Review: Is Prison for Rehabilitation or Punishment?


book cover of "What's Prison For?' by Bill Keller

The standard answer to the question posed by the title of Bill Keller’s new book, What’s Prison For?, cites four goals: punishment, deterrence, incapacitation, and rehabilitation. But as Keller shows, that last goal is typically treated as an afterthought in the United States.

Given that 95 percent of prisoners will eventually be released, Keller argues, policy makers should pay more attention to whether what happens behind bars increases or decreases former inmates’ chances of leading peaceful, productive lives when they get out.

In 2014, after spending nearly four decades at The New York Times, Keller became the founding editor in chief of The Marshall Project, a journalistic outlet focused on criminal justice. His book draws heavily on his colleagues’ work, along with his own research and interviews, to make the case that governments routinely squander the opportunity to improve the prospects of people they view as dangerous enough to lock up for years or decades.

The case for a stronger emphasis on rehabilitation rests on practical as well as humanitarian concerns. High recidivism rates are not surprising when life in prison features the same factors that drive crime: social isolation, pervasive powerlessness, and economic distress. The alternatives Keller considers include meaningful educational opportunities, “restorative justice” programs that aim to foster empathy and responsibility, and amenities that afford more dignity and privacy than U.S. prisons generally allow.

Such options, which often involve spending more taxpayer money, may seem like a hard sell for budget-conscious, law-and-order politicians. But a proper analysis has to take into account the current system’s enormous social and economic costs, including the preventable crimes that occur when rehabilitation gets short shrift.

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What Does The Yuanization Of The Russian Economy Mean For The Dollar?

What Does The Yuanization Of The Russian Economy Mean For The Dollar?

Authored by ‘The Jamestown Foundation’ via OilPrice.com,

  • Russian President Vladimir Putin is aiming to fully de-dollarize the Russian economy. 

  • Russia is aiming to funds in currencies of so-called “friendly countries,” such as the Chinese yuan.

  • Russian experts fear that, with 17 percent of foreign exchange reserves in yuan, the Kremlin will not be able to pull money promptly when needed, thereby becoming trapped by China.

On September 12, Russian President Vladimir Putin stated that, given mounting economic sanctions, full “de-dollarization” of the Russian economy is only a matter of time (RBC, September 12). Putin`s remark was preceded by a statement from Russian Deputy Finance Minister Alexey Moiseev, who argued that “Russia no longer needs the US dollar as a reserve currency.” Instead, Russia must accumulate funds in currencies of so-called “friendly countries,” such as the Chinese yuan, which is playing a key role in this regard (RBC, September 8). 

The idea of departing from the US dollar as a reserve currency is by no means new to Russia: It was first entertained in the 1990s. By 2018, Moscow had devised a “plan on the de-dollarization” of its economy. Prior to the outbreak of Russia`s war against Ukraine on February 24, Dmitry Medvedev stated that, if the Kremlin`s operations with US dollars were to be restricted, Moscow could fully switch to the yuan and euro instead (Vedomosti.ru, January 27). However, following Russia`s attack on Ukraine, the United States, the European Union, and other large economies have effectively barred Moscow from using their national currencies. As a result, aside from the Turkish lira, the United Arab Emirates` dirham and the Indian rupee—each of which cannot be fully relied on due to a number of factors—Russia has been reduced to the use of the yuan as an alternative reserve currency to the US dollar and euro.

Growing popularity of the yuan in Russia reached an intermediary zenith in August 2022, when sales of the Chinese currency skyrocketed (Quote.ru, September 8). Importantly, business giants, including Rosneft, Rusal, Polus and Metalloinvest, dramatically increased their investments in yuan bonds. As stated by Alexander Frolov, deputy director of the National Energy Institute, it makes perfect sense for Rosneft (and other resource-producing companies) to strengthen cooperation with the Chinese side via increasing the yuan’s use in their operations (Nezavisimaya gazeta, September 8).

Yet, while many Russian experts and officials are applauding the decision to increase the yuan’s use in financial operations, other experts and officials share serious doubts and concerns. For instance, during the Moscow Financial Forum, Russian Minister of Finance Anton Siluanov and Maxim Oreshkin, current economic adviser to Putin, disagreed on the yuan’s role as a reserve currency. While the former stated that currencies of foreign “friendly countries” should become a key factor in diversification of assets (1prime.ru, September 8), the latter disagreed, arguing that all monetary reserves must remain in Russia’s national currency (Rossiyskaya gazeta, September 8). Interestingly, even one of Russia’s main proponents for “de-dollarization,” Andrey Kostin, chair of the VTB Bank management board, speaking at the Eastern Economic Forum (September 5–8) in Vladivostok, argued that, while there are many positive aspects related to the use of the yuan, other negative aspects reveal the risks of overreliance on the Chinese national currency, which is stipulated by “distinctive features of Chinese financial legislation” (1prime.ru, September 6).

From his side, well-known Russian economist Stanislav Mitrakhovych indicated three main risks Russia could face when increasing reliance on the yuan.

  • First, the Russian Federation does not have the necessary skills and infrastructure to work with the Chinese currency. Although manageable over the long term, for now, the Russian financial system is ill-equipped and largely unprepared for the challenges of relying more on the yuan.

  • Second, a high level of nonmarket regulations will make the process incredibly difficult. Unlike Russia’s previous experience of dealing with foreign currencies—both the US dollar and euro are currencies of free-market economies—the yuan’s price is regulated by the Chinese state. Thus, when in need, Beijing can easily manipulate the price of the yuan (say, to create favorable conditions for foreign trade). This could leave Russia as a “hostage” to Chinese interests.

  • Third, despite China’s growing trade power and economic might, the yuan has not yet become a fully independent currency, remaining tight to other leading global currencies. Thus, it should be remembered that—at least in the short term—the yuan will still be tight to the US dollar, meaning that the Chinese national currency might become an excellent investment tool for the future. For now, however, “making a bet solely on yuan could be a risky enterprise” (Gazeta.ru, September 8).

Other Russian economists have also drawn attention to the fact that operations with the yuan could pose multiple risks. For instance, even ultra-conservative Russian information outlets have argued that the People’s Bank of China (PBC) could easily devalue China’s national currency, which could result in serious challenges for Beijing`s partners who are investing in the yuan. Thus, despite its decreasing volatility, the yuan remains a somewhat challenging investment tool, whose exchange rate is almost fully dependent on the PBC (REGNUM, September 6). Interestingly, now—only after Russia was barred from operations with the US dollar and euro—Russian economists are starting to realize that it is much safer and more beneficial to work with transparent reserve currencies. For instance, Sofia Donets, an economist at Renaissance Capital specializing on Russia, complained that, if before, Russian economists and finance experts could easily access and read all regulations in “plain English,” now, working with the Chinese side, regulations are opaque and unclear (Vedomosti.ru, August 18).

In truth, some of the challenges feared by Russian economists and finance experts regarding Russia’s growing involvement with the yuan are coming true. The Russian side has been compelled to admit that Moscow’s inquiry to China to strengthen their partnership in the realm of financial cooperation has not been strongly supported by Beijing. In effect, Chinese authorities are unwilling to change domestic regulations to allow its investors to operate with Russia-issued bonds. Instead, China is more comfortable with foreigners investing in its so-called “panda bonds,” which are sold only in the internal Chinese market (The Moscow Times, September 8). Moreover, Russian experts fear that, with 17 percent of foreign exchange reserves in yuan, the Kremlin will not be able to pull money promptly when needed, thereby becoming trapped by China (The Moscow Times, September 4).

Tyler Durden
Fri, 09/30/2022 – 05:00

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T-Rex Skeleton Expected Fetch Up To $25 Million At Auction

T-Rex Skeleton Expected Fetch Up To $25 Million At Auction

A fossilized Tyrannosaurus Rex skeleton, estimated to be around 66-68 million years-old, is expected to sell for as much as $25 million in an upcoming auction at Christie’s Hong Kong in November.

Above, Shen the T. rex’s full skeleton appears on display ahead of its November auction in Hong Kong. Many scientists oppose auctioning fossils because of the important information they contain. Marcus Müller-Witte / Christie’s

The sale, which will occur on Nov. 30, will mark the first time a T-Rex skeleton is offered at (public) auction in Asia, Christie’s said in a Thursday statement.

The T-Rex named Shen, meaning god-like in Chinese, will be available to view at the Victoria Theater & Concert Hall in the lead-up to the auction, before being displayed and auctioned at the Hong Kong Convention and Exhibition Center.

It clocks in at 43ft long, 15ft high and 7ft wide, and weighs approximately 3,000 lbs.

Fewer than 20 T-rex skeletons exist in the world – most of which are incomplete.

Shen was found in McCone County, Montana in the Hell Creek Formation, and is 54% complete.

“From its surging, bloodthirsty stance, to its remarkable preservation, this is one of the most scientifically studied T. rex skeletons to come to auction,” said James Hyslop, Head of Science & Natural History at Christie’s Hong Kong auction house. “After the unforgettable, record-breaking sale of STAN at Christie’s New York in 2020, it is a thrill and an immense privilege for us to be trusted with the sale of another wonderous T. rex skeleton.”

Scientists are in a huff over the sale.

“The problem with treating fossil specimens like trophies or collectibles is that their real significance comes from the information in the bones (from the obvious anatomical features to microscopic structures to even the isotopic composition of the molecules in the bone crystals), not from the object itself,” said Thomas R. Holtz, a principal lecturer in Vertebrate Paleontology at the University of Maryland, in a statement to Newsweek.

“Fossils which are in museum collections are in principle accessible to researchers now and into the future for analysis and study, including types of analyses and studies that we can’t even imagine yet. Specimens which are privately owned are not so accessible, and even if they are now they might not be in the future,” he added.

When a Gorgosaurus skeleton was sold by Sotheby’s in July for $6 million, many experts spoke up about their concerns.

Gregory Erickson, a professor of paleobiology at Florida State University, told the BBC he fears that these million-dollar sales of dinosaurs “sends a message that it’s just any other commodity that you can buy for money and not for scientific good.” -Newsweek

Stan, the T-rex skeleton mentioned above, sold in 2020 for $31,800,000 in an Abu Dhabi Christie’s auction.

“One very important part of scientific research is ‘repeatability’: the ability of independent researchers to examine the same materials and see if they come to the same (or different) conclusions as the first set of scientists,” said Holtz.

“Specimens in private hands might be accessible to one set of scientists (perhaps friends of the rich person who buys it) but are not necessarily available to anyone else to check for themselves. So conclusions based on such specimens are really hearsay, not data.”

Tyler Durden
Fri, 09/30/2022 – 04:15

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Chinese Youth Unemployment Still Near Record High

Chinese Youth Unemployment Still Near Record High

China’s jobless rate for 16- to 24-year-olds stood at 18.7% in August, stubbornly close to July’s record-high 19.9%. 

The slight improvement came as the Chinese government unrolls a variety of stimulus measures — while also continuing to undermine the economy with draconian zero-Covid policies that are as destructive as they are quixotic. 

With a record 10.8 million Chinese set to graduate from college by the end of the year, competition for positions is only getting fiercer. One unemployed 2021 graduate was recently alarmed to discover some job postings are now open only to 2022 and 2023 grads. 

Of course, recent college grads aren’t the only ones looking for openings: Layoff victims are in the mix too.

Earlier this month, the Chinese government committed to a host of initiatives meant to boost employment prospects

“China’s cabinet…said it would scale up support for start-ups to help create jobs, ordered banks to extend special loans to key internet companies and promised subsidies for college students yet to find work two years after graduation,” reports the South China Morning Post.

Those measures face stiff headwinds: While job applications soared a staggering 135%, job advertisements in the second quarter plummeted by 19%, compared to 2021. 

Meanwhile, a broader sort of stagnation is setting in among Chinese youth. It’s encapsulated by a recently-popularized phrase in China: “tang ping,” which means “lying flat.” Similar to the American notion of “quiet quitting,” tang ping represents a lifestyle that embraces low expectations for professional and financial success.

The stagnation also seems to be affecting the institution of marriage. Marriages fell to a record low of 7.6 million last year, about half the record mark set in 2013. As we explained recently, that trend is weighing mightily on the housing market, feeding a vicious circle of economic and social malaise. 

Speaking to the South China Morning Post, a 24-year old graduate of a top Shanghai university summed up the bleak situation confronting the young people of the world’s most populous country: “We’re in a pessimistic and helpless mood.”

Tyler Durden
Fri, 09/30/2022 – 04:15

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Brickbat: If It Pleases the Court


Judge's gavel

Court documents say former Brooklyn Surrogate Court judge Harriet Thompson was removed from the bench after a series of anti-gay and racist remarks in front of other court officials. Thompson reportedly said, “I hate these gay white men” and complained about “gay racist f—–s … trying to ruin me and get me.” The documents also claim she said she assumed anyone in a case with an Hispanic-sounding name is a liar. “They have a deceitful trait that goes way back to Biblical times,” she was quoted as saying. “The men are always stealing, and the women are no better. They lie, steal and use their vaginas for anything they want.” She’s seeking to vacate the order removing her from the bench, calling it a “political hit” and denying the allegations.

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Brickbat: If It Pleases the Court


Judge's gavel

Court documents say former Brooklyn Surrogate Court judge Harriet Thompson was removed from the bench after a series of anti-gay and racist remarks in front of other court officials. Thompson reportedly said, “I hate these gay white men” and complained about “gay racist f—–s … trying to ruin me and get me.” The documents also claim she said she assumed anyone in a case with an Hispanic-sounding name is a liar. “They have a deceitful trait that goes way back to Biblical times,” she was quoted as saying. “The men are always stealing, and the women are no better. They lie, steal and use their vaginas for anything they want.” She’s seeking to vacate the order removing her from the bench, calling it a “political hit” and denying the allegations.

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US Citizen Among The Dead In Iran Cross-Border Drone Attack On Iraq’s Kurds

US Citizen Among The Dead In Iran Cross-Border Drone Attack On Iraq’s Kurds

Authored by Jason Ditz via AntiWar.com,

Continuing to reel from public protests and the international rebuke for their handling of them, Iran is going down the path so many others have tried, seeking a military solution.

To that end, Iran fired artillery at Kurdish groups in the area along the Iraqi border, killing 13. The attacks centered on Koya, east of the Iraqi Kurdish city of Irbil. While the Kurds are seemingly unrelated to this issue, Iranian officials are claiming that they are fueling the latest unrest inside Iran, and suggested that they are smuggling weapons to the protesters. Iran also sent a drone in a direction of Irbil, and with Iraq requesting US action they shot down the UAV. CENTCOM said Iran’s indiscriminate attacks were a threat to stability.

Via AP: An Iranian drone bombing campaign targeting the bases of an Iranian-Kurdish opposition group in northern Iraq killed and wounded dozens.

CENTCOM said US forces suffered no damage in the matter, nor any casualties. Analysts say they believe Iran wanted to “externalize” the ongoing unrest. The evidence is lacking, but Iran has been at odds with Kurdish rebels for awhile, and making them a scapegoat is a time-honored tradition across the region.

Colonel Joe Buccino, CENTCOM (US Central Command) communications director, said in a statement, “At approximately 2:10 PM local time, US forces brought down an Iranian Mojer-6 Unmanned Aerial Vehicle headed in the direction of Erbil as it appeared as a threat to CENTCOM forces in the area.”

“CENTCOM personnel operate in Iraq at the invitation of the Government of Iraq to advise, assist, and enable partner forces in the ensuring the lasting defeat of ISIS,” he added.

The statement singled out  “the Islamic Revolutionary Guard Corps’ unprovoked attack in Iraq’s Erbil Governorate this morning.” The US military spokesman added: “Such indiscriminate attacks threaten innocent civilians and risk the hard-fought stability of the region.”

“No US forces were wounded or killed as a result of the strikes and there is no damage to US equipment,” Col. Buccino noted.

* * *

Later it was widely reported that “A US citizen, Omar ‘Chicho’ Mahmoudzadeh was killed in the strikes, according to UK-based Persian news network Iran International,” The Jerusalem Post writes.

Tyler Durden
Fri, 09/30/2022 – 03:30

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Escobar: Giorgia (Meloni) On Our Mind

Escobar: Giorgia (Meloni) On Our Mind

Authored by Pepe Escobar,

Grab the Negronis and the Aperol Spritz; it’s show time…

It’s tempting to interpret the Italian electoral results this past Sunday as voters merrily hurling a bowl of lush papardelle with wild boar ragu over the collective bland faces of the toxic unelected Euro-oligarchy sitting in Brussels.

Well, it’s complicated.

Italy’s electoral system is all about coalitions. The center-right Meloni-Berlusconi-Salvini troika is bound to amass a substantial majority in both the Parliament’s Lower House and the Senate. Giorgia Meloni leads Fratelli d’Italia (“Brothers of Italy”). The notorious Silvio “Bunga Bunga” Berlusconi leads Forza Italia. And Matteo Salvini leads La Lega.

The established cliché across Italy’s cafes is that Giorgia becoming Prime Minister was a shoo-in: after all she’s “blonde, blue eyes, petite, sprightly and endearing”. And an expert communicator to boot. Quite the opposite of Goldman Sachs partner and former uber-ECB enforcer Mario Draghi, who looks like one of those bloodied emperors of Rome’s decadence. During his Prime Ministerial reign, he was widely derided – apart from woke/finance circles – as the leader of “Draghistan”.

On the financial front that otherworldly entity, the Goddess of the Market, the post-truth equivalent of the Delphi Oracle, bets that PM Giorgia will insist on the same old strategy: debt-funded fiscal stimulus, which will turn into a blowout in Italian debt (already huge, at 150% of GDP). All that plus a further collapse of the euro.

So the big question now is who’s going to be Italy’s new Finance Minister. Giorgia’s party has no one with the requisite competence for it. So the preferred candidate shall be “approved” by the usual suspects as a sort of enforcer of “Draghistan lite”. Draghi, by the way, already said he’s “ready to collaborate”.

Marvels of gastronomy apart, life in the EU’s third largest economy is a drag. Long-term growth prospects are like a mirage in the Sahara. Italy is extremely vulnerable when it comes to the financial markets. So a bond market a-go-go selloff in the horizon is practically a given.

In case of a – nearly inevitable – financial catfight cage match between Team Giorgia and Christine “look at my new Hermes scarf” Lagarde at the ECB, the European Central Bank will “forget” to buy Italian bonds and then, Auguri! Welcome to a new round of EU sovereign debt crisis.

On the campaign trail, sprightly Giorgia incessantly pledged to keep the massive debt under control. That was coupled with the requisite message to placate the woke crypto-“Left” and its neoliberal banking owners: we support NATO and sending weapons to Ukraine. In fact everyone – from Giorgia to Salvini – supports the weaponizing, having signed a letter during the previous legislature, in effect until the end of 2022.

Deconstructing a “semi-fascist”

The Atlanticist woke/neoliberal sphere, predictably, is fuming with the advent of “post-fascist” Italy: oh, these people always voting the wrong way… The discombobulated think tank crowd is pointing to the latest in a cycle of populist waves in Italy; they don’t even know what “populist” means. But they can’t be too hysterical because Giorgia, after all, is a product of the Aspen Institute.

Giorgia is a complex case. She is essentially a trans-Atlanticist. She abhors the EU but loves NATO. In fact, she would love to undermine Brussels from the inside, while making sure the EU does not cut off those crucial flow of funds to Rome.

So she does confound primitive, crypto-“Left” American “experts”, who blame her at best for “semi-fascism” – and thus more dangerous than Marine Le Pen or Viktor Orban. Then she gets immediate redemption because at least vocally she proclaims to be anti-Russia and anti-China.

But then again, the temptation to burn her at the stake is too great: after all she’s appreciated by Steve Bannon, who proclaimed four years ago that “you put a reasonable face on right-wing populism, you get elected.” And she keeps terrible company: Berlusconi is dismissed by the woke/neoliberal Americans as a “Putin buddy” and Salvini as a “firebrand nationalist”.

It’s imperative to imbibe a strong dose of reality to form a clear picture of Giorgia. So let’s turn to a fine Turin intellectual and author, Claudio Gallo, now benefitting from being far away from the toxic fog of Italian mainstream media, mostly a fiefdom of the dreaded Agnelli/Elkann family.

Here are Gallo’s key takeaways.

On Giorgia’s popular appeal: Her support “among working people is a fact. We can see that in every survey. However, this is not a new tendency, and it started in the time of Berlusconi. At this moment, the working class began to vote for right-wing parties. But I believe this is not an Italian-only trend. If you look at France most of the representatives of the traditional working class vote for Le Pen, not the socialist parties. It is a European trend.”

On the “Draghi agenda”: “You can figure out the kind of governments we just had as a European Troika with one man only – Mario Draghi. They have proposed the most brutal economic reforms inspired by Brussels, such as extreme flexibility and fiscal austerity. These are policies that affect mainly the middle classes and poor people (…) The Draghi government decreased welfare spending by 4 billion euros next year and another 2 billion in two years. It means 6 billion less will be available for healthcare in two years. There were cuts also in the school system. Polls show that more than 50% of Italians did not support Draghi and his program. Draghi comes from the most powerful part of society, the banking sector. In the leading Italian media, it is impossible to find any critics of this agenda.”

On a possible Berlusconi power play: “He has quite a huge audience. He is accredited with roughly 8% of the vote. After all these years and all his judicial difficulties, it is still a lot (…) A few months after the election, we can imagine a situation in which Meloni is forced to resign because she cannot cope with the harsh winter (cost of living out of control, social unrest). It will be the time of a Grosse Koalizion to save the country, and Berlusconi, with his strong stance on NATO and Europe, is ready to play his cards. Berlusconi would be the key to a new coalition. He is always ready to get any compromise done.”

On “firebrand” Salvini: “He is the leader of a very divided party. He used to have a populist agenda, but at the top of his party you can also find some technocratic figures like Giancarlo Giorgetti, a staunch defender of the interests of the North Italian Confindustria. Salvini is losing consensus within his electoral base, and Meloni stole his votes along with Movimento Cinque Stelle. His party is divided between old politicians that dreamed of some federation to strengthen the autonomy of the Northern regions and others more inspired by Marine Le Pen’s right. It’s a volatile mixture.”

On Giorgia under pressure: “The pressure of the economic issues, inflation, price of gas and so on, will make Meloni, a very tough politician but not an expert statesman, probably resign. In Italy, there is a political stalemate; like everywhere in the West, democracy doesn’t work correctly. All parties are pretty much the same, with some cosmetic differences; everyone can still make a coalition with anybody else, without any regard to principles or values.”

“The more things change…”: “The man behind the foreign policy of Fratelli d’Italia is an ex-ambassador in US and Israel, Giulio Terzi di Sant’Agata. I cannot see how his opinion differs from Draghi’s. The same neoliberal and Atlantistic background, the same technocratic resume. Meloni is simply capitalizing that she didn’t participate in the last government, even if she doesn’t offer any alternative. Meloni repeats that nothing will change; we will send money and arms [to Ukraine]. She sends a lot of signals to NATO and the EU that they can count on her when it comes to foreign policy. I think she is sincere: she is surrounded by the people who will make it real. It is very different from the situation a couple of years ago when Meloni published a book in which she said we need to have a good relationship with Putin and build a new European order. Now she has completely changed her position. She wants to be seen as a trustworthy future premier. But the polls say that 40-50% of Italians don’t like to send weapons to Ukraine, and support every diplomatic measure to end the war. The cost of living crisis will strengthen this position among the people. When you cannot warm your house, everything changes.”

The real cage match

No one ever lost money betting on the EU oligarchy always behaving like a bunch of self-entitled, stubborn, unelected pricks. They never learn anything. And they always blame everyone except themselves.

Giorgia, following her instincts, has a decent shot at burying them even deeper. She is more calculating and less impulsive than Salvini. She won’t go for a euro exit and much less an Italexit. She won’t interfere with her Finance Minister – who will have to deal with the ECB.

But she remains a “semi-fascist”, so Brussels will want her scalp – in the form of cutting off Italy’s budget appropriations. These Eurocrats would never dare doing it against Germany or France.

And that brings to the political set up of the – supremely undemocratic – European Council.

Giorgia’s party is a member of the European Conservatives and Reformists bloc, along with only two other members, the PMs of Poland and Czech Republic.

The Socialists & Democrats bloc has seven members. And so does Renew Europe (the former “liberals”): that includes the president of the European Council, the supremely mediocre Charles Michel.

The center-right European People’s Party has six members. That includes Ursula “My Grand Dad was a Nazi” von der Leyen, the sadomaso dominatrix in charge of the European Commission.

The prime catfight cage match to watch in fact is Giorgia versus dominatrix Ursula. Once again, Mediterranean swagger against the Teutonic techno-barbarians. The more Brussels harassment of Giorgia, the more she will counter-attack, with full support of her post-truth Roman legions: Italian voters. Grab the Negronis and the Aperol Spritz; it’s show time.

Tyler Durden
Fri, 09/30/2022 – 02:00

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How Do You Challenge A Student Loan Forgiveness Rule That Does Not Exist?

To date, I have not written about President Biden’s student loan forgiveness initiative. Why? Because the rule doesn’t actually exist! There has been no notice in the Federal Register. Rather, we are left with a series of press releases, fact sheets, and the like. Government by blog post, as I’ve called it, is not new. The Obama Administration would often modify regulatory regimes, such as the Affordable Care Act, through FAQs and other subregulatory guidance documents. But as best as I can recall, the Obama Administration did not deliberately avoid publishing a new rule to frustrate legal challenges. Yet it seems that the Biden Administration is doing exactly that. Indeed, the Administration appears to be making changes to the policy on the fly for the express purpose of blocking law suits.

Consider the case brought by the Pacific Legal Foundation on September 27. What was the theory of standing? Frank Garrison (a lawyer for PLF) claimed he would face an increased tax burden if his debt was automatically cancelled. When the suit was filed, Garrison did not have to take any steps–the debt would be cancelled automatically. PLF obviously recognized that this policy could be changed. Steve Simpson of PLF told the New York Times:

If borrowers can opt out, Mr. Garrison’s claim “will be a harder case for us,” said Steve Simpson, a senior attorney at Pacific Legal, which is representing Mr. Garrison. “It would be harder to argue that he’s harmed any more.”

Lo and behold, the Biden Administration would make just that change. On September 28, the Department of Education filed a notice with the court:

In his motions for temporary restraining order and preliminary injunction, Plaintiff challenges a federal student loan cancellation policy announced by the U.S. Department of Education (“Department”), and claims that he will be harmed if the Department automatically cancels $20,000 of his federal student loan debt. Defendants submit this notice in advance of tomorrow’s scheduled conference to inform the Court that the Department updated its website today to confirm that any borrower who qualifies for automatic debt relief—i.e., relief without filing an application—will be given an opportunity to opt out. See U.S. Dep’t of Educ., Federal Student Aid, One-Time Student Debt Relief, https://ift.tt/LtJTix2 (last visited Sept. 28, 2022) (“If you would like to opt out of debt relief for any reason, including because you are concerned about a state tax liability, you will be given an opportunity to opt out.”). Upon receiving this lawsuit and reviewing Plaintiff’s filings, the Department has already taken steps to effectuate Plaintiff’s clearly stated desire to opt out of the program and not receive $20,000 in automatic cancellation of his federal student loan debt, and so notified Plaintiff’s counsel today.

Within 24 hours, the Department updated its website, and opted Garrison out of cancellation, thus mooting the suit. This filing almost sounds giddy. You can’t stop us! We’re the government! And, by the way, you’re stuck paying the $20,000 debt. Sorry, Frank. Emily Bremer flagged the change:

Because the Department has not yet published a notice of or rule governing the program (the final agency action everyone seems to be waiting for), the program remains malleable even as its implementation is already underway. Indeed, the Department’s guidance to borrowers changed just this week (compare this snapshot from Monday, September 26 to this snapshot from today). “Nearly 8 million borrowers may be eligible to receive relief automatically,” changed to “[n]early 8 million borrowers may be eligible to receive relief without applying–unless they choose to opt out.”

Now you see it:

Now you don’t.

The word “automatically” was simply airbrushed away, like a photo of Stalin.

And on September 29, the district court denied relief because of the change:

Following a change in the student loan debt relief plan at issue (Filing No. 13), the court, in view of the fact the Department of Education exempted Plaintiff from receiving debt relief, finds Plaintiff cannot be irreparably harmed as is required for preliminary relief. Pursuant to the parties’ agreement, the motions for a temporary restraining order (Filing No. 4) and preliminary injunction (Filing No. 5) are DENIED without prejudice.

Notice that the court refers to a “student loan debt relief plan.” Not a rule or regulation or anything of the sort. A “plan,” whatever that is.

On September 29, we saw yet another attempt to block litigation. Missouri and several other states challenged the not-yet-released policy. Missouri’s Higher Education Authority asserted standing based on servicing Federal Family Education Loans (FFELP):

104. The Mass Debt Cancellation has created an enormous incentive to consolidate FFELP loans not held by ED (which are not currently eligible for cancellation) into DLP loans (which are eligible for cancellation). The inevitable result is that FFELP loan borrowers will likely consolidate into DLP loans en masse.

105. The consolidation of MOHELA’s FFELP loans harms the entity by depriving it of an asset (the FFELP loans themselves) that it currently owns.

106. The consolidation of MOHELA’s FFELP loans harms the entity by depriving it of the ongoing interest payments that those loans generate.

This argument may have been valid when the complaint was filed. But sometime on September 29, the Education Department excluded the FFEL loans from the loan forgiveness policy. Poof! NPR described the reversal as “remarkable.”

Today, according to federal data, more than 4 million borrowers still have commercially-held FFEL loans. Until Thursday, the department’s own website advised these borrowers that they could consolidate these loans into federal Direct Loans and thereby qualify for relief under Biden’s debt cancellation program.

On Thursday, though, the department iss. The guidance now says, “As of Sept. 29, 2022, borrowers with federal student loans not held by ED cannot obtain one-time debt relief by consolidating those loans into Direct Loans.”

Now you see it!

Now you don’t!

If only the Internet Archive was around to index the missing eighteen minutes from the Watergate Tapes!

The Department of Education excluded nearly 800,000 borrowers with FFEL loans. Why? It seems that the government is trying to block Missouri’s suit. To be sure, Missouri has several other theories of standing. (I was impressed with how thorough the injury section was.) But the government’s behavior here is clear as day: modify the policy on the fly to knock out any viable theories of standing, even if doing so excludes people from loan forgiveness.

Emily Bremer offers a more charitable take:

This change presumably was made in response to the lawsuit filed earlier this week challenging the program’s legality, to defeat the plaintiff’s standing (and prevent others from having such standing).

This raises a troubling possibility: that the Department of Education has not published a notice or rule establishing the loan forgiveness program (as § 1098bb requires) precisely because the absence of a final agency action makes a legal challenge more difficult. Maybe a notice or rule will be forthcoming–perhaps when the first borrowers receive the promised loan forgiveness. If so, millions of borrowers might be granted relief before a court could consider a challenge to the program’s lawsuits. And perhaps that, too, is the goal.

How do you challenge a rule that doesn’t exist, and that constantly changes with every new blog post? The Biden Administration keeps moving the goal posts to block legal challenges.

I have no doubt lawyers in DOJ planned each and every step here: they would wait till a suit was filed, then update the website with a “revision” to try to moot the litigation. (Congressional Republicans should exercise their oversight power here to investigate.) And, for all we know, the Department will finally publish the rule when it looks like things are getting risky in court–maybe hope for a remand without vacatur. (Recall the various iterations of the travel ban that were issued.) But by that point, millions of Americans will already benefit from the rule, and the Administration will have prevailed.

We should all think back to the census litigation. The Chief Justice, in particular, was incensed with how the Trump Administration played fast and loose with the rules, and modified explanations on the fly during the course of litigation. Here, we have an inchoate policy that is about to spend hundreds of billions of dollars, without an actual rule in print. And, the plan is being altered for the blatant purpose of blocking litigation. I suspect this gamesmanship will not be received well. If one or more circuits enjoin the policy, do not expect the Supreme Court to stay the injunction on the emergency docket.

The post How Do You Challenge A Student Loan Forgiveness Rule That Does Not Exist? appeared first on Reason.com.

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Brief Update on the Pacific Legal Foundation Case Against Biden’s Student Loan Cancellation Plan


Silhouettes of students wearing caps. The students are made out of money.

On Wednesday I wrote about the case challenging Biden’s student loan debt cancellation program filed by the Pacific Legal Foundation (PLF) on behalf of attorney Frank Garrison, who is himself a PLF employee. For details about the case and its novel strategy for getting around the procedural constraint of “standing” see my earlier post.

Yesterday, federal district court Judge Richard Young issued an order denying the plaintiff’s motion for a temporary restraining order and preliminary injunction blocking. But the order is “without prejudice,” which means Garrison and PLF can quickly refile the case. And, in fact, the judge’s order gives them until October 10 to file an amended complaint, in which he urges them to consider the following two issues:

1. Whether [Garrison] (and any additional plaintiffs) have standing. Particularly, whether their injury is caused by and fairly traceable to the debt relief program or to the Indiana Tax Code. See Segovia v. United States, 880 F.3d 384, 388–89 (7th
Cir. 2018).

2. Whether the Department of Education has taken sufficient action for the case
to be ripe for adjudication. Plaintiff’s allegations speculate about the terms of
the program. But as evidenced by the Government’s recent addition of an opt-
out provision, the plan is still evolving.

The first question relates to “causation,” which is one of the requirements of standing. As I see it, the cause of Garrison’s injury is the combination of the Biden plan and the Indiana Tax Code’s refusal to exempt this type of loan forgiveness from taxation (even as it does exempt the type of loan forgiveness he would get in the absence of the plan). But the fact that the Biden plan causes the injury in conjunction with actions by others doesn’t necessarily defeat standing, so long as the injury would still be avoided in the absence of the administration’s actions. There are previous cases where an injury  like this was enough to qualify for standing. Most famously, in Massachusetts v. EPA (2007), the Supreme Court ruled that Massachusetts and other states had standing to challenge the EPA’s refusal to regulate to prevent global warming, despite the fact that the claimed injuries were not solely caused by the EPA’s refusal to act, but by the combination of that and continuing emissions by various polluters.

As the judge notes, the administration has said that it plans to create an opt-out from its loan forgiveness plan that Garrison and others like him can take advantage of. Whether that defeats standing may depend on how the opt-out works, and how costly it is to get one. If doing so has even a small cost, that in itself might qualify as an “injury” sufficient for standing, even if a small one (a very small injury can be enough).

I will leave the ripeness issue to others with greater relevant expertise on that subject. But I expect that problem will soon become irrelevant, because the administration plans to begin implementing the plan, in the near future (probably in October).

In sum, the opt-out ploy could potentially derail this lawsuit. Whether it does or not depends in part on how the opt-out is structured. The causation issue is also one to watch, though it strikes me as a weaker argument for the government than the other.

Meanwhile, the significance of this lawsuit has diminished over the last 24 hours, because of the filing of another suit challenging the loan forgiveness plan, by six state governments. This one has a more conventional and stronger basis for standing, that seems likely to succeed.

NOTE: The Pacific Legal Foundation—the public interest firm litigating the Garrison case—is also my wife’s employer (though she herself is not working on the case). My interest in this issue—and other similar separation of powers matters—long predates PLF’s involvement.

 

The post Brief Update on the Pacific Legal Foundation Case Against Biden's Student Loan Cancellation Plan appeared first on Reason.com.

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