Jaiden is a 12-year-old boy who attends the Vanguard School in Colorado Springs, Colorado. He is the subject of a video that went viral on social media; it shows the boy and his mother confronting a school administrator who asserts that the Gadsden flag patch on his backpack violates district policy.
“The reason that we do not want the flag displayed is due to its origins with slavery and the slave trade,” says the administrator.
Meet 12yo Jaiden who was kicked out of class yesterday in Colorado Springs for having a Gadsden flag patch, which the school claims has "origins with slavery."
The school's director said via email that the patch was "disruptive to the classroom environment."
On Monday, school officials removed Jaiden from class due to his Gadsden flag patch. His mother has fought back against this disciplinary action, explaining that the flag—a coiled snake above the phrase “Don’t tread on me”—is not a pro-slavery image; it has its origins in the Revolutionary War and was intended as a symbol of resistance to British tyranny.
District officials did not respond to a request for comment, but Libertas Institute President Connor Boyack—who first publicized Jaiden’s situation—shared an email that they sent to Jaiden’s mother, in which the district reiterated its position that the Gadsden flag is an “unacceptable symbol” tied to “white-supremacy” and “patriot” groups.
It’s true that some white supremacists have appropriated the flag. But so have classical liberals and libertarians—includingReason (check out our 404 Error page). Some lefty groups have cited Gadsden too. There’s even a pro-LGBT version.
In any case, Jaiden’s mother is absolutely correct that the flag’s origins have nothing to do with racism or slavery. In their email, district officials approvingly cited a 2016 Washington Post article by Reason‘s Eugene Volokh evaluating an Equal Employment Opportunity Commission (EEOC) case. The case in question involved a post office employee whose Gadsden flag hat had generated racial harassment claims. But ultimately, the EEOC declined to rule that the Gadsden flag was a racist symbol.
The Supreme Court has ruled that K-12 officials have significant authority to limit students’ free expression rights in order to promote classroom cohesion. But the school cannot discriminate against Jaiden’s viewpoint by wrongly and arbitrarily declaring the Gadsden flag to be a hate symbol.
“There is nothing inherently disruptive about a student displaying a Gadsden flag patch on his backpack,” writes Aaron Terr, director of public advocacy at the Foundation for Individual Rights and Expression. “Public school administrators can’t ban the expression of an idea, symbol, or viewpoint just because they personally dislike it.”
Democratic Colorado Gov. Jared Polis also came to Jaiden’s defense, describing the flag’s message as “iconic” in a post on X.
“The Gadsden flag is a proud symbol of the American revolution and [an] iconic warning to Britain or any government not to violate the liberties of Americans,” wrote Polis. “It appears on popular American medallions and challenge coins through today and Ben Franklin also adopted it to symbolize the union of the 13 colonies. It’s a great teaching moment for a history lesson!”
When reached for comment by Reason, Polis reaffirmed his comment and noted that he also agreed with sentiments expressed by Rep. Ted Lieu (D–Calif.).
“I oppose banning the Gadsden flag in schools for the same reason I oppose conservative schools districts that ban LGBTQ flags in schools,” wrote Lieu. “Let kids be their authentic selves and give them a world of information—students can figure out what’s important to them.”
From yesterday’s Fifth Circuit order in In re Mesaros, decided by Judges Edith Brown Clement, Kurt Engelhardt, and Andrew Oldham:
Respondents allege that on October 30, 2020, they were travelling through Texas in a Biden-Harris tour bus. According to respondents’ complaint, Delores Park, Joeylynn Mesaros, and Robert Mesaros (collectively “petitioners”) coordinated with others to form a “Trump Train” that surrounded the Biden-Harris bus, blocked its path, and forced it to slow down to 15-25 miles per hour. One participant in the “Train” (not a party to these mandamus proceedings) allegedly side-swiped another vehicle. On respondents’ telling, the “Trump Train” caused “significant psychological harm” and resulted in the cancellation of the remaining Biden- Harris campaign events in Texas.
Respondents filed a complaint asserting the “Trump Train” amounted to an actionable conspiracy to thwart, by intimidation, their lawful support of the Biden-Harris campaign. For their cause of action, respondents relied on 42 U.S.C § 1985(3)’s Support-or-Advocacy Clause. Congress passed the Support-or-Advocacy Clause in the Ku Klux Klan Act of 1871. It provides, in relevant part, that one “injured in his person or property” by “two or more persons conspir[ing] to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President … may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.”
Petitioners moved to dismiss respondents’ claim on the ground that the Support-or-Advocacy Clause only supplies a cause of action against conspiracies that involve state action or are motivated by racial animus, which respondents did not allege. The district court denied the motion ….
Generally speaking, such denials of motions to dismiss aren’t immediately appealable—the defendants have to wait until a final judgment (for instance, after a trial, if the case goes that far), and then appeal if they have lost at that point. Nonetheless, there are exceptions to that principle:
Of relevance here, when a district court’s order involves “a controlling question of law as to which there is substantial ground for difference of opinion,” and “immediate appeal from the order may materially advance the ultimate termination of the litigation,” the district court judge may certify it for interlocutory appeal. The court of appeals may then “permit an appeal to be taken from such order.”
And the Fifth Circuit suggested that this standard for interlocutory appeal was satisfied:
The controlling question of law in this case is whether the Support-or-Advocacy Clause affords respondents a cause of action against petitioners. The Support-or-Advocacy Clause was originally enacted in Section 2 of the Ku Klux Klan Act of 1871. As its name suggests, Congress passed the Klan Act to address the racially motivated “murders, whippings, and beatings committed by rogues in white sheets in the postbellum South.” But the Support-or-Advocacy Clause differs from much Reconstruction legislation, and even other provisions of 42 U.S.C § 1985(3), in that its text says nothing about racial discrimination.
Respondents contend this omission was intentional. They say the Klan Act’s provisions are divisible into those that protect federal interests and those that regulate interests traditionally subject only to state police power. Congress could regulate the latter category solely pursuant to the powers granted to it by the Reconstruction Amendments. So it restricted some provisions of the Klan Act to racially motivated conspiracies, and possibly to conspiracies involving state action or, alternatively, private conspiracies so “massive and effective” as to “supplant[]” the authorities and “thus satisf[y] the state action requirement.[“] But Congress was not so limited in protecting federal interests outside of the Reconstruction Amendments. According to respondents, Congress enacted the Support-or-Advocacy Clause pursuant to Article I’s Elections Clause, thus sweeping more broadly than its Reconstruction-Amendments powers and protecting the federal interest in the purity of federal elections.
At least at a 60,000-foot level of generality, respondents have some support for their theory. In The Ku Klux Cases (1884), the Supreme Court affirmed the constitutionality of the since-repealed criminal companion to the Support-or-Advocacy Clause. It did so by pointing to Congress’s power to promote “the free, the pure, and the safe exercise of this right of voting.” And the Court reasoned this power comes not from the Reconstruction Amendments but rather from Article I’s Elections Clause, and the Necessary and Proper Clause. Thus, respondents might be right that racial animus is not a prerequisite to recovery under the Support-or-Advocacy Clause because racial animus is not required by Article I’s Elections Clause….
Still, there is unquestionably a “substantial ground for difference of opinion” that necessitates certification of a “controlling question of law” under 28 U.S.C. § 1292(b). Respondents’ invocation of the Support-or-Advocacy Clause is unprecedented in the statute’s 152-year history. And what little precedent exists cuts squarely against respondents. Without the Support-or-Advocacy Clause, respondents’ only federal claim (and hence their only basis for litigating in federal court) fails. By our count, petitioners have at least four grounds for substantial difference of opinion, any one of which necessitates certification under § 1292(b).
First, it is unclear whether the Support-or-Advocacy Clause creates new substantive rights or merely supplies a remedy for violations of rights found elsewhere. Respondents have a law review article co-written by one of their lawyers before he filed this suit. On the other hand, petitioners have a published Eighth Circuit case that says the opposite … (holding the Support-or-Advocacy Clause merely provides a remedy for rights found elsewhere). Petitioners also have Supreme Court cases interpreting the clause immediately preceding the Support-or-Advocacy Clause to supply only a remedy and not to create new substantive rights. See, e.g., Bray v. Alexandria Women’s Health Clinic (1993) (interpreting § 1985(3)’s first clause); United Bhd. of Carpenters & Joiners of Am., Loc. 610, AFL-CIO v. Scott (1983) (same); see also Graham v. Connor (1989) (reaching the same conclusion regarding another provision of the 1871 Klan Act: “As we have said many times, § 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred.”). If the Support-or-Advocacy Clause merely provides a remedy for rights found elsewhere, then respondents appear to recognize they lose. Perhaps the district court had good reasons for picking respondents’ novel theory and law review article—co-written by an attorney in this case—over petitioners’ authorities. Regardless, petitioners’ judicial authorities constitute an obviously “substantial ground for difference of opinion.”
Second, it is unclear how respondents’ theory comports with the text of the Support-or-Advocacy Clause. The Clause applies to conspiracies:
to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President … the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.
Is the formation of a “Trump Train” a conspiracy to exercise “force, intimidation, or threat”? {As noted above, respondents also point to one defendant who allegedly side- swiped the vehicle of a campaign staffer. But respondents offer no allegation that petitioners conspired to side-swipe anyone. And § 1985(3) reaches only conspiracies.} Or, as the Eighth Circuit held, does § 1985(3) require something more closely related to the postbellum violence that necessitated the statute’s enactment? See Gill (holding the phrase “force, intimidation, or threat” means “something much more serious and terrifying than a written notice of cancellation of a contract designating Gill as an agent to sell Farm Bureau insurance”). Does it matter that no one on the Biden-Harris bus was going to vote? Or is the text better read to “provide[] a cause of action when a defendant prevents a plaintiff from exercising his/her voting rights, but not for broad-spectrum claims pertaining to generalized election advocacy”? There are myriad reasons for preferring petitioners’ reading of statutory text—not the least of which is that it comports with judicial authorities like Bray and Carpenters, which interpret the clause immediately preceding the Support-or-Advocacy Clause in § 1985(3). Again, that is far more than necessary to create a “substantial ground for difference of opinion.” 28 U.S.C. § 1292(b).
Third, it is unclear how respondents’ reading of the Support-or-Advocacy Clause comports with Article I of the Constitution. Recall that respondents’ theory requires that we hold the Support-or-Advocacy Clause is “valid under Congress’s Article I powers.” But Congress has no freestanding Article I power to regulate election-related activity. Congress only has power to regulate “The Times, Places and Manner of holding Elections ….” And while the Supreme Court has said Congress may promote the “purity” of federal elections, it has only affirmed applications of laws intimately related to ballot-casting. Respondents cite no case that embraces the breathtakingly broad counter-interpretation of Congress’s Article I powers. Again, that is far more than necessary to create a “substantial ground for difference of opinion.”
Fourth, it is unclear how respondents’ reading of the Support-or-Advocacy Clause comports with the First Amendment. There is no doubt that the First Amendment protects speech any reasonable person would find intimidating. See, e.g., Snyder v. Phelps (2011). And even otherwise constitutional applications of statutes that burden a substantial amount of protected speech might violate the First Amendment. These principles at least cut against respondents’ theory that they can sue private individuals for the intimidation they associated with the “Trump Train.” At the very least, there are serious questions that far exceed the standard for interlocutory certification under § 1292(b).
But wait, you might say: Isn’t it up to the district court to decide, in the first instance, whether to certify its order as interlocutorily appealable, on the grounds that it involves “a controlling question of law as to which there is substantial ground for difference of opinion”? It is indeed, and if the district court says no, then that decision is itself not directly appealable. Instead, someone seeking certification would then have to petition the Fifth Circuit for a writ of mandamus, which the defendants here did. And
[A] writ of mandamus … “is an extraordinary remedy for extraordinary causes.” We may grant a writ “only if (1) the petitioner has ‘no other adequate means’ to attain the desired relief; (2) the petitioner has demonstrated a right to the issuance of a writ that is ‘clear and indisputable;’ and (3) [we], in the exercise of [our] discretion, [are] satisfied that the writ is ‘appropriate under the circumstances.'”
On this point, the defendants’ appeal foundered, at least temporarily:
It is unclear that this is an extraordinary case. That is for two reasons. First, § 1292(b) creates a substantial role for district courts in the certification of interlocutory appeals. Appellate courts have accordingly been reluctant to compel § 1292(b) certification through writs of mandamus. Our court similarly has said it will compel certification in “very rare” circumstances.
Second, petitioners’ § 1292(b) motion raised only questions about whether the Support-or-Advocacy Clause requires allegations of racial animus or the presence of state action. Petitioners are correct that the district court should have granted the § 1292(b) motion on that basis. But that is only one of the four quite obvious bases for certifying the viability of respondents’ Support-or-Advocacy claim under § 1292(b). [See above.] We are confident that the district court will reach the correct certification decision if given another opportunity, which suggests petitioners have another adequate means to secure their requested relief. And if petitioners renew their § 1292(b) motion and again lose in the district court, they are free to renew their request for mandamus relief.
So no appeal for the defendants just yet; but the writing seems to be on the wall, and we should expect the case to be back at the Fifth Circuit on the merits.
In this Nov. 30, 2005 file photo, an anti-abortion supporter stands next to a pro-choice demonstrator outside the U.S. Supreme Court in Washington. (AP Photo/Manuel Balce Ceneta)
In an article published on the Federalist Society website, pro-life conservative legal scholar William Hodes argues that any such federal legislation would be unconstitutional, because it would exceed the scope of congressional power:
There are weighty legal, moral, medical, and political or policy arguments both for and against abortion, at different points during the gestation period and under varying maternal and fetal circumstances. But those are not the stuff of constitutional adjudication. The point of Dobbs, as the Court repeatedly said, was to return those arguments to the political process, meaning “to the people and their elected representatives.” Moreover, the Court repeatedly made clear its assumption that those elected representatives would be state legislators….
The chief reason that the proposed federal law cannot survive a constitutional challenge is that Congress lacks power to punish individual abortionists for plying their trade….
The government of the United States is a government of limited, enumerated powers. It has no power under the Fourteenth Amendment to criminalize the actions of individuals unless they are state or local government operatives or can be said to be acting “under color of state law.” To be sure, non-government actors can become state actors by conspiring with state or local officials or acting on their behalf, at their direction, or in response to their coercion.
But mere government “facilitation” or “encouragement,” such as, perhaps, the payment of Medicaid dollars, is not enough to turn private action into state action, unless it can fairly be said that the action—the abortion—is attributable to the state….
Although the state action doctrine prevents Congress from passing laws regulating or criminalizing private conduct pursuant to its Fourteenth Amendment enforcement power, there are many federal statutes, both criminal and civil, that do directly prohibit private actors from interfering with or violating the federal rights of others. Congressional power to pass those laws is derived from the Necessary and Proper Clause as applied to bankruptcy, federal taxation, patents, the post office, and much more. But the default go-to source of power is the Interstate Commerce Clause—frequently the constitutional elephant in the room…..
In the 1995 case of U.S. v. Lopez, for example, the Supreme Court invalidated the Gun-Free School Zones Act of 1990, which Congress had passed relying solely on the authority of its Commerce Clause power. A narrow majority of the Court held that talismanic invocation of the Commerce Clause was not enough: the mere possession of a firearm near a school could not “affect” any commercial or economic activity, even in the aggregate, although it is easy to list almost endless possible follow-on economic consequences of guns in schools, such as an increase in overall medical costs. But those consequences could just as easily follow from the commission of almost any crime, which demonstrated that the 1990 Act was a “police power” regulation, pure and simple. And the Constitution does not assign police powers to the federal government that it can bring to bear against individual citizens.
For the same reason, the Supreme Court invalidated the part of the Violence Against Women Act of 1994 that allowed a victim of sexual assault to sue her attacker, whether the attack was perpetrated under color of state law or not. In the 2000 case of U.S. v. Morrison, the Court again found that punishing the actor in such situations was beyond the scope of Congress’s Commerce Clause power, because the act itself had no economic or commercial element to it.
Perhaps most significant was the 2012 decision in National Federation of Independent Business v. Sebelius, which famously (or infamously) upheld the Affordable Care Act (Obamacare) requirement that individuals buy a certain level of pre-paid health care services as a valid exercise of Congress’s power to tax. But the Court only addressed the tax question because it had first held that Congress had exceeded its power under the Commerce Clause.
That initial part of the NFIB decision had major implications for the future development of the Court’s approach to the Commerce Clause, because although the economic and commercial impact of the individual mandate could not have been clearer, Chief Justice Roberts cogently explained that Congress was not engaging in any regulation of commerce. It was imposing a health and welfare regulation pursuant to a police power it did not have, and trying to pass it off as regulating commerce simply because so much money was involved.
Put Lopez and Morrison and NFIB together, and the pathway to invalidating a potential federal 15-week abortions restriction as an exercise of the Commerce Clause power is easy to see.
I agree with Hodes’ conclusion and with most of his arguments. It’s worth noting that, if a federal law banning abortion is beyond the scope of Congress’ power, the same is also true of laws proposed by Democrats mandating nationwide protection for abortion rights, overriding contrary state laws. Before Dobbs, such a law might have been defensible as a tool for enforcing individual constitutional rights protected by the Fourteenth Amendment. But under Dobbs, there is little, if any such right, remaining, and therefore Congress could not legislate to protect it using its Section 5 power to enact “appropriate” legislation to enforce the Fourteenth Amendment. There is likely an exception for laws protecting individuals’ rights to travel out of state to get an abortion, a right Justice Kavanaugh emphasized remains protected in a key concurring opinion in Dobbs. The same might be true for cases where an abortion is needed to protect the life of the pregnant woman.
I would, however, qualify Hodes’ argument in three ways. First, I am not as convinced as he is that Dobbs limits abortion regulation to the states. I think the Court simply did not address the extent to which (if any) Congress has power in this area.
Second, I believe current Supreme Court Commerce Clause precedent (which I believe is badly wrong on some points) leaves more room for federal abortion regulation than Hodes allows, though I also think it likely that the Court might overrule or pare back the relevant precedent if the issue comes up. I covered some of these issues here:
Under cases such as Gonzales v. Raich (2005), the Supreme Court has held that Congress’ power to regulate interstate commerce includes the authority to restrict almost any “economic activity,” so long as it has a “substantial effect” on interstate trade. And [in Raich] “economic activity” is defined very broadly to include anything that involves the “production, distribution, and consumption of commodities.” That definition allowed the Court to use the Commerce Clause to uphold a federal ban on the possession of marijuana that had never crossed state lines or been sold in any market (even an intrastate one). Nearly all abortions involve the “consumption” and “distribution” of commodities, such as medical supplies. In addition, most abortions qualify as “economic” transactions because doctors, nurses, and others are paid to perform them.
One could argue that a federal law banning or severely restricting abortions isn’t “really” aimed at regulating interstate commerce. The true motive would be to restrict abortion regardless of whether it involved interstate transactions or not. But much the same can be said for the marijuana ban upheld in Raich, and other federal laws enforcing the War on Drugs. They go far beyond targeting actual interstate trade in drugs, and instead forbid even in-state distribution and possession of illegal narcotics.
If, as is likely, the interstate abortion market expands in the wake of a Supreme Court decision overruling Roe [update: it has indeed done so] Congress could claim that suppression of intrastate abortions is necessary in order to enforce restrictions on those that involve crossing state lines. If abortion is banned in State A, but legal in neighboring State B, that creates an incentive for residents of A to cross into B in order to get abortions—even if the feds enact a ban on such crossing. That ban might be more effectively enforced if abortion were illegal in B as well as A…..
The Commerce Clause rationale for abortion restrictions might not apply to abortions that are performed on a noncommercial basis by staff who provide their services for free. But such cases are only a small percentage of the total. Moreover, in Raich, the Court upheld the ban on Angel Raich’s possession of marijuana even though the producers had in fact provided it to her for free. The theory was that even such completely noncommercial production and distribution of an illegal drug could impact the interstate market.
These…. Commerce Clause arguments may strike some readers as the kind of sophistry that gives lawyers a bad name. I sympathize with that reaction! I hate these arguments myself, and have long argued that Raich is a terrible decision that should be overruled. But this is exactly the sort of reasoning that prevailed in Raich, and provides a constitutional rationale for much of the federal War on Drugs.
As Hodes points out, Justice Clarence Thomas (a man not normally considered a champion of abortion rights!) has suggested (in a 2007 concurring opinion) he believes federal abortion restrictions may go beyond the scope of congressional power. And I think there is a good chance Thomas and at least some other conservative justices would vote to invalidate such laws on federalism grounds, if the issue comes before them. It’s even possible such a law would be invalidated by a coalition of conservative justices who believe it exceeds the scope of federal power, and liberal ones who vote against on individual rights grounds (because they are willing to overturn or limit Dobbs, a precedent they have little respect for).
Finally, for reasons I summarized here, Congress could potentially use its Spending Clause power to restrict abortion by conditioning federal grants to state and local governments on the latter’s willingness to enact abortion restrictions. Of course, states could potentially refuse the grants (and associated conditions), and many blue states might well do exactly that.
Even if a Republican wins the presidency in 2024, it’s far from clear that any federal abortion ban will be enacted anytime soon. Such a law would, among other things, likely have to overcome a filibuster in the Senate (or GOP senators would have to change the filibuster rules). But the idea of a federal ban is mainstream enough to be taken seriously. Thus, it’s also worth considering the constitutional case against it. Hodes has performed a useful service in summarizing it. And, as a pro-life conservative, he cannot easily be accused of just bending the law to support his policy preferences.
Jordan Peterson Hits Back After Canada Forces Him Into “Coaching Program” Over Controversial Statements
Clinical psychologist and Daily Wire contributor Dr. Jordan Peterson has been cast into Canadian outer darkness for thought crimes.
And by Canadian outer darkness, we mean “social media sensitivity training” for his controversial (practical) statements, which a panel of three Ontario Divisional Court judges agreed have been “unprofessional.”
According to court documents, the “coaching program” will require Peterson to “reflect on, and ameliorate [his] professionalism in public statements.”
“The order is not disciplinary and does not prevent Dr. Peterson from expressing himself on controversial topics; it has a minimal impact on his right to freedom of expression,” wrote Justice Paul Schabas.
Peterson, a former professor of psychology for the University of Toronto, went viral in 2016 for a lecture in which he condemned the use of pronouns, and slammed Canadian lawmakers over legislation on gender identity or expression, The Federalist Papers reports, citing the BBC.
In making their decision, the court weighed several of Peterson’s controversial comments to decide if they were in compliance with the College’s Standards of Professional Conduct.
The first example cited by the court was a tweet from Jan. 2, 2022, in which Peterson responded to an individual concerned about overpopulation by stating: “You’re free to leave at any point.”
Less than a month later, during an appearance on “The Joe Rogan Experience,” Peterson reportedly referred to a former client of his as “vindictive,” and said that their complaint against him was a “pack of lies.” In the same episode, while speaking about air pollution and child deaths, Peterson reportedly also said: “it’s just poor children, and the world has too many people on it anyways.”
Another controversial comment of Peterson’s was in response to news of actress Elliot Page, formerly Ellen, identifying as a man and undergoing gender-affirming breast removal surgery.
“Remember when pride was a sin? And Ellen Page just had her breasts removed by a criminal physician,” the June 2022 tweet reportedly read. He was consequently suspended from Twitter for misgendering and “deadnaming” the actor. -The Federalist Papers
Reacting to the ruling, Peterson says he’s perplexed by the contradiction in the court decision which initially acknowledges the “fundamental reality of freedom of speech for Canadians,” only to later stipulate that professional organizations like the College of Psychologists can impose restrictions on such freedoms.
“Not only do I not see what I did wrong, I think what I’ve done on the Public Communication front is my responsibility as a clinician to tell the truth about what I see,” said Peterson, adding “Apparently the college has the right to decide that I can be re-educated forcibly with the risk of my license essentially because I made political statements that the members of the college don’t agree with.”
As Peterson points out, the very fabric of Canadian democracy is now in question. “That shows you all you Canadians who are listening and everyone outside of the country who might be the least bit interested in Canada that shows you exactly what our bloody Constitution is worth.”
“I think I have a responsibility to say what I think and I think many people agree with that and I think the fundamental consequence of that around the world has been massively beneficial to people,” Peterson continued.
“I think Professionals in Canada no longer have the right to express their thoughts which makes which invalidates them as useful professionals.”
The decay of social norms and status quo systems triggering an authoritarian tightening of the screws is a well-worn pattern throughout human history.
What do I mean by Neither Comply Nor Resist? Let’s start by noting society functions by our voluntary compliance with a spectrum of social norms–what’s socially acceptable and unacceptable–some of which are institutionalized into legally defined rules that impose judicial consequences on those who break the rules.
Society breaks down when either set of social norms–the institutionalized judiciary or the cultural norms– loses the voluntary compliance of the vast majority. This dynamic is illustrated by the “broken windows” phenomenon in which a neighborhood decays when windows are broken without enforcement or consequence (i.e. no enforcement of laws forbidding the destruction of others’ property) and the broken windows remain unrepaired (i.e. the social-cultural norms have broken down–the owners and authorities no longer care).
We can observe what happens when so-called petty crimes have no enforcement consequences (crime soars) and social norms of politeness break down (rudeness begets violence).
There is also a spectrum of personal responsibility and choice, from obedience to active resistance. This spectrum applies to both laws and regulations and to cultural norms.
Obeying laws and regulations keeps us out of trouble and maintains social order. If some drivers decide that it’s politically wrong that “red lights” mean stop, their “resistance” messes up life for the rest of us.
The problem, as we all know, is that when the Powers That Be (in any political system) feel threatened, they respond by becoming more authoritarian. They seek to tighten the screws on the populace to make sure nothing gets beyond their control, and they become hyper-vigilant about hammering down any nails that pop up as threats.
Before you know it, there are laws requiring everyone to wear their underwear on the outside of their clothing (an egregious Woody Allen reference). Regulations pile up to the point no one can even keep track or even be aware of them all. And penalties for law-breaking that is perceived as a threat to the Powers That Be increase.
Laws and regulations tend to be enforced asymmetrically along political lines. In the late 1960s and early 1970s, for example, a large percentage of federal law enforcement personnel and attention was focused on draft resisters, to the point that other criminal activity received less attention.
As authoritarian-political pressures mount, the agencies tasked with enforcing laws end up breaking laws to meet the demands of the Powers That Be. This was eventually laid bare in the congressional Church Committee hearings. It turns out institutions that are supposed to be above politics respond to political pressure when the Powers That Be sense their control is weakening / threatened. They turn up the heat on agencies and cashier bureaucrats who resist the politicization of enforcement.
In other words, The Powers That Be tighten the screws on law enforcement and the judiciary as part of the process of tightening the screws on the populace.
Render to Caesar that which is Caesar’s makes excellent sense as authoritarianism increases. Obeying the laws that are supposed to be applied equally to all is both a civic duty (that some are corrupt and get away with it doesn’t diminish our duty) and a strategy for avoiding needless trouble.
Active resistance is precisely what the system is hyper-vigilant about crushing. Trust me, getting called in by the FBI regarding “political crimes” isn’t like TV. You’re alone, and as for counting on being saved by Hollywood-movie heroic lawyers–it’s best not to confuse reality with entertainment. By all means, visit your buddy in the pen after his arrest, but he’s alone and you’re free to leave. If conscience demands resistance, be aware the system loves open resistance because that saves them the trouble of identifying troublemakers.
If it’s a matter of conscience, then be prepared to turn yourself in to start your prison sentence. This is what it takes, this is where it goes, especially for “political crimes,” i.e. crimes against the state, not against individuals. Trust me on this, I have friends who did this, I’ve visited friends after their arrest and gone to their trials in federal court. It’s not TV, it’s real life, with real consequences.
The system incentivizes compliance that isn’t legally binding. There’s no law requiring people to borrow vast sums to attend college, or take out a crushing mortgage to own a house; those are social norms we’re “encouraged” / pressured to comply with.
The point I’m making with Neither Comply Nor Resist is non-compliance and non-resistance are paths to personal freedom and responsibility that have no legal consequence. The individual who doesn’t pop up as a nail (i.e. a threat to The Powers That Be) and who renders to Caesar what is Caesar’s isn’t going to attract a lot of official attention. Fading into the dull-gray background of millions of other people with similar profiles is a practical strategy as social norms break down and authoritarian responses increase accordingly.
It’s called opting out, and it’s been a successful strategy since the waning days of the Western Roman Empire. Don’t want to pay high taxes? Then need less so you can make less money. Low income, low taxes. Start a self-employment enterprise that enables you to legally reduce your net income by expensing legitimate expenses. The less you need, the easier life gets. The healthier you are, the easier life gets. The more you produce and the less you consume, the easier life gets. And so on.
Decaying social norms and systems are more prone to breaking down. If things that were once reliable are no longer reliable or predictable, life gets less easy. The more Self-Reliant we are, the lower our exposure to risk and the downside of system decay.
The decay of social norms and status quo systems triggering an authoritarian tightening of the screws is a well-worn pattern throughout human history. It shouldn’t surprise us to be living this dynamic in real time. We don’t control the decay or the authoritarianism, but we do control our response.
Those who opt out or otherwise reduce their dependence and exposure to risk serve society in several ways. By reducing dependence and consumption, we lighten the load on institutions struggling to maintain services. By prioritizing production over consumption, we’re adding goods and services and not just consuming them. By contributing to networks of other trustworthy, self-reliant people, we’re maintaining positive social norms and setting an example of how life can still be worthwhile and rewarding even as social norms degrade and authoritarian pressures increase.
Student Kicked Out Of Classroom For Wearing Gadsden Flag Patch Because It’s “Racist”
Meet Jaiden, a 12-year-old student at The Vanguard School in Colorado Springs; a charter school which is 90% publicly funded but privately administrated. He wears a Gadsden Flag patch on his backpack to show his support for the ideals of constitutional liberty. However, the Director of Operations at Vangaurd sees that flag very differently.
This student was kicked out for the Gadsden flag on his backpack in Colorado
Using SPLC related talking points and disinformation, the school director cited comparisons to “slavery” and “racism” while noting a connection to “patriot groups” as the reasons why the symbol is “disruptive to class.” Jaiden was removed from his classes unless he leaves his backpack with the Gadsden patch behind.
Meet 12yo Jaiden who was kicked out of class yesterday in Colorado Springs for having a Gadsden flag patch, which the school claims has “origins with slavery.”
The school’s director said via email that the patch was “disruptive to the classroom environment.”
It’s not surprising that the Gadsden Flag, long a symbol of rebellion against tyranny, has become a specific target of the political left and the neocon establishment. The “don’t tread on me” ideal is a foundation of the American Revolution and the founding of the Bill Of Rights, and these are things that the increasingly leftist education system finds distasteful.
The demonization of the flag has ramped up in recent years with the events of January 6th and the spread of far-left indoctrination programs such as Critical Race Theory and gender identity propaganda within publicly funded schools. There are hundreds if not thousands of examples online of BLM, Antifa and LGBT flags hanging in American classrooms, all of them representing a Marxist-rooted agenda of deconstruction, anti-science and anti-merit. But a kid with a Gadsden patch is considered “disruptive” to the educational environment?
Tuesday afternoon, Connor Boyack tweeted an update; Jaiden has decided to return to school with his patch still in place, and will do a sit-in protest if necessary. Meanwhile, two law firms have come forward to assist as necessary. His mother will likely appear on Hannity.
For those asking for an update:
– Jaiden decided to go back to school today. With his patch will in place. He said he’d do a sit-in if necessary to protest.
– Two law firms have stepped forward to assist as necessary to fight the viewpoint discrimination.
The Department of Defense is developing the ability to launch thousands of drones at a time for use in a future war with China, according to top Pentagon officials.
At a conference hosted by the National Defense Industrial Association (NDIA), Deputy Defense Secretary Kathleen Hicks said Washington is initiating a program to launch thousands of land, air and sea drones simultaneously.
“They can be used consistent with our principles of mission command, where we empower the lowest-possible echelons to innovate and succeed in battle,” she remarked about the drone program. “And they can serve as resilient, distributed systems, even if bandwidth is limited, intermittent, degraded, or denied.”
Adm. John Aquilino, head of US Indo-Pacific Command discussed deploying as many as 1,000 drones within 24 hours. “Here’s a metric for me: 1,000 targets for 24 hours,” he said. Hicks said the numbers can be scaled from the thousands to higher numbers in the future.
“We’ll also aim to replicate and inculcate how we will achieve that goal, so we can scale whatever’s relevant in the future again and again and again. Easier said than done? You bet. But we’re going to do it,” she said.
Aquilino explained research for the weapons system is already underway through DARPA. “The components in INDOPACOM have been experimenting now for the last five to 10 years with many of those unmanned capabilities.” He added, “Those will be an asymmetric advantage. So operational concepts that we are working through are going to help amplify our advantages in this theater…there’s a term, hellscape, that we use.”
In recent conflicts – Ukraine, Nagorno-Karabakh and Ethiopia – small drones have played a large role on the battlefield. Washington is in the midst of a massive military buildup in the Indo-Pacific, provoking a potential war with Beijing over Chinese territorial claims to Taiwan and the South China Sea.
President Joe Biden and his two predecessors have invested billions of dollars in developing and deploying more weapons near China’s borders while investing little effort in diplomacy. The American policy of relying on military aggression over talks has sunk Washington’s and Beijing’s relationship to a historic low point.
WTI Extends Gains After API Reports Huge Crude Draw
Oil prices rallied today to one-week highs – despite weak jobs data – as the dollar dived and everything went wildly risk-on. Potential shut-ins from Hurricane Idalia combined with more Chinese stimulus measures trumped news of additional Russian supplies as physical markets continue to show signs of tightness.
“The oil market remains rangebound, with underlying support stemming from continued tightness across fuel products,” said Ole Hansen, head of commodities strategy at Saxo Bank.
The recent draws in Crude (and at Cushing) are expected to continue…
API
Crude -11.486mm (-2mm exp)
Cushing -2.23mm
Gasoline +1.4mm (-1.3mm exp)
Distillates +2.46mm (-500k exp)
Crude stocks drew-down for the 3rd week in a row, plunging 11.5mm barrels last week (perhaps in preparation for Idalia?)…
Source: Bloomberg
WTI was hovering around $81.20 ahead of the API print and extended gains modestly after…
And the higher oil goes, the more pressure down the pipeline for pump prices (and inflation), especially if Idalia shuts down refiners.
For professional fund managers, fading extremes was a very successful, if risky, investing and business strategy. At least in my working lifetime, from 1990 onwards, fund managers that faded the extreme of the 1980s Japanese bubble prospered. In 2000s, fading US and tech, while playing commodities and emerging markets worked best. However, trying to fade the US, and particularly US tech, has been foolish for quite some time.
Michael Hartnett of Bank of America produces “The Flow Show” report which is good. If you can access this, then most major investment banks can and do produce similar products. The one that is most important now, is the outperformance of US stocks to world stocks.
A more nuanced variation of this is the market capitalisation that is taken up by the “Magnificent Seven”. This in essence is saying that from 2016 onwards, these 7 stocks (AAPL, AMZN, MSFT, META, NVDA, GOOGL and TSLA) have dominated returns.
Historically, extreme investor bullishness would show up in net international investment position (NIIP), and much like the above charts has been pointing to extremes that should be faded since 2016. The Eurozone got into trouble when its NIIP was USD4 trillion deficit. the US has been well past that for over a decade.
Even adjusting US NIIP for public and private sector extremes and GDP, we have been well past the private sector extreme seen in 1999. Fading extremes has become a losing strategy.
Why does fading extremes no long work? Well there are some other differences to this US bull market than to the others we have seen. It generates no fiscal surplus. In 1929, the US ran a fiscal surplus. Likewise in 1965, the Nifty Fifty bull market, and in 1999 during the dot com bubble. In 2023, we are looking at 5% of GPD deficit.
Another big difference is that shares outstanding in the S&P 500 is continuing to fall even as valuations and share prices continue to soar.
So how do we put all of these extremes into something that makes sense. Well as I have been pointing out, the US tax systems rewards US corporates for reducing its overseas tax, particularly in Europe. For tech companies, this is particularly easy to do, as core software and brands can be easily housed in tax friendly jurisdictions likes Ireland and Luxembourg. As more and more of the economy has moved digital, this means more and more of the corporate tax base has shifted to a “tax free zone”. This cash cannot be easily returned to US shareholders, as its offshore, but it can be used as collateral for loans to buy back shares. This has the added benefit of being tax friendly for shareholders. In essence. A large chunk of corporate profits are essentially untaxed, but the majority of the companies that have untaxed profits are listed in the US.
This means that even though we look at the Magnificent Seven as US stocks – they are in fact global stocks, that are based in the US for tax reasons. This means that US stocks will always outperform the rest of the world, and that valuation metrics mean little. Fading extremes is a failed strategy. In essence, the US capital markets increasingly dominated by the activities of international tax arbitrage and capital return in a tax efficient manner. And in many way, this realises the dream of both Reagan and Thatcher, and the pro-capital policies they instituted from 1980 onwards. But as Michael Hartnett adds in a chart, real assets have substantially underperformed financial assets. Buying financial assets with the rise of Reagan and Thatcher was very correct.
For me, I think this chart is too broad. The above analysis points to exactly the problem that the “pro-capital” trade suffers from. The richest and most successful firms pay little tax, and the richest and most successful people also pay little tax. As more and more business is digitised and moved into this “tax free zone” at some point governments will be forced to act. Most likely when the relative value of government credit deteriorates. For me, this is what the gold versus treasury return index is already indicating. This has a far more bullish (or bearish) chart that Hartnett’s.
One reason that US stocks continue to do well is that the magnificent seven have done a great job in pushing back government initiatives to tax them more, or to break them up (in stark contrast to China). But one day, politicians will have to choose between taking on corporates, or being voted out of power. And if there is one thing politicians love more than money, its power. Also corporates are violating my first rule of a happy life. Always give when you can, because if you force people to take, they take far more than you would have needed to give. US corporate tax policy is a short sighted policy that is headed for failure.
Earlier this year, President Biden issued an Executive Order seeking to “modernize the regulatory process to advance policies that promote the public interest and address national priorities.” Among other things, this EO called upon the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) to revise OMB Circular A-4, which provides agencies with guidance as to how they should conduct regulatory analysis when considering and proposing new regulations.
As called for in the EO, OIRA has proposed a range of revisions to Circular A-4 to update its requirements. Many of the changes are welcome revisions. Others, however, have prompted concerns, particularly with regard to how the revisions would affect cost-benefit analyses of proposed agency regulations.
On Monday, all former Presidents of the Society for Benefit-Cost Analysis submitted a letter to OIRA identifying concerns with the proposed revisions that, in their view, could unnecessarily politicize cost-benefit analyses, and reduce the value of centralized executive branch review of agency regulations. They write:
Circular A-4 (OMB 2003) provides guidance to agencies for considering the impacts of alternative regulatory actions as required by Executive Order 12866 (Clinton 1993). That order directs agencies to “promulgate only such regulations as are required by law, are necessary to interpret the law, or are made necessary by compelling public need, such as material failures of private markets to protect or improve the health and safety of the public, the environment, or the well-being of the American people.” It further directs agencies to “assess all costs and benefits of available regulatory alternatives, including the alternative of not regulating,” and to “select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity), unless a statute requires another regulatory approach” (Clinton 1993, Sec.1.a). It recognizes that all significant impacts should be considered, although some may be difficult to quantify or monetize.
E.O. 12866 and Circular A-4 have proven durable across different presidential administrations2 because they are based on objective and nonpartisan principles and are designed to provide information to policymakers on an important dimension of policy decisions—the efficiency of different approaches to achieving policy goals. It is appropriate to update the Circular to reflect new data and advancements in economic understanding of regulatory impacts over the last 20 years, and we commend OMB for its efforts. However, to retain the Circular’s acceptance and stability, it will be important not to stray from widely accepted principles and methods.
The proposed revisions contain worthwhile updates, but also some guidance that deviates from the best available current economic science. To the extent that the Circular is perceived as not being neutral, or as embedding practices that favor certain policy preferences, it risks the stability of the longstanding bipartisan support for regulatory impact analysis. . . .
Some of the proposed changes depart from widely accepted practices, principles, and evidence, and could be perceived as favoring particular policy preferences. If that is the case, a future administration with a different set of policy preferences would likely replace this circular with another designed to support its preferred policies, leading to wide swings in regulatory actions. We believe that after 20 years, revisions to Circular A-4 are appropriate and timely. However, we also believe that the Circular should have bipartisan support and not be subject to revision with each incoming administration.
Among the particular concerns raised in the letter is the proposal to weight cost-benefit analyses to account for particular normative concerns, such as the potential distributional consequences of proposed regulations. While consideration of such concerns is appropriate when making policy, the letter writers warn, it distorts the role of cost-benefit analysis to embed such value judgments in what is supposed to be a neutral assessment of a regulatory measure’s expected impacts.
Two of the letter’s signatories, Susan Dudley and W. Kip Viscusi, make a similar point in a WSJ op-ed:
OMB’s draft revisions to longstanding guidance stray from widely accepted principles and methods in several areas, including by assuming individuals don’t act in their own best interests (and that regulators know better), by counting global effects instead of distinguishing between domestic and foreign ones, by “weighting” impacts by income to exaggerate their benefits to low earners, and by lowering the discount rate to create a better benefit-cost picture of costly regulations that promise future benefits.
Each of these changes would embed values other than economic efficiency in the benefit-cost analysis, rather than encourage career staff to present the best evidence and leave value judgments to politically accountable officials. OMB’s draft opens the door to putting scientific-sounding numbers on inherently qualitative values like social justice, environmental stewardship and human dignity. That would vitiate the transparency and integrity of regulatory-impact analysis, which for decades has served as a ballast across administrations with widely varying policy objectives.
The argument here is that cost-benefit analyses should inform regulatory policy decisions, not determine them, and for cost-benefit analyses to play that role, they should not embed contested normative assumptions.
For more on the proposed changes to Circular A-4 and other Biden Administration proposals to modernize regulatory review, check out the Yale Journal of Regulation Notice & Comment Blog’s symposium on the subject, which contains a range of views from multiple perspectives.
