parts of the economy…effectively “self-fulfilling” a recession”…

… as consumer sentiment plummets and broad activity loses momentum.

Which of course, is the best case scenario for stocks because as Rabobank noted earlier, the market endlessly wonders how long until we cut rates and restart QE again. The answer: a recession should do it.

Tyler Durden
Tue, 06/28/2022 – 13:25

via ZeroHedge News https://ift.tt/WtDEHYw Tyler Durden

Ugly, Tailing 7Y Auction, But It Could Have Been Worse

After one ugly 2Y auction and one catastrophic 5Y sale on Monday, today the week’s truncated auction schedule saw the last coupon issuance for the week when the Treasury sold $40BN in 7Y paper. And while the auction was not as bad as the infamous Feb 21 “failed” 7Y auction but it sure was ugly.

The high yield of 3.280% was just over 50bps higher compared to the 2.777% in the May auction. and was the highest since Feb 2010 when the auction printed at 3.37%. More importantly, the auction also tailed the When Issued 3.259% by 2.1bps, the biggest tail of 2022 (Dec 2021 was 2.3bps).

The bid to cover dropped from 2.690 to 2.481, the lowest since April, but was above the six-auction average of 2.41.

The internals were also ugly, if not dire, with Indirects sliding from 77.9% to 61.9%, the lowest since March and below the 64.9% recent average. And with Directs rising to 20.4%, the most since March, Dealers were left holding 17.7%, up from the record 6.4% in May.

Overall, an ugly auction, but not catastrophic and certainly stronger than yesterday’s 5Y. That said, a few weeks of QT, a few more rate hikes and we won’t be surprised if we have an actual failed belly-buster auction.

Tyler Durden
Tue, 06/28/2022 – 13:19

via ZeroHedge News https://ift.tt/vrBM5dj Tyler Durden

“Justice Alito Doesn’t Live in N.J. Anymore, so Stop Sending Threatening Mail to His Old Home, Cops Say”

So reports NJ.com (Chris Sheldon), quoting this Facebook post from the West Caldwell Police Department:

The West Caldwell Police Department has responded to multiple calls at a residence formerly owned by Justice Samuel Alito. Erroneous information was circulating on the internet that indicated that Justice Alito still resides in West Caldwell, and
individuals have been sending harassing packages to the current resident.

Justice Alito moved out of West Caldwell Just after being confirmed to the US Supreme Court, 15 years ago in 2007. The current homeowner has no affiliation with Justice Alito and deserves to live in peace in their home free from harassment, regardless
of anyone’s political beliefs.

All incidents will be investigated and those responsible will be charged and prosecuted.

Please like and share this post to hopefully put an end to this activity.

Thanks to Howard Bashman (How Appealing) for the pointer.

The post "Justice Alito Doesn't Live in N.J. Anymore, so Stop Sending Threatening Mail to His Old Home, Cops Say" appeared first on Reason.com.

from Latest https://ift.tt/osmHX2e
via IFTTT

The Kavanaugh Concurrence Is The New Kennedy Concurrence

For a generation, Justice Kennedy was the swing vote on the Supreme Court. In almost every major case, you could expect a concurrence by Justice Kennedy to moderate the holding. And they would always include the same message: I agree with the Court, but let me announce some limits that no one else agreed to. And invariably, the lower courts would treat those limitations as if they were controlling. Forget the Marks rule. Everyone follow the Kennedy rule.

Here are a smattering of those concurrences in cases large and small:

Trump v. Hawaii (2018): “I join the Court’s opinion in full. . . . In all events, it is appropriate to make this further observation.”
Pereira v. Sessions (2018): “I agree with the Court’s opinion and join it in full. This separate writing is to note my concern with the way in which the Court’s opinion in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. (1984), has come to be understood and applied.”
Burwell v. Hobby Lobby Stores (2014): “It seems to me appropriate, in joining the Court’s opinion, to add these few remarks.”
Arizona v. Inter Tribal Council of Arizona (2013): “The opinion for the Court insists on stating a proposition that, in my respectful view, is unnecessary for the proper disposition of the case and is incorrect in any event.”
Kiobel v. Royal Dutch Petroleum (2013): “The opinion for the Court is careful to leave open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute. In my view that is a proper disposition.”
Christian Legal Society v. Martinez (2010): “These observations are offered to support the analysis set forth in the opinion of the Court, which I join.”
U.S. v. Comstock (2010): “The Court is correct, in my view, to hold that the challenged portions of 18 U.S.C. § 4248 are necessary and proper exercises of congressional authority. . . . This separate writing serves two purposes.”
Summers v. Earth Island Institute (2009): “I join in full the opinion of the Court. . . . This case would present different considerations if Congress had sought to provide redress for a concrete injury ‘giv[ing] rise to a case or controversy where none existed before.'”
Parents Involved in Community Schools v. Seattle School Dist. No. 1 (2007): “I agree with THE CHIEF JUSTICE that we have jurisdiction to decide the cases before us and join Parts I and II of the Court’s opinion. I also join Parts III–A and III–C for reasons provided below. My views do not allow me to join the balance of the opinion by THE CHIEF JUSTICE, which seems to me to be inconsistent in both its approach and its implications with the history, meaning, and reach of the Equal Protection Clause.”
Hein v. Freedom from Religion Foundation (2007): “In my view the result reached in Flast is correct and should not be called into question. For the reasons set forth by Justice ALITO, however, Flast should not be extended to permit taxpayer standing in the instant matter. And I join his opinion in full.”
Randall v. Sorrell (2006): “Viewed within the legal universe we have ratified and helped create, the result the plurality reaches is correct; given my own skepticism regarding that system and its operation, however, it seems to me appropriate to concur only in the judgment.”
Rapanos v. U.S. (2006): “Although both the plurality opinion and the dissent by Justice STEVENS (hereinafter the dissent) discuss the background of these cases in some detail, a further discussion of the relevant statutes, regulations, and facts may clarify the analysis suggested here.”
Hudson v. Michigan (2006): “Two points should be underscored with respect to today’s decision. “
Kelo v. City of New London (2005): “I join the opinion for the Court and add these further observations.”
Lingle v. Chevron (2005): “This separate writing is to note that today’s decision does not foreclose the possibility that a regulation might be so arbitrary or irrational as to violate due process.”
Rumsfeld v. Padilla (2004): “Though I join the opinion of the Court, this separate opinion is added to state my understanding of how the statute should be interpreted in light of the Court’s holding.”
Rasul v. Bush (2004): “The Court is correct, in my view, to conclude that federal courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals held at the Guantanamo Bay Naval Base in Cuba. While I reach the same conclusion, my analysis follows a different course. “
Vieth v. Jubelirer (2004): “The Court is correct to refrain from directing this substantial intrusion into the Nation’s political life. While agreeing with the plurality that the complaint the appellants filed in the District Court must be dismissed, and while understanding that great caution is necessary when approaching this subject, I would not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases.”
Georgia v. Ashcroft (2003): “With these observations, I join the opinion of the Court.”
Republican Part of Minnesota v. White (2002): “So I join its opinion. I adhere to my view, however, that content-based speech restrictions that do not fall within any traditional exception should be invalidated without inquiry into narrow tailoring or compelling government interests.”
Clinton v. City of New York (1998): “With these observations, I join the opinion of the Court.”
U.S. Term Limits v. Thornton (1995): “I join the opinion of the Court.
The majority and dissenting opinions demonstrate the intricacy of the question whether or not the Qualifications Clauses are exclusive. In my view, however, it is well settled that the whole people of the United States asserted their political identity and unity of purpose when they created the federal system. “
U.S. v. Lopez (1995): “That history gives me some pause about today’s decision, but I join the Court’s opinion with these observations on what I conceive to be its necessary though limited holding.”

In 2018, Justice Kennedy was replaced by Justice Kavanuagh. And, in the process, the Kennedy Concurrence has been replaced by the Kavanuagh Concurrence. During Kavanaugh’s brief tenure, he has written many solo concurrences that purport to find limits on the majority opinion. By my count, Justice Kavanaugh often uses the same limiting language: underscore, emphasize, explain, add, and note.

Nielsen v. Preap (2019): “I write separately to emphasize the narrowness of the issue before us and, in particular, to emphasize what this case is not about.”
Bucklew v. Precythe (2019): “Under those precedents, I agree with the Court’s holding and join the Court’s opinion. I write to underscore the Court’s additional holding that the alternative method of execution need not be authorized under current state law—a legal issue that had been uncertain before today’s decision.”
American Legion v. American Humanist Association (2019): “I join the Court’s eloquent and persuasive opinion in full. I write separately to emphasize two points.”
County of Maui, Hawaii v. Hawaii Wildlife Fund (2020): “I join the Court’s opinion in full. I write separately to emphasize three points.”
New York State Rifle & Pistol Association v. City of New York (2020): “I agree with the per curiam opinion’s resolution of the procedural issues before us—namely, that petitioners’ claim for injunctive relief against New York City’s old rule is moot and that petitioners’ new claims should be addressed as appropriate in the first instance by the Court of Appeals and the District Court on remand.
I also agree with Justice ALITO’s general analysis of Heller and McDonald.”
Uzuegbunam v. Preczewski (2021): “I agree with the Court that, as a matter of history and precedent, a plaintiff’s request for nominal damages can satisfy the redressability requirement for Article III standing and can keep an otherwise moot case alive. I write separately simply to note that I agree with THE CHIEF JUSTICE and the Solicitor General that a defendant should be able to accept the entry of a judgment for nominal damages against it and thereby end the litigation without a resolution of the merits.”
CIC Services, LLC v. Internal Revenue Service (2021): “I join the Court’s opinion in full. I write separately to underscore what remains (and does not remain) of Alexander v. Americans United Inc. (1974), and Bob Jones Univ. v. Simon (1974), in the wake of the Court’s decision today.”
Caniglia v. Strom (2021): “I join the Court’s opinion in full. I write separately to underscore and elaborate on THE CHIEF JUSTICE’s point that the Court’s decision does not prevent police officers from taking reasonable steps to assist those who are inside a home and in need of aid.”
Cedar Point Nursery v. Hassid (2021): “I join the Court’s opinion, which carefully adheres to constitutional text, history, and precedent. I write separately to explain that, in my view, the Court’s precedent in NLRB v. Babcock & Wilcox (1956), also strongly supports today’s decision.”
Ramirez v. Collier (2022): “I join the Court’s opinion in full, and I write separately to add three points: one about the recent history of litigation involving religious advisors in execution rooms; a second about the difficulty of applying RLUIPA’s compelling interest and least restrictive means standards; and a third about state execution procedures going forward.”
New York State Rifle & Pistol Association, Inc. v. Bruen (2022): “I join the Court’s opinion, and I write separately to underscore two important points about the limits of the Court’s decision.”
Dobbs v. Jackson Women’s Health Organization (2022): “I write separately to explain my additional views about why Roe was wrongly decided, why Roe should be overruled at this time, and the future implications of today’s decision.”

In time, lower courts will seize upon the Kavanaugh opinions as the actual opinions of the Court. I will write about the final two concurrences in Bruen and Dobbs in another post.

The post The Kavanaugh Concurrence Is The New Kennedy Concurrence appeared first on Reason.com.

from Latest https://ift.tt/MahN4cH
via IFTTT

“Justice Alito Doesn’t Live in N.J. Anymore, so Stop Sending Threatening Mail to His Old Home, Cops Say”

So reports NJ.com (Chris Sheldon), quoting this Facebook post from the West Caldwell Police Department:

The West Caldwell Police Department has responded to multiple calls at a residence formerly owned by Justice Samuel Alito. Erroneous information was circulating on the internet that indicated that Justice Alito still resides in West Caldwell, and
individuals have been sending harassing packages to the current resident.

Justice Alito moved out of West Caldwell Just after being confirmed to the US Supreme Court, 15 years ago in 2007. The current homeowner has no affiliation with Justice Alito and deserves to live in peace in their home free from harassment, regardless
of anyone’s political beliefs.

All incidents will be investigated and those responsible will be charged and prosecuted.

Please like and share this post to hopefully put an end to this activity.

Thanks to Howard Bashman (How Appealing) for the pointer.

The post "Justice Alito Doesn't Live in N.J. Anymore, so Stop Sending Threatening Mail to His Old Home, Cops Say" appeared first on Reason.com.

from Latest https://ift.tt/osmHX2e
via IFTTT

The Kavanaugh Concurrence Is The New Kennedy Concurrence

Here are a smattering of those concurrences in cases large and small:

Trump v. Hawaii (2018): “I join the Court’s opinion in full. . . . In all events, it is appropriate to make this further observation.”
Pereira v. Sessions (2018): “I agree with the Court’s opinion and join it in full. This separate writing is to note my concern with the way in which the Court’s opinion in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. (1984), has come to be understood and applied.”
Burwell v. Hobby Lobby Stores (2014): “It seems to me appropriate, in joining the Court’s opinion, to add these few remarks.”
Arizona v. Inter Tribal Council of Arizona (2013): “The opinion for the Court insists on stating a proposition that, in my respectful view, is unnecessary for the proper disposition of the case and is incorrect in any event.”
Kiobel v. Royal Dutch Petroleum (2013): “The opinion for the Court is careful to leave open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute. In my view that is a proper disposition.”
Christian Legal Society v. Martinez (2010): “These observations are offered to support the analysis set forth in the opinion of the Court, which I join.”
U.S. v. Comstock (2010): “The Court is correct, in my view, to hold that the challenged portions of 18 U.S.C. § 4248 are necessary and proper exercises of congressional authority. . . . This separate writing serves two purposes.”
Summers v. Earth Island Institute (2009): “I join in full the opinion of the Court. . . . This case would present different considerations if Congress had sought to provide redress for a concrete injury ‘giv[ing] rise to a case or controversy where none existed before.'”
Parents Involved in Community Schools v. Seattle School Dist. No. 1 (2007): “I agree with THE CHIEF JUSTICE that we have jurisdiction to decide the cases before us and join Parts I and II of the Court’s opinion. I also join Parts III–A and III–C for reasons provided below. My views do not allow me to join the balance of the opinion by THE CHIEF JUSTICE, which seems to me to be inconsistent in both its approach and its implications with the history, meaning, and reach of the Equal Protection Clause.”
Hein v. Freedom from Religion Foundation (2007): “In my view the result reached in Flast is correct and should not be called into question. For the reasons set forth by Justice ALITO, however, Flast should not be extended to permit taxpayer standing in the instant matter. And I join his opinion in full.”
Randall v. Sorrell (2006): “Viewed within the legal universe we have ratified and helped create, the result the plurality reaches is correct; given my own skepticism regarding that system and its operation, however, it seems to me appropriate to concur only in the judgment.”
Rapanos v. U.S. (2006): “Although both the plurality opinion and the dissent by Justice STEVENS (hereinafter the dissent) discuss the background of these cases in some detail, a further discussion of the relevant statutes, regulations, and facts may clarify the analysis suggested here.”
Hudson v. Michigan (2006): “Two points should be underscored with respect to today’s decision. “
Kelo v. City of New London (2005): “I join the opinion for the Court and add these further observations.”
Lingle v. Chevron (2005): “This separate writing is to note that today’s decision does not foreclose the possibility that a regulation might be so arbitrary or irrational as to violate due process.”
Rumsfeld v. Padilla (2004): “Though I join the opinion of the Court, this separate opinion is added to state my understanding of how the statute should be interpreted in light of the Court’s holding.”
Rasul v. Bush (2004): “The Court is correct, in my view, to conclude that federal courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals held at the Guantanamo Bay Naval Base in Cuba. While I reach the same conclusion, my analysis follows a different course. “
Vieth v. Jubelirer (2004): “The Court is correct to refrain from directing this substantial intrusion into the Nation’s political life. While agreeing with the plurality that the complaint the appellants filed in the District Court must be dismissed, and while understanding that great caution is necessary when approaching this subject, I would not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases.”
Georgia v. Ashcroft (2003): “With these observations, I join the opinion of the Court.”
Republican Part of Minnesota v. White (2002): “So I join its opinion. I adhere to my view, however, that content-based speech restrictions that do not fall within any traditional exception should be invalidated without inquiry into narrow tailoring or compelling government interests.”
Clinton v. City of New York (1998): “With these observations, I join the opinion of the Court.”
U.S. Term Limits v. Thornton (1995): “I join the opinion of the Court.
The majority and dissenting opinions demonstrate the intricacy of the question whether or not the Qualifications Clauses are exclusive. In my view, however, it is well settled that the whole people of the United States asserted their political identity and unity of purpose when they created the federal system. “
U.S. v. Lopez (1995): “That history gives me some pause about today’s decision, but I join the Court’s opinion with these observations on what I conceive to be its necessary though limited holding.”

Nielsen v. Preap (2019): “I write separately to emphasize the narrowness of the issue before us and, in particular, to emphasize what this case is not about.”
Bucklew v. Precythe (2019): “Under those precedents, I agree with the Court’s holding and join the Court’s opinion. I write to underscore the Court’s additional holding that the alternative method of execution need not be authorized under current state law—a legal issue that had been uncertain before today’s decision.”
American Legion v. American Humanist Association (2019): “I join the Court’s eloquent and persuasive opinion in full. I write separately to emphasize two points.”
County of Maui, Hawaii v. Hawaii Wildlife Fund (2020): “I join the Court’s opinion in full. I write separately to emphasize three points.”
New York State Rifle & Pistol Association v. City of New York (2020): “I agree with the per curiam opinion’s resolution of the procedural issues before us—namely, that petitioners’ claim for injunctive relief against New York City’s old rule is moot and that petitioners’ new claims should be addressed as appropriate in the first instance by the Court of Appeals and the District Court on remand.
I also agree with Justice ALITO’s general analysis of Heller and McDonald.”
Uzuegbunam v. Preczewski (2021): “I agree with the Court that, as a matter of history and precedent, a plaintiff’s request for nominal damages can satisfy the redressability requirement for Article III standing and can keep an otherwise moot case alive. I write separately simply to note that I agree with THE CHIEF JUSTICE and the Solicitor General that a defendant should be able to accept the entry of a judgment for nominal damages against it and thereby end the litigation without a resolution of the merits.”
CIC Services, LLC v. Internal Revenue Service (2021): “I join the Court’s opinion in full. I write separately to underscore what remains (and does not remain) of Alexander v. Americans United Inc. (1974), and Bob Jones Univ. v. Simon (1974), in the wake of the Court’s decision today.”
Caniglia v. Strom (2021): “I join the Court’s opinion in full. I write separately to underscore and elaborate on THE CHIEF JUSTICE’s point that the Court’s decision does not prevent police officers from taking reasonable steps to assist those who are inside a home and in need of aid.”
Cedar Point Nursery v. Hassid (2021): “I join the Court’s opinion, which carefully adheres to constitutional text, history, and precedent. I write separately to explain that, in my view, the Court’s precedent in NLRB v. Babcock & Wilcox (1956), also strongly supports today’s decision.”
Ramirez v. Collier (2022): “I join the Court’s opinion in full, and I write separately to add three points: one about the recent history of litigation involving religious advisors in execution rooms; a second about the difficulty of applying RLUIPA’s compelling interest and least restrictive means standards; and a third about state execution procedures going forward.”
New York State Rifle & Pistol Association, Inc. v. Bruen (2022): “I join the Court’s opinion, and I write separately to underscore two important points about the limits of the Court’s decision.”
Dobbs v. Jackson Women’s Health Organization (2022): “I write separately to explain my additional views about why Roe was wrongly decided, why Roe should be overruled at this time, and the future implications of today’s decision.”

In time, lower courts will seize upon the Kavanaugh opinions as the actual opinions of the Court. I will write about the final two concurrences in Bruen and Dobbs in another post.

The post The Kavanaugh Concurrence Is The New Kennedy Concurrence appeared first on Reason.com.

from Latest https://ift.tt/MahN4cH
via IFTTT

The White House Needs To End Its Embarrassing, Petulant War On US Oil

Submitted by QTR’s Fringe Finance

As it relates to inflation, the Biden administration has publicly shot itself (and the middle class) in the foot and, rather than address their errors and admit wrongdoing, they have instead been unfairly using the oil and gas industry as a scapegoat for problems that the administration helped create.

Among the statements Biden and his cohorts have made over the last few months are:

“At a time of war – historically high refinery profit margins being passed directly onto American families are not acceptable” – President Biden, June 15, 2022
“This is not the time to sit on record profits, it’s time to step up for the good of your country” – President Biden, March 31
“The crunch that families are facing deserves immediate action. Your companies need to work with my Administration to bring forward concrete, near-term solutions that address the crisis” – President Biden, June 15, 2022
“Exxon made more money than god” – President Biden, June 10, 2022
“80% of Americans support a Windfall Profits Tax on Big Oil companies. These corporations are making billions in war-fueled profits while Americans struggle at the pump. We must crack down on Big Oil’s massive profits & reduce reliance on fossil fuels,” – Sen. Elizabeth Warren, April 24, 2022
“Russia’s war in Ukraine has caused gas prices to rise for Americans, but giant oil corporations like [Exxon] are making billions in record profits. We need a Windfall Profits Tax to tax big oil on their profits & we need to invest in clean energy too,” – Sen. Elizabeth Warren, April 7, 2022

But as CNBC astutely noted days ago:

“Refiners can’t just ramp up output, with utilization rates already above 90%.”

And part of the lack of infrastructure to produce more supply is a result of the left’s very own, incessant push for greener fuels:

“Additionally, some refiners are now being reconfigured to make alternate products like biofuel.”

I noted this past week on Twitter that the vilification simply doesn’t make sense. People on the left use petroleum-based products just like people on the right – and no one from government was concerning themselves with oil and gas in the slightest when the price of oil crashed in April 2020 and Exxon lost over $20 billion that year. There was no concern for the families who worked for Exxon and there was little chatter out of the White House at all.

Certainly, the government outrage about the effects of oil & gas on the middle class – when it meant financial struggles for an employer of 64,000 people – was missing in action. I guess no one really cared about those families…

On the contrary, the occasional headline that popped about oil in 2020 was usually someone dancing on the grave of the industry:

But all of a sudden, now that these companies are doing something “evil”, like turning a profit, they have once again become hellish juggernauts that must be stopped at all costs.

It’s so clear this isn’t just a leftist war about clean energy, it’s a war on capitalism and profitability. The left absolutely hates that oil companies make money. Biden recently complained they are “making more money than god” but failed to say they “lost more money than god” when they burned through $20 billion in 2020.

Leftists politicians believe these companies simply don’t deserve it. The left wants a state planned economy where they dictate which companies are virtuous enough for them to be the bearer of profits, regardless of how integral the products or services are to them in their daily lives.

And as we see, as these companies return back to profitability, all of a sudden it’s important to immediately denounce them. This is a war on capitalism.

Last week, what can only be described as an ongoing campaign of harassment and wholly misguided vilification of the oil and gas industry finally met some pushback in the form of CEOs who wrote to the Biden administration, defending their businesses and their industry.

Chevron CEO Mike Wirth noted that the company produced its highest volume of supply in its 143 year history in 2021 and that it was investing $10 billion to reduce emissions. He also wrote:

“Addressing this situation requires thoughtful action and a willingness to work together, not political rhetoric.”

“Chevron and its 37,000 employees work every day to help provide the world with the energy it demands and to lift up the lives of billions of people who rely on these supplies. Notwithstanding these efforts, your Administration has largely sought to criticize, and at times vilify, our industry. These actions are not beneficial to meeting the challenges we face and are not what the American people deserve.”

And Wirth is right. For the last decade, oil and gas has been the punching bag of the left, whether the topic has been climate change, the economy or inequality: the left has figured out a way to somehow make oil and gas the enemy – all while they enjoy the fruits of the energy and petroleum produced by these companies.

For those that don’t know how ubiquitous petroleum is, here’s a list of 140 common items that use petroleum hydrocarbons.

The list, in addition to oil and gas, includes items like shampoo, speakers, luggage, golf balls, dishes, hair curlers, house paint, surfboards, petroleum jelly, vitamin capsules, panty hose, shag rugs, ballpoint pens and upholstery.

And here’s a great diagram for the next time your activist friend puts their makeup on and preps for that big anti-fossil fuel rally:

Surely, nobody on the left screaming critiques of the industry uses these products, right?

Today’s article is free, but if you enjoy the content and have the means to support, I’d love to have you as a paid subscriber: Subscribe now

This vilification of the industry (and the hundreds of thousands of American families that it helps support) has been completely uncalled for and has gone on for far too long.

People on the left side of the aisle are beneficiaries of hydrocarbons and petroleum-based products just like the rest of the world is.

But the anti-energy rhetoric has been ratcheted up over the last six months while the current Presidential administration looks for someone to blame for skyrocketing oil prices.

The truth of the matter – as Jerome Powell himself confirmed last week – is that inflation had begun before Russia invaded Ukraine, but sanctions placed on Russian oil and gas exacerbated an energy imbalance that was already underway. This imbalance dovetailed from a demand spike, thanks to the Covid reopening, and limited supply, thanks to oil prices crashing in 2020 and OPEC being stingy with how much supply they allow into the market.

Instead of just acknowledging this seemingly innocuous reality of the situation and committing to the American people to help bring new supply online, the Biden administration – and its cohorts on the left – are playing the “blame game”, spinning up fictitious accusations about price gouging at the pump and unfair business practices, none of which can be proven or substantiated.

And while some of the blame for inflation in the country can be placed on the Trump administration – after all, Trump pushed hard for easy money policies from the Fed – the Biden administration has only served to exacerbate it, pushing for trillions more in new spending and entertaining horrifically inefficient ideas like the Green New Deal.

Every day, the Biden administration talks about how it wants to help the middle class – but this must not include the 7.5 million people that make their living from the energy industry.

Every day, the Biden administration talks about how it wants to lower energy prices – but this must not include tactics like bringing new domestic supply online.

And every day, the Biden administration talks about combating inflation, yet it continues to push grandiose spending plans.

The administration’s left hand literally doesn’t know what its right hand is doing. So what’s all this bitching, moaning and carrying on about oil for?

The solutions that the administration has come up with – namely, releasing oil from the strategic petroleum reserve and playing the blame game – are impotent and meaningless. They do almost nothing to address the problem on a long-term scale.

And so let me say clearly what oil and gas CEO’s failed to: it’s time to stop the charade.

If President Biden wanted to get serious about the energy crisis, he would go out of his way to incentivize new supply to come online in the United States and treat oil and gas companies with respect. New supply in the U.S. would prove to be a far better, longer-term solution. We could help cap prices and also reduce our dependence on foreign oil.

Yet, in what can only be described as a baffling display of hypocrisy, “Mr. Equality” Joe Biden would rather travel to the Middle East – you know, that group of countries where being gay is legally punishable by death and where journalists are murdered for saying the wrong thing – so he can grovel at their feet to bring more supply online.

These are the guys he’s begging for oil right now:

It really goes to show how all the lip service about equality and human rights truly means nothing to the left when it comes down to brass tacks. The idea of begging the Middle East for more oil, while publicly detesting our own energy infrastructure despite the fact that companies like Exxon are ahead of their net zero carbon emission goals, is reprehensible.

The energy crisis is partly an American-created problem. President Biden needs to pull his head out of his ass and realize that there is also an American made solution…

…if he could simply get over his disdain for capitalism and U.S. corporations.

—

Share this article, if you enjoyed.

Tyler Durden
Tue, 06/28/2022 – 13:05

via ZeroHedge News https://ift.tt/TEQRtD9 Tyler Durden

Japan Waters Down Its G7 Commitment Language To Zero Emission Vehicle Targets

While the U.S. government sits around shaming U.S.-based companies for not doing enough about (real or perceived) climate change threats, Japan appears to be in the midst of potentially making a dramatic shift in how it prioritizes its climate change goals.

In fact, this week it was reported that Japan was pushing to “remove a target for zero-emission vehicles from a G7 communique expected this week”, according to Reuters who cited a proposed draft.

The Japanese reference that was removed was for a “collective goal of at least 50% zero-emission vehicles by 2030”. It was replaced with the much less finite sounding target of “significantly increasing the sale, share and uptake of zero-emission light duty vehicles recognising the range of pathways that members are adopting to approach these goals”.

The change would “water down” existing language on climate change, the report says, as the Japanese auto industry continues to face criticism from environmentalists who claim it is moving to slow to adopt zero emission vehicles.

Clearly feeling the crunch of a government-led forced change for the entire industry, the head of Toyota reportedly lobbied the Japanese government last week to make clear that it “supported hybrid vehicles as much as zero-emission battery electrics”.

The country had also, separately, pushed for the removal of a requirement for all new car and van sales in G7 countries to be “zero emission vehicles” by 2035. The 2035 date was not included in the final statement, the report says, instead being replaced with the goal to achieve “”highly decarbonised road sector by 2030” by “significantly increasing” zero-emission vehicle sales.

Reuters reported that Japan had proposed the changes and it wasn’t clear whether they would be in the statements released this week.

Tyler Durden
Tue, 06/28/2022 – 12:45

via ZeroHedge News https://ift.tt/0zJxa8u Tyler Durden