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The Volokh Conspiracy

Will the Marks Rule Inter Two of Justice Kennedy's Decisions from OT 2015?

Fisher II had a four-member majority. And at least one court read June Medical as overruling WWH in part.

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At the end of Blue June, I wrote that the Roberts Court was slowly interring Justice Kennedy's ephemeral "Jurisprudence of Doubt." Specifically, the Court buried Boumediene, Whole Woman's Health, and Trinity Lutheran Footnote 3.

Now, an Eighth Circuit panel has used the so-called Marks Rule to find that there were five votes in June Medical to overrule the cost/benefit framework from Whole Woman's Health. In effect, WWH overruled Casey in part, and June Medical restored the Casey framework. When abortion caselaw reaches the Supreme Court, the Chief could credibly argue that part of WWH is already overruled, and that Casey is the governing precedent–only burdens, and not benefits will be considered. That sort of holding would be so confusing that no one would really understood what happened. I don't envy newspaper headline writers: Roberts Court upholds Roe and Casey, but finds that June Medical already overruled Whole Woman's Health.

I think the Chief will pull a similar move on affirmative action. Fisher II was decided by a seven-member Court. Justice Kagan recused, and Justice Scalia passed away. The majority had only four votes. In the Barnett/Blackman casebook, we pose the question of what is the value of a four-member majority? Not much. Indeed, Fisher II effectively expanded upon Grutter. In a way, Fisher II overruled part of Grutter by watering down the strict scrutiny standard. Likewise, according to the Chief, WWH made a similar move, and overruled part of Casey by strengthening the standard of review. Arguably, Casey and Grutter without taking any further action to overrule precedent.

In July, I hinted at this future:

In short, the Chief's judicial humility requires standing by decisions that he thinks lack humility. But only some of those decisions. Roberts will stand by Planned Parenthood v. Casey, but will not stand by Whole Woman's Health. In the future, I suspect he will stand by Grutter v. Bollinger, but will not stand by Fisher v. University of Texas, Austin II. And so on.

And the Marks rule could help the Chief reach that conclusion. I am not sure where Justice Gorsuch would fall with this question. His Ramos opinion raised some difficult questions about stare decisis and the Marks rule. See my post from April.

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  1. There’s something very catholic about the tense, baroque machinations and intrigue being put in to reach a predetermined result that everyone already saw coming several years ago.

    But I’m sure the other soccer dads will all be shocked, so there’s that, I guess.

  2. Fisher II didn’t specifically change any doctrine (and the result was more or less the same as Grutter — that is, defer to the university). Basic v. Levinson was a 4-2 decision, and it held up pretty well. Fisher II may or may not last, but it won’t have anything to do with the fact that it was a 4-3 decision.

  3. As noted in the Grutter findings of fact at the trial court and as noted by Thomas in his dissent, the “critical mass” was a blatant & obvious quota. It took the CA6 de nova, to accept the UM pleadings at face value as if it were true to support the bakke standard.

  4. Why is the Chief let off the hook re: judicial humility? I’m not sure why anyone should give him the benefit of the doubt when he’s shown himself to be very willing to reverse precedent (some quite longstanding): Janus, Shelby County, Citizens United, Heller, and those are just a few, and don’t even touch on dissents He wrote or joined that would have overturned precedent if he had the votes.
    Isn’t it more reasonable to assume that he overturns precedent when he likes the result or feels it’s necessary to “protect the court,” and clings to state decisis when he likes the old rule or feels that a change would put the court in danger? (I assume that is the case with June Medical, but maybe he has shifted left on abortion. Wasn’t his wife involved in pro-life organizations back in the day, or am I misremembering something from his confirmation?)

  5. I’m being practical, not legal here:

    1: Is there a case that could go to SCOTUS in FY-2021? The First Circuit hasn’t ruled on SFFA’s appeal on the Harvard case yet, and their suits in TX & NC are at the trial level. There would also be a year delay between cert and hearing, hence I don’t see any SCOTUS ruling on Affirmative Retribution before June 2023 at the earliest.

    2: Notwithstanding the above, can you imagine a SCOTUS ruling ending (or even restricting) Affirmative Retribution in the current political (protest) environment?!? The radicals would burn the campi flat, if not the whole country.

    3: The thing being overlooked here is that the two groups that Affirmative Retribution most helps are White Women and Immigrants — while initially intended to help Black men, they really don’t benefit from it very much. Nationally, the female/male ration of Blacks in higher ed is at least 2:1 and getting worse.

    4: Back in her infamous 2002 ruling, Justice O’Connor said that Affirmative Retribution could end “in 25 years” — that would be 2027. Now if one wants to be loyal to precedent, “in 25 years” means “in 2027” and to what extent, if any, is that a mandate?

    5: What will higher ed even look like a year from now? Will it implode the way that the railroads did? And if so, will admissions decisions even be relevant anymore? A full fifth of Harvard’s freshmen are taking a year off, I can’t help but think it will be higher elsewhere…

    1. 3. The legal basis for affirmative action in higher ed post-Bakke is not ‘compensation’ (much less ‘retribution’) but this: the goal of these institutions is to prepare students for a diverse world and marketplace and having a diverse student body furthers that goal. So as to who it ‘helps’ the answer is: everyone, but *especially* non-underrepresented groups because it helps them get acquainted with the kind of diversity they are going to experience in the ‘real world.’

      4. Ginsburg and Breyer had a separate concurrence not signing on to the 25 year quote, so likely no ‘mandate.’

      5. Methinks this is wishful thinking on your part: lots of institutions outside of higher ed (businesses, churches, sports, etc.,) are experiencing dramatic challenges this year, do you see them ‘imploding’ too?

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"Dance Like Nobody's Watching. Tweet Like It's Going to Be Read Aloud at Your Trial"

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Excellent advice from Bill Dyer.

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  1. Social media, like hard drugs should be made illegal.

    Its creating, or revealing, dangerous mental illnesses and objectively harming or enabling harm to society.

    1. Social media, like hard drugs should be made illegal.

      A little hard to parse that, but if you are saying that social media should be as illegal as hard drugs, I agree: both should be entirely legal for consenting adults. Neither is anybody else’s business.

      1. Wtf, now I love multi-national corporations interfering with our elections!

        1. If only there were some choice that could be made to not rely on a platform and infrastructure you do not have any control over.

          Unless you want to argue twitter is a monopoly. Do you want to do that? Because if you want to tighten up antitrust rules so that twitter falls under them, that would be fine by me.

          1. We actually agree on something…..

            And how is Twatter or Farcebook any different from Ma Bell?
            And that got broken up 40 years ago, as did Standard Oil before it.

            1. It’s pretty different – under current antitrust rules. Required infrastructure versus one application among many without even a particularly dominant market share.

              But I will not weep for twitter if we beef up our antitrust laws to include it!

              1. Not so on required infrastructure.

                Remember that SPRINT was the Southern Pacific Railroad Internal NeTwork — its infrastructure was the lines that ran along all of its tracks (and the microwave installations that were starting to replace them). SPRINT initially was the railroad selling excess capacity in its network. And MCI was often referred to as “the law firm with a microwave dish on the roof” — MCI won the SCOTUS case that required Ma Bell to permit private equipment be connected to its network if it met specs.

                And there were (and still are) a lot of private local telephone companies in rural areas.

                1. Sure – it’s not even clear AT&T would have been found in violation.
                  They settled before we could find out.

                  But their monopoly was vastly more clear than Twitter’s, whose market share is hard to define, and whose behavior is less clearly anti-competitive.

                  Do I think Twitter is too big? I do. But I think that about many, many corporations. After too big to fail there should have been some government-mediated carnage of megacorps.
                  But there has not been. And while both parties are more captured by business than I’d like, guess which one defanged the DoJ’s antitrust branch, and which one still touts itself as pro business.

                  BTW you want to cut businesses down to size, look into unionization. Giving Silicon Valley employees some say in how they are treated would probably prevent at least some of the corporate excesses we see.

                  1. No. When they are able to decide — nationally — that certain things won’t be allowed to be said in a certain type of forum and it serves to [revent even the POTUS (regardless of who he/she/it is) from saying it, that is the monopoly of a means of interstate communication.

                    1. That’s ridiculous, as expected from such nakedly outcome-oriented reasoning.
                      ‘A certain type of forum’ is way insufficiently specified. As written it could mean literally any forum at all.

                      I put up a soapbox, I guess I’m a monopoly.

                      To be less silly and outcome oriented, the key is the ubiquity and market dominance of said forum.
                      Which means standard antitrust can and should apply, albeit with a narrower definition of market than currently.

    2. I more fear the control that a few companies increasingly have over communication. AND their ability to police it for political content — the media may have “beeped” a few words Nixon said (e.g. “damn” — it was a more innocent era) but they didn’t censor him.

    3. “Social media, like hard drugs should be made illegal.”

      Censorship-loving, prudish, authoritarian, white nationalist clingers are among my favorite culture war casualties.

      1. This clown right here has zero self awareness.

    4. New social media, especially Twitter is a plague on society. Every ‘feature’ from the character limit, Likes, to Retweets, to hashtags, to especially the centralized control and manipulation by Dorky et al are designed to encourage mindless group think. At least Farcebook for all its faults mostly vacuums up data and doesn’t actively make society worse to such a degree. Historians will look back the death of old social media ie the decentralized forums and chatrooms for the new centralized social media platforms as one of the worst changes of the internet. And places such as Twitter as one of the worst things to come out of this.

  2. Typical lawyer advice. Add suspicion and unnatural caution to all our activities no matter how personal or private.

    1. You do realize we are talking about Twitter. Where the inanities are being broadcast to millions who might be interested. If it’s “personal or private,” maybe you should not be putting it on Twitter.

    2. The scary thing about our increasingly digital forms of communication is that they *never* disappear. A love letter written 40 years ago exists only if the recipient kept it, an analog phone call exists only in that person’s memory.

      That’s not true of digital data — there are so *many* copies of it that you need to presume that it’s never really going to disappear. It remains on your computer even after you erase it, it remains in archival log files and then there is whatever the NSA is doing.

      Justice Kavanaugh had paper calendars from the 1980s — a future nominee will be dealing with gigabytes of archival data that probably is already being maliciously kept by partisan activists on both sides of the spectrum.

      Regardless of what one thinks of either man, both Jerry Falwell Jr. and Al Franken were undone by an intemperate photograph taken as a “joke.” (Personally, I think Franken was worse because the woman was asleep — Fallwell involved a pregnant woman unable to fasten her shorts over her baby bulge.)

      But it’s on twitter: https://twitter.com/RobDownenChron/status/1290134409757130754/photo/1

      My point: 40 years ago, that would have been an analog snapshot that might have (maybe) wound up in a photo album or pinned to someone’s bulletin board. But now the whole world has it, and will 40 years from now as well….

  3. A great example of this advice comes in the recent S.D.N.Y. decision Hughes v. Benjamin. One of the parties was seriously out there Tweeting and commenting loudly on their on-going case! She eventually had to pay atty’s fees for the other party.

  4. Dance like nobody’s watching.

    ‘Cause they’re not.

    They’re all staring at their phones.

  5. What about posting on the VC?

    1. Post like Leonard Leo is watching.

      1. I know I always comment like George $oros is watching. His checks put me through law school!

        1. Soros pays me to monitor this blog.

          1. I don’t think AK is joking here…

          2. Huh. I always thought you were Soros!

            1. Soros pays me for reverse-agit prop….

  6. Or just don’t do social media especially Twitter. The platform is the definition of an echo chamber. Instead put down the phone and take a nice long walk.

    1. ‘I don’t even own a television’ for the new age!

      1. I gave away my television 5 years ago and don’t regret it.

  7. The Vegas motto is advertising; ‘social media’ is the real deal.
    What happens on the web, stays on the web – forever.

    1. Unless you post something on Facebook or another social media platform that they want to delete. Then it disappears pretty quickly…

  8. I used to be on Twitter and Facebook. I quit both of them out of both privacy concerns and because they were massive time wasters. And I don’t miss them. My social media advice is to get off and stay off.

    1. Never Twitter.

      Facebook’s useful for family photos and/or events. Not politics.

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Today in Supreme Court History

Today in Supreme Court History: August 9, 1974

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8/9/1974: President Richard Nixon resigns from office, President Gerald Ford takes oath of office.

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  1. The first in a line of dim Republican Presidents and the only one for whom being thought of as not very smart was an electoral handicap and not an advantage.

    1. Having read excerpt’s of Ford’s journals, the guy was sharp.

      Anti-intellectualism on the right is of a Nixon vintage, IMO. Long-hairs at the schools. Then Reagan and Berkeley and we were off down the slope to Harvard educated Republicans arguing school is bad, actually.

      1. The comment was “thought of as not very smart.”

        Ford was bright — bright enough, at least — but often considered something of a dullard. He was a standout athlete yet roundly parodied as comically clumsy. He tended toward being a moderate but is perhaps best known for the partisan act of pardoning Nixon. He was an early social justice warrior but presided over a political party that stoked bigotry toward blacks, gays, and women. He was known as Gerald Ford after being born Leslie King.

        Gerald Ford, the public man, was an enigma in a number of ways.

        1. Nice comment. And fair observation about capt’s point.

    2. Ford lost because as a congressman he supported civil rights legislation while Carter had a more ambiguous civil rights record.

      Btw, Carter and Trump are examples of outsider/fluke presidents that failed because they had trouble staffing up with loyalists whereas Jackson and Reagan were successful outsiders because 4 years before they became president they showed they could win the presidency and thus were able to cultivate a group of advisers loyal to them and not the party establishment. So Bush and James Baker knew that Reagan was the guy to hitch their wagon to to get to the top.

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The Statutory Authorization for President Trump's Memorandum Deferring Payroll Tax Obligations

26 U.S.C. 7508A gives the Secretary the authority to "specify a period of up to 1 year that may be disregarded in determining, under the internal revenue laws, in respect of any tax liability of such taxpayer" whether the "Payment of any income, estate, gift, employment, or excise tax or any installment thereof or of any other liability to the United States in respect thereof" was "performed within the time prescribed therefor . . . of such disaster or action."

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Yesterday, I blogged about President Trump's Payroll Tax Deferral Memorandum. I'll presume familiarity with the mechanics of the memorandum. This post will consider whether the President has the statutory authority to implement this memorandum.

There are three primary statutes referenced in the memorandum.

Sec. 2.  Deferring Certain Payroll Tax Obligations.  The Secretary of the Treasury is hereby directed to use his authority pursuant to 26 U.S.C. 7508A to defer the withholding, deposit, and payment of the tax imposed by 26 U.S.C. 3101(a), and so much of the tax imposed by 26 U.S.C. 3201 as is attributable to the rate in effect under 26 U.S.C. 3101(a), on wages or compensation, as applicable, paid during the period of September 1, 2020, through December 31, 2020, subject to the following conditions.

I'll consider these three statutes in reverse order.

First, 26 U.S.C. 3101(a) imposes a 6.2% payroll tax:

In addition to other taxes, there is hereby imposed on the income of every individual a tax equal to 6.2 percent of the wages (as defined in section 3121(a)) received by the individual with respect to employment (as defined in section 3121(b)).

Second, 26 U.S.C. 3201 establishes the percentage of compensation for certain taxes. It provides, in relevant part:

In addition to other taxes, there is hereby imposed on the income of each employee a tax equal to the applicable percentage of the compensation received during any calendar year by such employee for services rendered by such employee.

Third, 26 U.S.C. 7508A is the most important provision. The section is titled, "Authority to postpone certain deadlines by reason of Presidentially declared disaster or terroristic or military actions." The IRS relied on this statute to extend the filing date for income taxes from April 15 to July 15.

Section 7508A(a) provides:

In the case of a taxpayer determined by the Secretary to be affected by a federally declared disaster (as defined by section 165(i)(5)(A)) or a terroristic or military action (as defined in section 692(c)(2)), the Secretary may specify a period of up to 1 year that may be disregarded in determining, under the internal revenue laws, in respect of any tax liability of such taxpayer—

(1) whether any of the acts described in paragraph (1) of section 7508(a) were performed within the time prescribed therefor (determined without regard to extension under any other provision of this subtitle for periods after the date (determined by the Secretary) of such disaster or action),

(2) the amount of any interest, penalty, additional amount, or addition to the tax for periods after such date, and

(3) the amount of any credit or refund.

There are a few relevant cross references. Section 165(i)(5)(A) refers to 26 U.S.C. 165(i)(5)(A). That section provides:

The term "Federally  declared disaster" means any disaster subsequently determined by the President of the United States to warrant assistance by the Federal Government under the Robert T. Stafford Disaster Relief and Emergency Assistance Act.

In this case, President Trump has declared a disaster pursuant to the Stafford Act.

Section 7508(a) refers to Paragraph 1 of 26 U.S.C. 7508(a). This section provides that certain tax deadlines may be postponed when a person is serving in a combat zone. But more important are the eleven specific acts listed in Paragraph 1 of Section 7508(a). They are:

(A) Filing any return of income, estate, gift, employment, or excise tax;
(B) Payment of any income, estate, gift, employment, or excise tax or any installment thereof or of any other liability to the United States in respect thereof;
(C) Filing a petition with the Tax Court for redetermination of a deficiency, or for review of a decision rendered by the Tax Court;
(D) Allowance of a credit or refund of any tax;
(E) Filing a claim for credit or refund of any tax;
(F) Bringing suit upon any such claim for credit or refund;
(G) Assessment of any tax;
(H) Giving or making any notice or demand for the payment of any tax, or with respect to any liability to the United States in respect of any tax;
(I) Collection, by the Secretary, by levy or otherwise, of the amount of any liability in respect of any tax;
(J) Bringing suit by the United States, or any officer on its behalf, in respect of any liability in respect of any tax; and
(K) Any other act required or permitted under the internal revenue laws specified by the Secretary;

The most important act is subparagraph (B): "Payment of any income, estate, gift, employment, or excise tax or any installment thereof or of any other liability to the United States in respect thereof."

Let's put these sections together. 26 U.S.C. 7508A gives the Secretary the authority to "specify a period of up to 1 year that may be disregarded in determining, under the internal revenue laws, in respect of any tax liability of such taxpayer" whether the "Payment of any income, estate, gift, employment, or excise tax or any installment thereof or of any other liability to the United States in respect thereof" was "performed within the time prescribed therefor . . . of such disaster or action."

Does the act in subparagraph (B) embrace the acts referenced in the memorandum: "withholding, deposit, and payment" of payroll taxes? I am not familiar enough with the mechanics of how payroll tax "withholding, deposit, and payment" works. But if those actions fit within subparagraph (B), then the Secretary can postpone the deadlines for up to a year. The memorandum only includes a four month extension (from September 1, 2020 through December 31, 2020).

These are my tentative thoughts. Please email me if you have a better grasp of tax law than I do.

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  1. Alternatively, Trump could use prosecutorial discretion and create tax sanctuaries.

    That would be easier, and definitely more legal.

  2. I had dinged Prof. Blackaman for not discussing the legalities of the EOs. I should have known more was coming.

    I also thought these EOs were much broader than they are. Foolish of me to take the Admin at it’s word.

    Not that this payroll nonsense isn’t awful, awful policy – a payday loan only for those currently working and with social security as collateral, but here we are.

    1. I had also dinged the blackman kid earlier for not discussing the legalities. He has at least done a better job in the last couple of posts. My apologies for jumping on the blackman kid.

      Perhaps more imminently relevant than either legality or political strategy is the implementation and practicability of these measures inasmuch that they actually get funds into the hands of a majority of the intended recipients within a reasonable period of time. Both David Super and Jim Tankersley see substantial logistical hurdles to speedy implementation and practicability.

      If the money doesn’t start landing into the hand of recipients fairly soon, trump’s opponents needn’t file any legal challenge, they can just wait, gaining leverage with each new day of misery. If the money does flow quickly, then the blackman kid’s boy (trump) wins and shows that it’s good to be the king in America.

  3. I don’t think it’s a good idea for Presidents to have this much discretion. But as soon as people started attacking the EO as clearly unconstitutional, I figured there was probably going to turn out to be some decent statutory basis for the action.

    That’s the way it has usually gone, whether it’s funding for the Wall, or whatever.

    1. That’s been my impression too, with the take-away being that those who defend political power really have no idea how much has been granted; their real, unstated, complaint is who the President is, rather than how much power he has.

      Reminds me of people who complain about police running rampant, then propose to fix it with new government powers. The problem is not the power police have or how badly they behave nearly so much as that the government simply intrudes far too much into private life.

      1. ” their real, unstated, complaint is who the President is, rather than how much power he has.”

        Yup, that was my point: They leap to declare his actions unconstitutional, without performing the due diligence they’d feel necessary in the case of another President. It’s because they have so much contempt for him they assume he’d walk into an obvious legal defeat, without even realizing it.

        Trump’s greatest political asset is his foes’ contempt for him.

  4. I am not familiar enough with the mechanics of how payroll tax “withholding, deposit, and payment” works.

    Here you go.

    1. That’s a good link but it does not address a fundamental question about this EO. Which is that it a deferrment not a relief.

      It is intended to help Trump’s reelection at the expense of whatever president is in office next year when the “loan” is to be repaid. If it is Trump then he is already re-elected and he can blame the fallout on the Democrats. If it is Biden then it isn’t Trump’s problem and everyone will blame the Democrats.

      1. That’s a good link but it does not address a fundamental question about this EO.

        True.

        I was just telling Blackman where to get the information he lacks, and maybe suggesting that it’s pretty easily accessible if he wants it.

        1. I was just telling Blackman where to get the information he lacks, and maybe suggesting that it’s pretty easily accessible if he wants it.

          There’s often considerable distance between “easily accessible” and “easily digestible.” As is often the case in the regulatory world, there are lots of higher-level overviews of this subject that don’t require navigating dozens of pages of language not written with clarity as a primary goal.

          1. there are lots of higher-level overviews of this subject that don’t require navigating dozens of pages of language not written with clarity as a primary goal.

            True, and a Google search will turn up a lot of them.

            Though I will add that lawyers complaining about lack of clarity in documents do not excite my sympathies.

  5. It was simple common sense that deferring collecting taxes doesn’t raise the same kind of issues as spending money that hasn’t been appropriated. It seems that the statutes explicitly permit this. Still, it leaves employers ordinarily responsible for withholding their employees’ share and contributing their own in a pickle.

    1. The difficulty here is that employers are likely to continue withholding payroll taxes despite the deferral.

      They are, after all, going to have to pay them sometime, and if they haven’t collected the money as they go along they are going to have a big mess on their hands when that day comes.

      So really, all this will do is give employers an interest-free loan from the government.

      1. Paid for out of social security funds.

      2. So, the trump/kudlow/stephen.moore brain-trust didn’t anticipate this effect, or they did and their goal was just to provide an interest free loan to employers and not necessarily help employees now?

        Or maybe this is just an opportunistic chance to start to bring down social security sooner rather than later?

        1. My guess is that they didn’t think about it, or if they did they didn’t care.

          The point, after all, was to put out something they could spin as helping workers, whether it accomplished much or not.

          Or maybe this is just an opportunistic chance to start to bring down social security sooner rather than later?

          I don’t think so. These guys aren’t that smart. Not close.

  6. For all the lefties crying foul, makes me remember when Obama would use executive orders every time he couldn’t get something through Congress and they would cheer. Funny how tables turn in the realm of politics…

    1. There is a lack of consistency about EOs all around. Will anyone other than Ben Sasse maintain a consistent position about EOs across administrations of different parties?

      1. Probably not because follow principles and being consistent makes you a loser in the power plays that are modern politics.

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The Statutory Authorization for President Trump's Disaster Relief Memorandum

42 U.S.C. 5174(e)(2): "The President, in consultation with the Governor of a State, may provide financial assistance" to "an individual or household in the State who is adversely affected by a major disaster" to address "other necessary expenses or serious needs resulting from the major disaster."

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Yesterday, I blogged about President Trump's Memorandum on Authorizing the Other Needs Assistance Program for Major Disaster Declarations Related to Coronavirus Disease 2019. I'll presume familiarity with the mechanics of the memorandum. This post will consider whether the President has the statutory authority to implement this memorandum.

There are three primary statutes referenced in the memorandum.

First, the starting point is 42 U.S.C. 5191(b). This statute authorizes the President to declare a national emergency:

The President may exercise any authority vested in him by section 5192 of this title or section 5193 of this title with respect to an emergency when he determines that an emergency exists for which the primary responsibility for response rests with the United States because the emergency involves a subject area for which, under the Constitution or laws of the United States, the United States exercises exclusive or preeminent responsibility and authority. In determining whether or not such an emergency exists, the President shall consult the Governor of any affected State, if practicable.

And President Trump issued such a declaration in March 2020. The memorandum recites:

On March 13, 2020, I declared a national emergency recognizing the threat posed by COVID-19.  I also determined that same day that the COVID-19 outbreak constituted an emergency, of nationwide scope, pursuant to section 501(b) of the Stafford Act (42 U.S.C. 5191(b)).

Second, 42 U.S.C. 5191(b). references 42 U.S.C. 5193. This provision limits the amount of federal assistance to 75% of the eligible costs.

The Federal share for assistance provided under this subchapter shall be equal to not less than 75 percent of the eligible costs.

Third, 42 U.S.C. 5174(e) authorizes the President, in consultation with a Governor, to provide financial assistance during a major disaster. It provides:

(e) Financial assistance to address other needs

(1) Medical, dental, child care, and funeral expenses

The President, in consultation with the Governor of a State, may provide financial assistance under this section to an individual or household in the State who is adversely affected by a major disaster to meet disaster-related medical, dental, child care, and funeral expenses.

(2)Personal property, transportation, and other expenses

The President, in consultation with the Governor of a State, may provide financial assistance under this section to an individual or household described in paragraph (1) to address personal property, transportation, and other necessary expenses or serious needs resulting from the major disaster.

The statute does not define what "other necessary expenses are." The statute also does not define what it means to have "serious needs resulting from the major disaster." The President interpreted those phrases to refer to "lost wages assistance" that result from the COVID disaster he declared. The memorandum recites:

To help meet the needs of the American people during this unprecedented and continuously evolving public health crisis, the Secretary of Homeland Security (Secretary), acting through the FEMA Administrator, is authorized to make available other needs assistance for lost wages, in accordance with section 408(e)(2) of the Stafford Act (42 U.S.C. 5174(e)(2)) ("lost wages assistance"), to the people of a State, including the members of any tribe residing therein, if the Governor requests lost wages assistance and agrees to administer delivery and provide adequate oversight of the program, for a major disaster I declared pursuant to section 401 of the Stafford Act (42 U.S.C. 5170) for COVID-19, under the following conditions

This authorizations seems to fit within the confines of Section 5174 (e)(2). "The President, in consultation with the Governor of a State, may provide financial assistance" to "an individual or household in the State who is adversely affected by a major disaster" to address "other necessary expenses or serious needs resulting from the major disaster."

The source of statutory authority for this policy is orders of magnitude clearer than the statutory authority for DACA. President Obama's executive action relied on general provisions of the Immigration and Nationality Act. First, the government cited 6 U.S.C. § 202(5), which authorizes the secretary of homeland security to "[e]stablish[] national immigration enforcement policies and priorities." Second, the government invoked 8 U.S.C § 1103(a), which charges the secretary "with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens." Trump has relied on a specific statute that references making payments, in consultation with a Governor, for necessary expenses that result from a disaster.

What is the contrary argument? At Balkinzation, David Super makes a structural argument. Congress provided elsewhere for specific rules for Disaster Unemployment Assistance (DUA). 42 U.S.C. 5177(a) provides:

The President is authorized to provide to any individual unemployed as a result of a major disaster such benefit assistance as he deems appropriate while such individual is unemployed for the weeks of such unemployment with respect to which the individual is not entitled to any other unemployment compensation (as that term is defined in section 85(b) of title 26) or waiting period credit.

David writes:

[Section 5177], however, comes with two conditions that the President's program violates. First, FEMA may only provide DUA to those who are not eligible for any other form of unemployment compensation.  The President's program, by contrast, is limited to those who are receiving other unemployment benefits.  And second, the statute caps DUA benefits at the amount that state UC programs would allow.

Trump's memorandum expressly applies to people who are eligible for regular unemployment compensation. Indeed, the memorandum applies to people who are "partially unemployed due to disruptions caused by COVID-19." That could extend to people who are still employed, but have had their hours reduced due to furlough. Without question, the financial assistance in Trump's memorandum would apply to people who are not eligible for DUA.

David writes that Section 5174(e) cannot be read "in isolation." Instead, he contends, "Congress has provided clear instructions for how the Disaster Relief Fund may be used for unemployment benefits" in Section 5177(a). Therefore, he concludes, "the President's action effectively reads those conditions out" Section 5177(a).

David's argument is a familiar one. It is one I have made many times before. One statute should not be read to create a conflict with another statute. In the past, I argued that DACA allowed the President to disregard specific provisions of the Immigration and Nationality Act concerning work authorization. (See the amicus brief I filed in Regents).

A similar argument could be made for Trump's memorandum:  Section 5174(e) should not be read to be in conflict with Section 5177(a). The statutes must be read in harmony with one another. To borrow from the Trump v. Hawaii dissent, Congress established a "finely reticulated" method for providing disaster unemployment assistance in Section 5177(a). Therefore, Section 5174(e) should not be read to authorize the President to sidestep those rules, and pay what is in effect unemployment compensation.

How can we harmonize these two statutes? President Trump's memorandum hints at the answer. The memorandum does not refer to the "financial assistance" as unemployment compensation. The memorandum refers to the "financial assistance" as "lost wages." He uses that phrase over and over again.

To provide financial assistance for the needs of those who have lost employment as a result of the pandemic, I am directing up to $44 billion from the DRF at the statutorily mandated 75 percent Federal cost share be made available for lost wages assistance to eligible claimants…

In short, Trump views "lost wage assistance" as something above, and beyond unemployment compensation. Critics (and perhaps litigants) will argue that Trump is manufacturing an artificial distinction as a means to ignore Section 5177(a). Trump is simply relabeling "unemployment compensation" as "lost wages" to get around the harmonious reading canon.

Will Trump's argument work? I think so. Trump v. Hawaii rejected the dissenter's argument that the travel ban bypasses Congress's "finely reticulated" system of regulating entry. I was sympathetic to that statutory argument. But the legal framework supporting this memorandum is far stronger for the President than the capacious travel ban statute. And the statutory authorization here is much, much clearer than the scattered INA provisions at issue in DACA. Trump relies on a specific statute that lets the President provide financial assistance to people affected by disasters. Presumably, those people could be individuals who are eligible for unemployment compensation. And there are specific criteria the Governor has to comply with. We are not dealing with boundless discretion. Under a fair reading of the statutes, the financial assistance in Section 5174(e) would be separate from disaster unemployment assistance in Section 5177(a).

Do I like this outcome? No. Congress has given the President far too much discretion. My reaction to this order resembles my initial reaction to Trump's wall policy: Congress needs to reassert its power of the purse. But based on my initial review, this memorandum stands on a plausible statutory footing. And, I am not sure who would have standing to challenge. The funding only kicks in after a Governor makes the request. No state is required to make the request. And any litigation that tries to enjoin this financial assistance will be political suicide.

Again, these thoughts are tentative. Please email me if I missed anything.

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  1. Second, 42 U.S.C. 5191(b). references 42 U.S.C. 5193. This provision limits the amount of federal assistance to 75% of the eligible costs.

    “The Federal share for assistance provided under this subchapter shall be equal to not less than 75 percent of the eligible costs.”

    Looks to me like 75% is a floor, not a ceiling. What am I missing?

    1. Leo Marvin — The very question I intended to ask.

  2. The order specifically relies on the unemployment system and uses employment eligibility to determine who does and does not get the money, so the “lost wages” loop hole is not a loop hole at all. If it uses the unemployment insurance system to pay the money and uses the unemployment insurance system to determine eligibility, then it is unemployment insurance.

  3. Conservatives apparently have stopped flailing and have just surrendered.

    A president has signed a set of four expansive “bills” — his word, and entirely his creations — that seems to assert transfer of the taxation and spending powers from Congress to the White House.

    National Review? Not a word.

    RedState? Front-page praise for this “decisive action” (lauding the strategic assault on Democrats while acknowledging queasiness with respect to support for an action that is “unconstitutional”).

    Power Line? Applause for a “political masterstroke” (although briefly recognizing that ‘Questions surround the legality . . . “)

    Reason? Not a word — except for some right-wing legal blog posts that dutifully strive to identify legal justification for the president’s conduct.

    Instapundit? Regurgitation of Trump-flattering observations from Power Line and Volokh Conspiracy.

    These developments will enhance the entertainment value of Republicans’ strident whining when better Americans resume shoving progress and modernity down conservative throats; when Democrats enlarge the Supreme Court (by scrupulously following rules and honoring repeated precedent); when universal health care (formally named “Obamacare”, I hope) is enacted; and when the liberal-libertarian mainstream dismantles the authoritarian, bigoted, cruel immigration policies and practices arranged by Republicans and conservatives.

    If the American mainstream decides to start positioning that additional progress sideways before shoving, those doing the swallowing might try to find a moment to remember these Republican “bills” — and the broader conservative reaction — when attempting to understand.

    1. So, when your President does it, then its legal, and when our does, its not.
      Got it.
      Can’t believe you are allowed to espouse your hateful, tyrannical, fascist garbage on this forum. You should have been banned the first time you called your fellow citizens “clingers”.

      1. Whattaboutism aside, do you think what Trump did was legal or not?

        1. Whattaboutism aside, do you think what Obama did was legal or not?

          1. You even going to mention an specific act or just going to reveal your tiny two-dimensional worldview yet more?

      2. GREAT NAME

    2. Because these are the rules the liberals have set down. You don’t like them? Support changing the rules. Otherwise, don’t complain that we gave up fighting against the rules and started following them.

      1. Remember that sentiment when the Supreme Court is enlarged in fastidious compliance with unambiguous rules and congruent with centuries of established practice.

      2. IOW, You have no argument. Just liberal-bashing.

        Which pretty much describes the state of conservatism is the US today.

  4. Congress needs to reassert its power of the purse.

    And how do you propose they do that when the Supreme Court – in particular the Republican Justices – are prepared to rubber-stamp Trump’s spending on whatever he wants.

  5. Apologies for double posting. I put the comment below on yesterday’s post rather than this one.

    I don’t understand how this even works. Section 3102 of the IRC requires, among other things, that “[t]he tax imposed by section 3101 shall be collected by the employer of the taxpayer, by deducting the amount of the tax from the wages as and when paid.” The clearest problem is with employees who work for the employer now, but are no longer working for the employer when the extension of time ends. How exactly, or even approximately, does the employer “deduct” the amount of the tax from the wages paid, which have been, um already paid in full? I’m not even sure that it works linguistically for employees who have stayed with the same employer, though I suppose that’s a closer case.

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I Never Expected to Be Thanked in an SF Story

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From noted SF writer Ken Liu's short story Byzantine Empathy in Breaker Magazine, republished in the recently released The Hidden Girl and Other Stories:

Author's Note: I'm indebted to the following paper for the term "algics" and some of the ideas about the potential of VR as a social technology: Lemley, Mark A. and Volokh, Eugene, Law, Virtual Reality, and Augmented Reality (March 15, 2017).

Nice! Any other SF writers who want to read Mark's and my article, and use whatever ideas you like, can find it right here; for more on algics, see here. And any aspiring law professors should remember the First Law Of Legal Scholarship: Never pass up an opportunity to cowrite with Mark Lemley.

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  1. Surprised me too when I was reading Hidden Girl. I had noted this in the book rec thread a week or so back but I assume you missed it. RIP my hat-tip.

  2. Eugene,
    I followed the link re algics. But at the end of that, earlier, post, you wrote, “…So far, so good. But consent in a virtual world has some nuances that we might not expect, as we see in the next section….”

    Was there ever a next section/post? If so, can you include that link (those links??)? In for a penny; in for a pound.

    1. I forget whether I blogged the whole article, but it’s all in the full Penn. L. Rev. piece.

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The Mechanics of President Trump's Payroll Tax Deferral Memorandum

Defer payroll taxes till December 31, 2020, and forgive them if Trump wins re-election.

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Earlier today, I shared my tentative thoughts on President Trump's four new executive actions. My first post in this series considered the mechanics of the Memorandum on Authorizing the Other Needs Assistance Program for Major Disaster Declarations Related to Coronavirus Disease 2019.

This second post will look at the Memorandum on Deferring Payroll Tax Obligations in Light of the Ongoing COVID-19 Disaster.

Earlier this year, the Trump Administration extended the deadline to file federal income taxes from April 15 to July 15, regardless of the amount owed. I have not researched whether this move was lawful. (I filed before April 15.) I am also not aware of any legal challenges to this extension. I can't imagine any group would be willing to go to court to force people to pay taxes earlier, as well as suffer additional penalties and late-payment fees.

This second memorandum extends a tax deadline, but on a much larger scale. Trump directs "the Secretary of the Treasury to use his authority to defer certain payroll tax obligations with respect to the American workers most in need." What exactly is being deferred?

The Secretary of the Treasury is hereby directed to use his authority pursuant to 26 U.S.C. 7508A to defer the withholding, deposit, and payment of the tax imposed by 26 U.S.C. 3101(a), and so much of the tax imposed by 26 U.S.C. 3201 as is attributable to the rate in effect under 26 U.S.C. 3101(a), on wages or compensation, as applicable, paid during the period of September 1, 2020, through December 31, 2020, subject to the following conditions.

I do not know enough about the technical aspects of how this process would work. Does this mean that the Treasury Department will not allow employers to withhold the taxes? If an employer tries to transmit these withheld taxes, will the Treasury Department not allow it to be deposited or paid? Must the employer hold on to the money? Can the employer hold on to this money? Right now, HR lawyers are flipping out. They have till September 1 to figure out the details. And the policy terminates on December 31. President Trump, or President Biden, will be forced to decide whether to continue this program.

The memorandum applies to people who earn less than $4,000 on a bi-weekly basis, pre-tax. That breaks down to about $100,000 a year. A considerable number of people will benefit from this policy.

Of course, deferring a tax doesn't mean it never has to be paid. Trump takes certain actions to address that fact. First, "amounts deferred pursuant to the implementation of this memorandum shall be deferred without any penalties, interest, additional amount, or addition to the tax." In other words, people can pay the taxes later, without penalty. (The IRS took similar actions when it pushed Tax Day till July 15).

But most people are not going to save the money for an eventual tax bill. There is a reason why even Milton Friedman supported tax withholding. People are not sad to see money go that they never had. In college, I heard Walter Williams give a talk. He proposed that we could reform tax policy overnight if every American was forced to go the post office, every two weeks, to personally pay his taxes.

Next, Trump's memo offers a tease:

The Secretary of the Treasury shall explore avenues, including legislation, to eliminate the obligation to pay the taxes deferred pursuant to the implementation of this memorandum.

During his press conference, Trump said (and I am paraphrasing), if I am re-elected, maybe I will forgive the taxes. Like a forgivable loan! In other words, people would never have to pay it! What is Biden going to say during a debate? No, I will not forgive it, and I will force everyone to pay the back-taxes with penalties and interest. That answer would be insane.

The greatest risk here is for employers. I wrote about that risk earlier:

One final note. The biggest losers today are employers. Will corporations actually stop withholding payroll taxes? Sure, Trump approved that action. But federal law remains in place. Will any compliance department actually stop withholding payroll taxes on the promise of an executive action? A Biden administration could prosecute these companies. Thus, employers will now be at odds with their employees who demand their full salary. Perhaps an employer would be a good litigant to challenge this executive action, as there is no regulatory uncertainty.

Again, I haven't researched the specific statutory authorizations carefully. Please email me if I flubbed the mechanics.

The third memorandum, concerning student loan interest, is fairly straightforward. And the fourth order, concerning foreclosures, does not take any action. It merely directs others to consider actions.

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  1. As I stated in a reply to an earlier post, the Congress will with near certainty forgive the tax for both the employer and employee in early 2021. It is a political necessity.

    As for the issue that Trump could unilaterally forgive the tax, well that would seem to be legally impossible, but then who would protest?

    This is where we need the Rand Paul’s of the world.
    And what about this idea of requiring the states to kick in $100 per week in extra UI? How is that legally possible?

    And why is it that Trump can take these unilateral actions with no opposition from conservatives, but when something is done the right way, by congressional action, in the case of requiring states to accept Medicaid expansion that is considered an unconstitutional action? Conservatives need to apply their beliefs consistently, or else we are just regarded as opportunistic quacks.

    1. I don’t see how he’s got the power to do this, legally speaking, but I’d say the same of DACA, for precisely the same reasons.

      It’s “just” prosecutorial discretion, right?

      1. Exactly. Roberts and the Dems (but I repeat myself) made the rules. Trump is just following them.

  2. Responsibility is now pined on Trump for aid being both too much and not enough. By November it will be time for plan B(iden).

  3. I expect that Trump’s actions are a signal for Congress to get the finger out and do something.

    1. Have you met Congress? They haven’t passed anything that wasn’t a tax cut or renaming a post office since ACA.

  4. “There is a reason why even Milton Friedman supported tax withholding.”

    Yes, and it was a bad reason: To keep people from immediately revolting in the face of high taxes, by never letting them have the money in the first place.

  5. Won’t this also ensure debt ceiling brinkmanship before the election since there will be almost no federal revenue in the next few months?

    1. “Almost no federal revenue”? Surely you jest. I doubt anyone is that naive.

      1. Almost none is a bit hyperbolic. At nearly 50%, personal income tax is the largest source of revenue. Without withholdings, that revenue would be delayed until next April.

        Other sources like payroll taxes and corporate taxes probably aren’t doing great either.

        1. So is 50%. Try 1/3.

          1. That chart is for federal, state, and local combined.

            The same source says that 2.1T of 3.7T (57%) federal revenue is from the income tax. But, that includes payroll taxes. https://www.usgovernmentrevenue.com/fed_revenue_2020USri

        2. At nearly 50%, personal income tax is the largest source of revenue. Without withholdings, that revenue would be delayed until next April.

          The language in the memo isn’t a model of clarity, but I’m fairly comfortable that the intent is for the deferral only to apply to the FICA portion of withholdings, not the federal income tax portion. That’s a fairly small portion of the withholding revenue stream.

  6. Prosecutorial discretion.

  7. On this one, I can speak to previous practice, as I am an experienced tax professional. IRS has the statutory power to extend its filing deadlines, and in some cases its payment deadlines, to accomodate the victims of presidentially declared disasters. There are typically at least one of these every year — hurricanes, wildfires, earthquakes etc. IRS took advantage of this to extend its filing deadline to July before Congress even acted. The CARES act enabled IRS to extend the payment deadline as well. More such extensions are possible depending on how long the state of disaster lasts.

    1. I don’t think Trump’s IRS (if he’s still president then) will be so solicitous.

  8. Back in high school, when my father told me, “If you’re making $200 a week, you’re doing pretty good,” he advocated as much withholding as possible. “It’s just like saving money.” Working class wisdom. Still exists with the black working class, at least.

    1. Then your father was an undisciplined fool. Loaning the government money at 0% interest is a fool’s game.

      As for your classist and racist comment, how about some citations to back it up?

      1. I believe the correct response is “F—k you and the horse you rode in on.”

        1. Your father’s “advice” is so obviously wrong that I took your comment to be saying that this particular “wisdom” is reflective of the kind of economic ignorance that keeps people from accumulating wealth and leaving the “working class”. Were you actually trying to say that your father was right (either on the bottom line that withholding as much money as possible is good, or on his description of doing so as being “just like saving money”)?

          1. I up my withholding beyond the bare minimum for a couple of reasons.

            1) I am willing to pay a small fee for the enjoyment I get from a decently sized lump-sum when I file. Non-optimal economic behavior can be fun.
            2) I don’t resent a marginal increase in the amount I’m giving to the government in taxes as much as I do similar amounts via other methods or to other entities.

      2. I agree with your comment that loaning the government money at 0% is foolish and I loan as little as possible and accept that I will have to pay extra (above money withheld) on April 15th. I can do that because I have enough money that paying several thousand dollar is not a problem. For the average young person the idea of paying $2K to $3K on tax day will be had to swallow. Most people prefer a refund and see it as extra/mad money (it not of course).

  9. Before the 2016 election I was weary of candidate Trump because of his business practices. These typically benefited him and not others (I don’t recall anyone testifying that Trump made them richer). I can not help but see this in his Presidency. Trump has always made money for himself and left a trail of wreckage for others. I do worry that these action fall into that category and that is undercutting the American economy.

  10. I don’t understand how this even works. Section 3102 of the IRC requires, among other things, that “[t]he tax imposed by section 3101 shall be collected by the employer of the taxpayer, by deducting the amount of the tax from the wages as and when paid.” The clearest problem is with employees who work for the employer now, but are no longer working for the employer when the extension of time ends. How exactly, or even approximately, does the employer “deduct” the amount of the tax from the wages paid, which have been, um already paid in full? I’m not even sure that it works linguistically for employees who have stayed with the same employer, though I suppose that’s a closer case.

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The Mechanics of President Trump's Disaster Relief Memorandum

States can choose to obtain additional funding for providing unemployment benefits.

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Earlier today, I shared my tentative thoughts on President Trump's four new executive actions. This post will break down the mechanics of the Memorandum on Authorizing the Other Needs Assistance Program for Major Disaster Declarations Related to Coronavirus Disease 2019. I will address the other actions later.

The CARES Act created the Coronavirus Relief Fund (CRF) to cover costs incurred by state and local governments due to COVID-19. The memorandum states that the CRF currently about $80 billion.

The Department of Homeland Security also administers the Disaster Relief Fund (DRF). This fund, which predated the CARES Act, has $70 billion in funding. It is used, as the name suggests, for disasters. And the President has declared that the COVID-19 situation is a "disaster."

The memorandum directs that $44 billion from the DRF be provided to the states "[t]o provide financial assistance for the needs of those who have lost employment as a result of the pandemic." But by statute, any federal grant from the DRF must be supplemented by the states: the federal government provides 75% and the states provide 25%.

States are not obligated to request this funding. And if they decline to participate, they can keep all their current funding. I don't see an NFIB problem. Relatedly, if a state has the option to opt out, I do not know how they would have standing to challenge the memo. Perhaps a state could argue that this policy could decrease the funding available in the DRF for a disaster. But the policy expressly ensures that the DRF will not dip below $25 billion.

"At least $25 billion of total DRF balances will be set aside to support ongoing disaster response and recovery efforts and potential 2020 major disaster costs."

Would a court really say that $25 billion is not enough money, thus California could go to court? Standing will be hard to establish here here. In theory, if an active hurricane season depletes the DRF, the lost-wage benefits could terminate sooner rather than later. But I am confident Congress would not let those funds run dry. Trump is calling their bluff.

But here's the rub. The states can pay their 25% through the CRF. If I am reading this memo correctly,  the states can shift the money offered by the federal government from the CRF to supplement the payments from the DRF. If the states follow Trump's plan, they may not have to use a penny of state money to provide these payments. In effect, Trump is getting around the 25% matching policy by letting states use another pool of federal money. My reaction here is tentative. Please e-mail me if I missed anything.

The memo states:

I am calling on States to use amounts allocated to them out of the CRF, or other State funding, to provide temporary enhanced financial support to those whose jobs or wages have been adversely affected by COVID-19.  These funds, including those currently used to support State unemployment insurance programs, may be applied as the State's cost share with Federal DRF funds.

In short, the federal government will likely be paying for 100% of the assistance program for lost wages. States are not obligated to participate. But those who choose to participate may not have to actually tap state funds, unless the DRF drops below $25 billion, which very well may happen. There is a risk for governors, but one they would be willing to take.

But wait, there's more! HHS is "authorized to make available other needs assistance for lost wages . . . if the Governor requests lost wages assistance and agrees to administer delivery and provide adequate oversight of the program." The memo describes how the funds would be allocated:

In exercising this authority, the Secretary, acting through the FEMA Administrator, shall, subject to the limitations above, approve a lost wages assistance program that authorizes the Governor to provide a $400 payment per week, which shall reflect a $300 Federal contribution, to eligible claimants from the week of unemployment ending August 1, 2020.

Of course, the federal government will be covering the additional $100 through the CRF. Governors who apply will basically obtain a $400 weekly supplement for their citizens. Bring home the bacon! Perversely, Republican Governors are more likely to apply than Democratic Governors.

And this policy does not only apply to those who are on unemployment. It also applies to a "claimant [who] is unemployed or partially unemployed due to disruptions caused by COVID-19." "Partially employed," I think, means someone whose hours were reduced because of COVID. This category would also likely include those who are furloughed.

This policy will become very popular. There will be terrible optics to challenge it in court. For years, I have repeated the refrain, "I favor the policy, but it should be accomplished by legislation, not through executive action." When I repeated that line at CUNY Law, one of the protestors shouted "Fuck the law." Democratic AGs will have a tough time explaining why they are ripping away $400 a week from unemployed residents. Fuck the law!

This policy will not go on indefinitely–unlike DACA. There is an express termination clause:

The lost wages assistance program described in section 4(b) of this memorandum shall be available for eligible claimants until the balance of the DRF reaches $25 billion or for weeks of unemployment ending not later than December 6, 2020, whichever occurs first, at which time the lost wages assistance program shall terminate.

Legally speaking, the Court may be hesitant to enjoin a policy that will only last a few months. Politically, President Trump or a President Biden will be forced to continue renewing this policy indefinitely. Benefits are very hard to remove. Now Trump has entrenched a new benefit by executive action.

There is, of course, one natural stopping point. If legislation is enacted, the order terminates:

The lost wages assistance program shall terminate upon enactment of legislation providing, due to the COVID-19 outbreak, supplemental Federal unemployment compensation, or similar compensation, for unemployed or underemployed individuals.

Thus, in theory at least, Congress has some latitude to negotiate in the shadow of this memo.

This reaction is tentative. Please email me if I got anything wrong. I still haven't done the necessary research to determine if the statutes cited authorizes this action.

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  1. “I still haven’t done the necessary research to determine if the statutes cited authorizes this action.”

    Bro, people are not clicking these links with the assumption that you have spent time analyzing and researching the subject matter you’re writing on. Every minute spent understanding the subject is a minute that could have been spent producing content. Just keep churning out fresh content so the blog remains relevant and appears when people search for whatever topic is trending. Also, make sure to embed as many cross-links as possible to prior posts for improve SEO. You never know, if you blog enough about a topic people might just assume you’re an expert, which is pretty sweet since you didn’t have to do all that extensive research that experts actually do. If you keep this up, you may even find yourself in the pages of Newsweek.

    1. I for one welcome this blog activity. I’m learning a lot about the ins and outs of arcane legal matters and how politicians quibble and sneak around laws. I have never doubted that this happens, but I have never known the details, and find it fascinating.

      1. If your putative knowledge is derived from Prof. Blackman’s Posts, you may have learned less than you think.

        1. If you disparage Prof Blackman so easily, while knowing nothing of what I know or have learned, you know less than you think.

      2. Me too. Josh has been an amazing addition to the site.

  2. I wonder if the deranged Trump-hating governors will apply for these? Do they hate Trump enough to punish their unemployed citizens?

    1. I hope not.

      I hope Dem governors are better people than the GOP governors who refused Medicare expansion because it was Obama.

      1. Ahh the old ‘Good for Dems, bad for GOP” policy.

        1. Not anything remotely like what I just said, chief.

  3. That looks to me like a conjunctive rather than a disjunctive “and” in the eligibility section. Seems to apply the PUA screening criterion to the previously generally available benefit. If it’s disjunctive, the drafting is bad.

    Mr. D

  4. “But I am confident Congress would not let those funds run dry.”

    I am not.

    1. Trump Derangement Syndrome requires casting innocents to the wolves to thwart la Grand Orange

  5. You missed the part where a person must claim at least $100 per week to qualify, a requirement that was not in the $600 bonus. This is a disincentive to work more hours, and would be a pain to implement for many states.

  6. I still haven’t done the necessary research to determine if the statutes cited authorizes this action.

    Then why are you posting on the subject?

    Oh. And it should be,

    “I still haven’t done the necessary research to determine if the statutes cited authorize this action.

    Subject-verb agreement, Josh. Basic grammar.

    1. I suppose you have never commented on anything, or written on anything, until all the facts were finally settled, days, weeks, months, or years later. You are such an example for us all.

      1. I’ve often commented on things when the facts weren’t in.

        This is not a case of having to wait years for the facts to come in. It’s a case of having to do some research on the statutes before rushing into print.

        Blackman is a law professor. This is not a huge, broad issue. It’s not going to take him “days, weeks, months, or years” to do the research he refers to. Well, it might take days. But so what? Does he imagine that the world is so breathlessly awaiting his analysis that he can’t wait and do that research.

        1. Does he imagine that the world is so breathlessly awaiting his analysis that he can’t wait and do that research.

          Are you new to the Internet?

    2. Also, picking on a typo is really really really petty.

  7. Really brilliant move on Trump’s part.

    Dems made the rules. Trump is just following them. And they hate that.

    1. What are the rules governing Supreme Court enlargement, Patrick?

  8. “Fuck the law!”

    Because the proprietor has neither amended his directives nor apologized, I assume I am still not to use the terms “c@p s*cc@r” or “sl@ck-j@w” at this blog as a result of the Volokh Conspiracy’s self-described ‘civility standards.’

    For similar reasons, I continue to understand that Artie Ray Lee Wayne Jim-Bob Kirkland is still banned for making fun of conservatives and providing ‘low signal to noise’ content.

    “Fuck the law,” however, seems to be congruent with the Volokh Conspiracy’s self-proclaimed civility standards — much like references to liberal judges being gassed, liberals being shot in the face upon answering the front door, liberals being sent to Zyklon showers, liberals being placed face-down in landfills, and the like.

    I guess I am just not smart enough to understand the Volokh Conspiracy’s self-proclaimed, repeatedly enforced censorship standards.

Please to post comments

Tentative Thoughts on Trump's Four Executive Actions

The Trump Administration tries to employ the Regents strategy before the election.

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Earlier today, I linked to President Trump's four new executive actions. Here are my tentative thoughts.

The Trump Administration is carrying into execution what I've dubbed the Regents strategy. First, confer benefits through the under-enforcement of the law. Second, hope that the Supreme Court allows the executive action to go into effect. Third, allow people to rely on those policies. Fourth, there are now reliance interests. Therefore, pursuant to Regents, it will be tougher for the court to unwind the policy in the future.

The play is at Step #2. I assume that some district court, somewhere, will enjoin these polices. (D.D.C. clerks, please report to your chambers, ASAP). And, I'll assume that the Circuit Courts will decline to stay the injunction. At that point, it all falls to–who else–Chief Justice Roberts. If he declines to stay the injunction, then the Regents strategy fails. These plans failed to launch. If Roberts stays the injunction, then the Regents strategy goes into motion.

What will Roberts do here? Jon Adler explained that Roberts Roberts is skeptical of lower-court injunctions. That is, he likes to maintain the status quo. What exactly is the status quo?  As it stands now, people are receiving certain benefits. Congress failed to act. Therefore, those benefits stand to disappear. I can see Roberts saying, "Well, we should preserve the status quo, and ensure there is no massive disruption, so I'll stay the injunction." Then Roberts will say, "You know, these leaks really are a big deal. Maybe Josh is right. I should step down." Scratch that last part. But I think I'm right about the status quo analysis. Roberts's preference is for things to stay the way they are, and a stay of an injunction would keep things the way they are.

Furthermore, the question of congressional standing looms large. Yesterday, the D.C. Circuit punted in Mnuchin. This case considered whether the House has standing to challenge a violation of the Appropriations Clause. (Jon Adler wrote about this issue yesterday). I could see the Chief staying an injunction solely because the congressional standing issue is unresolved. (After Virginia House of Delegates, I think this issue is a basically settled.) And once again, Trump gets past stage #2.

Now, a few comments about policy. Trump took specific actions that will be very popular. Sure, law professors can fight over the separation of powers issues. But the people who benefit from these policies will gladly, or perhaps begrudgingly, accept the money. The optics for legal challenges are bad. Will the House of Representatives go to court to ensure that people have to pay taxes? Will states go to court to block people from receiving unemployment benefits? Will landlords go to court to make it easier to evict people? Will lenders go to courts to ensure that student loans are paid? Trump's strategy is diabolical.

Trump also put Vice President Biden in a tough spot. All of these orders expire in December 2020. Trump said if he is re-elected, he would continue the policies, and forgive some of the loans. What is Biden going to do? He favors the policy, opposes the executive actions, and prefers legislation? Again, law professors love those sorts of arguments. I have been repeating that line for years with respect to DACA. But average people will not be happy with it. Biden is stuck between a rock and a hard basement.

One final note. The biggest losers today are employers. Will corporations actually stop withholding payroll taxes? Sure, Trump approved that action. But federal law remains in place. Will any compliance department actually stop withholding payroll taxes on the promise of an executive action? A Biden administration could prosecute these companies. Thus, employers will now be at odds with their employees who demand their full salary. Perhaps an employer would be a good litigant to challenge this executive action, as there is no regulatory uncertainty.

I will dig into the orders soon. But the optics on this case are not obvious. So much of the Trump Administration's actions have been flubbed. These actions look, at first glance at least, more careful.

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  1. Trump is flailing now…I don’t think analysis needs to be any deeper than that. The problem is Trump was on a losing course in February and his advisers should have told him to pull a Chris Christie in order to change his trajectory. So Christie made Sandy out to be the apocalypse and worked with Obama and ended up getting re-elected. Trump made the mistake that voters believed his bs about the economy and he was on a course to win in November.

  2. The payroll tax deferral is a double whammy: If it does go into effect, it doesn’t relieve the tax payer of an obligation to pay the taxes, just ends withholding of them.

    So, come next April, a lot of people who have been enjoying getting all the money they worked for suddenly face a huge bill that reminds them of just how freaking high their taxes really are.

    That’s bound to have political effects, and might force Congress to roll back payroll taxes.

    1. At which point millions of white men all over America will have miraculously forgotten whose idea that was in the first place.

      1. I’m not sure why you think that not being forced to give the government an interest-free loan is a bad thing. Sure, there will be some sticker-shock in April but everyone knows that the actual tax rates are set by Congress. No one over the age of 10 expects anything different.

    2. Great, so then the deficit will soar even higher. At some point our credit will be maxed out. Do anti tax Republicans have a plan in place for when that happens?

      1. Force Democrats to raise taxes on everyone, see people all vote Republican in the next election?

        1. That doesn’t fix the problem of what to do when our credit is maxed out and people still expect service.

          1. Sure it does. Once Democrats hike taxes to obscene rates to pay for all their spending, the GOP will be able to slightly lower taxes (from the obscene rates) and trim services.

            1. But more realistically, we’ve seen this scenario happen on local and state-like levels repeatedly

              Democrats hike up services to unsustainable rates, while not raising taxes enough, and maximizing out credit. Then when the bill comes due, bankruptcy-like proceedings take place, and services are sharply curtailed, and a more GOP-like administration comes in and is needed to fix the problems.

              1. When has a GOP administration fixed a deficit? That’s Dems you’re thinking of.

              2. You know, Obama was within striking distance of a balanced budget when he left office. It’s Republicans who both spend like drunken sailors and won’t raise the revenue to cover it. If fiscal responsibility is your issue, vote Democrat.

                1. “It was Obama…” “Striking distance”…

                  Right…Because more than a $400 Billion dollar deficit is “striking distance”

                  Have you actually looked at the math? Or the history?

                2. You think Congressional Republicans were passing Obama’s budgets?

                  lol get real

                  1. AL and Sam:

                    If you compare what the economy and budget looked like when Obama took office, and when he left office, he did a fantastic job. And when you’re talking about a multi-trillion dollar budget, yes, he was “within striking distance” of a balanced budget. But that’s all a side issue; here’s the main event:

                    Sam, *of course* Republicans weren’t going to pass Obama’s budget, or anything else he sent them, hence DACA. Both parties are big spenders, but the Democrats recognize that somebody has to pay for all this spending. You can’t just keep throwing it on a credit card because eventually you max out and the bills come due. And they can’t cut spending to levels that would fix the problem because the voters really do want all these services. The voters, who also don’t want to pay taxes, apparently think the money fairy just goes poof and a big pile of cash magically appears out of nowhere. So, how do you cut taxes, increase spending, and not increase the deficit, all at the same time? It’s magic, I tell you.

                    The Democrats are basically the grown ups in the room. They know that’s all hocus pocus. They know that taxes are going to have to go up because the current approach is unsustainable. They know it’s all going to come crashing down at some point, and as with any other problem, the longer you wait to fix it, the harder it is to fix. The Republican Party base, on the other hand, is the party of magical economic thinking and “you can’t make me” petulant teenagers who won’t even wear masks to help control a pandemic. Unfortunately, due to our bizarre system of electing leaders, in 2016 those petulant teenagers and voodoo economists swept the table and were put in charge of the country.

                    So I’ll go with my original statement: If fiscal responsibility is your issue, vote Democrat.

                    1. Well… A little history at past bankruptcies and bankruptcy-like situations in the US for governments may change your mind.

                      The “big 4” are:
                      1. Puerto Rico
                      2. Detroit
                      3. Jefferson County, Alabama
                      4. Stockton, CA.

                      What they all share is a government run by Democrats (Yes, JC Alabama was run by Democrats), which ran up government spending, while trying also to finance with high taxes and debt spending, which ultimately failed as they couldn’t raise enough tax revenue to cover all their additional spending and obligations. In many of the situations, there were elements of corruption as well (big government spending leads itself to that, in a way low taxes really can’t) .

                      That’s what we start to see at the higher levels of federal government as well. Slightly shady “deals” made by lead Democrats for themselves or their families, promising excess spending or benefits or favors…. Plus a lot more spending for “favored” groups, and some more taxes….

                      So you can see the concern. You know, simply based on past examples.

    3. It’s quite a bit worse than that. Remember, people have to pay taxes on unemployment, but that isn’t withheld.

      Come 2021, a lot of normal Americans are going to be hit with MASSIVE tax bills that they weren’t expecting. Couple that with withholding issues…

      1. Yeah, and as much as I despise Trump, part of me hopes he’s re-elected so it’s his mess when these fiscal chickens come home to roost. He made this mess, with the complicity of his congressional enablers; let him be there when the bills come due.

        1. Well, really it’s the people who don’t realize that you need to pay taxes on UE who have the fiscal chickens…

    4. Congress will forgive the payroll taxes retroactively. They will have no choice.

  3. Biden as an easy out. He will simply say that he will enact legislation to continue the polices, but in a legal manner. But it is my prediction that these actions will enshrined into law by Congress soon anyhow.

    1. Because social security doesn’t really need funding after all? Have you suddenly been converted to the MMT magic money tree?

      1. I said “say”, not “do”.

  4. Notice the lack of condemnation by conservatives here. Is there any action that Trump can take that would cause his so-called conservative supporters to put principle over policy? Is there any action Trump would take that would result in abandonment on principle by so-called conservatives, including the author of this post?

    Anybody want to speculate on the fury from the right if Obama had done this? Nobody, didn’t think so.

    We now know the answer to those questions. Pure bllind following the Trumper, intellectual integrity be damned.

    1. I don’t see this as a problem for Biden and Congress can legislate appropriately when the Senate is prepared to do so. I’m happy for those who need support given the lack of action on the virus.

    2. Replace Trump with Obama and you get the same result. Ask someone for a stepladder to help you get off your horse.

    3. It’s because its the rule set by Roberts and the Dems (but I repeat myself).

      Nominally we oppose it. But that is not the would we live in any more.

      If Obama can do DACA, Trump can do Payroll Hold.

  5. This would be the same Donald Trump who spent most of 2016 complaining about Obama’s use of executive orders?

    1. “Oh no, the Republicans are weaponizing our tactics against us!”, shocking entry #413

      1. The point isn’t that he’s using the tactic; the point is the hypocrisy of him using it after he made it a campaign issue. If you’re going to complain about it, then don’t do it yourself

        1. The right has tried that. It gets us nowhere.

          It’s now time to use their rules. If they don’t like it, we are willing to change them. But that’s on them, not us.

          1. So just to be clear, if Biden is elected, you’ll be ok with him governing by executive decree? Because Trump ratified that method of governance by using it himself.

            1. You think Biden will be asking random blog commenters?

              I think Biden would actually do fewer Executive Orders after the first couple weeks. Why bother when he doesn’t really care?

              The real worry will be the VP. None of the VP candidates have a record of supporting American values. Communist, careerist jailor, vengeance-minded schoolmarm, and lying anti-American conspirator are the four front runners.

              1. You, uh, didn’t answer the question.

    2. Yes, same Donald Trump.

      Let’s make my viewpoint clear here for you. These types of executive actions which make vast changes like DACA are very undesirable. These large changes to the legal code should be made through the standard lawmaking process (IE, through Congress). It undercuts the stability of the republic as a whole when large changes to the legal code are made by executive action alone. DACA should not have been allowed by the courts, and should have been struck down as an executive action which infringed upon the prerogative of the legislative branch.

      Further compounding that, are changes to the legal code by executive action that cannot be summarily reversed by future executive action. This is a massive mistake, that further undercuts the constitutional backbone of our society, and has all sorts of unpleasant games.

      Once these “rules” were set however, where a President could issue an executive order (that should be a law), one that couldn’t be summarily overturned by a successor, it is now extremely unreasonable to expect “only” one party to use the new rules and not the other party. The new “rules” are too advantageous, to powerful, and too easy to use to gain political advantage. If one party DIDN’T use these new rules, while the other did, the party would essentially be committing suicide.

      The answer here is for a bipartisan force in Congress to strike down these new “rules”, and retake Congressional power for itself, from the executive branch. And there’s no way a bipartisan force would be formed if only one party was gaining advantage from the new “rules”.

      1. I should live so long as to see Congressional Republicans unite with Democrats to stand against Donald Trump. If he crapped on his desk in front of TV cameras, Mitch McConnell and Lindsay Graham couldn’t wait to tell the nearest TV camera what a great job it was. I bet they’d even wipe his bum.

        1. It’s not about “Donald Trump”

          It’s about the executive branch, and it’s overreach in EOs.

          Any such deal would likey have to revoke DACA in its entirely as an example of such EO overreach, as well as Trump’s orders. That would garner bipartisan consensus.

          An action which JUST targeted Trump’s executive orders wouldn’t garner bipartisan consensus.

          1. Oh, Republicans will be more than happy to rein in executive overreach once there’s a Democrat in the White House, but not one minute before. As are Democrats now that there’s a Republican in the White House. I don’t think you’ll find either side willing to do it when their guy is wielding the pen. So maybe both sides should just stop complaining.

            Though I do think Democrats were more willing to say no to Obama than Republicans are to Trump. He had a devil of a time getting Obamacare passed even with big majorities in each house.

            1. So, you think the Democrats would be onboard with revoking DACA completely to also revoke these EOs by Trump?

              1. DACA had a gnat’s-breadth compared to these EO’s.

                1. If DACA’s a “gnat’s breadth” then it should be easy for Democrats to be on board with such an action. They get four “big” EOs revoked for one “gnat’s breadth” EO.

                  But DACA and the legalistic battles around it are the reason why such a strategy exists.

                  1. My principles are not transnational.

                    It is not the right thing to do to to trade the well-being of a bunch of kids to stop Trump’s rampage of authoritarianism.

                    I also don’t think DACA’s breadth was illegal overreach. I think Trump’s EO’s are. I think it’s bad and wrong for you to insist I kowtow to your hostility to Obama and illegals in order to get you to agree that Trump’s doing bad stuff here, and should be stopped.

                    1. Uh huh…..

                      “It’s OK for Democrats to do it, but Trump bad”.

                      Typical.

                    2. Yeah – Obama cares about legal niceties and doing stuff by the book because he believes in our system.

                      Trump does not.

                      I get that you don’t like DACA, but using Trump’s actions – which you admit are bad – as a lever to end that policy shows how little you actually care about stopping things you know are bad if your side is doing them.

                    3. You’ve got the cast iron gall to say that of Mr. “Stroke of the pen, law of the land”? Of course you do.

                    4. Brett, using your interpretation of a thing Obama said to defend things Trump is doing? That’s not going to convince anyone.

                    5. “Obama cares about legal niceties and doing stuff by the book because he believes in our system.”

                      LOL do you actually believe that? Despite the evidence of DACA which is completely the opposite?

                      What cognitive dissonance you have.

                    6. Yeah, I think DACA was legal. And I’m not sure about these Trump orders.

                      Trying to analogize different orders about different areas of the law is bad analysis.

              2. I think Dems would be on board with revoking Obama’s executive order on DACA so long as Congress passes DACA and the EO is therefore unnecessary. Remember, DACA had broad bipartisan support in Congress, which is why the leadership refused to allow a vote. McConnell wasn’t willing to give Obama a legislative victory in an election year.

                1. No. No “deals” like this. No “I’m OK with it, as long as I get everything I want anyway and you don’t get anything”. It doesn’t work.

                  See, that’s the problem. The “I get everything I want and you don’t get anything you want” mentality. That’s why we’re in this mess in the first place.

                  DACA would need to be passed later, likely as part of a large immigration deal, ala 2007.

              3. Dems could work out a compromise immigration bill that completely protects and legalizes DACA recipients any time they want.

                They don’t want to. They want the political issue and they want to stick it to Americans. They think they can import replacement voters and be permanently in power with zero accountability.

        2. The Democrats had a chance to unite with the associates across the aisle against Obama’s executive overreaches. I didn’t hold my breath waiting for that.

          1. Indeed.

            But the reason for that was that Democrats saw themselves getting something they wanted (DACA) without having to make any compromises or deals with the GOP for something the GOP wanted, in order to get the law passed (Which is how legislation is supposed to work). In addition, none of their members needed to make “hard votes”. Which worked great in the short term.

            In the long term, like abolishing the fillibuster, it had severe consequences.

            1. Tu quoque is all well and good if you are trying to prove Dems are hypocrites.

              But what’s good or bad policy isn’t something set by precedent. You say these are undesirable – do you think Trump is a bad President for doing an undesirable thing like these orders?

              1. I mentioned this in the original response to Krychek.

                1. Yeah, that’s why I used the word undesirable – it comes from that post!

                  But you didn’t really discuss Trump at all.

                  1. We’ve been through this dance before. I made my views clear in that post.

                    1. You did not make your views clear when it comes to Trump.

                      But you want to avoid the question.

                      Which is all the answer I need.

                    2. You made your views clear when it comes to Obama:

                      It’s okay for Obama to do it, but not Trump, because Orange Man Bad.

                    3. Obama broke the law regarding his action in Syria. He broke it in targeting an American citizen to be droned. He broke an important norm by refusing to defend DOMA.

                      I’m not the partisan strawman you and AL appear to be.

        3. Were you not alive during the first two years of his presidency?

      2. “The answer here is for a bipartisan force in Congress to strike down these new “rules”, and retake Congressional power for itself, from the executive branch. And there’s no way a bipartisan force would be formed if only one party was gaining advantage from the new “rules”.”

        I wrote nearly the same thing elsewhere this morning. Obama opened the floodgates for this sort of thing, Trump is merely taking advantage of the opening. Given that the House won’t allow any sort of legislative GOP ‘win’ during election season, Trump’s offering relief. I’m not naive enough to think that he’s doing this entirely out of the kindness of his heart either…..This is clearly a ploy for votes.

        But from a policy standpoint, given the fact that we’re going to continue to hobble the economy for the foreseeable future, it’s the right set of solutions. At the same time, it’s the wrong way to implement them, and I’m extremely uncomfortable with the way that Separation of Powers is being dismantled in the name of partisan politics.

        But given the DACA precedent, Trump would have been foolish not to take action.

      3. Really get summarization.

        The Dems have no problem following these rules. We shouldn’t either.

  6. Will most recipients of unemployment benefits be satisfied with $300, when they were getting $600 (especially when the opposing party was insisting upon continuing the $600 benefit)?

    The popularity of the unemployment benefits will depend upon how many recipients can get by on $300, when they have the fresh memory of what it was like to get by on $600. And they’ll know exactly which lone individual cut it by 50%. Maybe some will be thrilled with $300, together with the knowledge that they are saving “the government” a lot of money by not getting $600 anymore.

    And the chances of any red states bumping the $300 to $400 are pretty low. So, it is a definite 50% cut in trumplandia.

    If Trump really wanted to be diabolical, as the blackman kid so credits him, he would have kept the benefit at the same level. Then the democrats would have nothing (at least about unemployment benefits). But he cut it by half, when he had the discretion to do any amount. So he owns all of the cut.

    1. The big problem with $600 benefits was that, including the state benefits, many people were making more on unemployment than they were working.

      And that was making it very difficult to get people to go back to work.

      1. that was making it very difficult to get people to go back to work.

        This sounds good, but it really isn’t supported by the data, anecdotes notwithstanding. It’s cartoon economics.

        We have way more unemployed than job openings, and you are presuming that people are idiots who can’t understand that taking a job now, even if the pay is less than $600, will have considerable benefits in the not too distant future.

          1. 1) That’s a libertarian link.
            2) That’s not data; it’s an anecdote from an NPR story.
            3) There does not appear to be a labor shortage at the moment, so you’re fixing a problem that isn’t there.

            1. 1) Ad hominem.
              2) Plenty of linked studies in the review.
              3) You failed to show that there doesn’t appear to be a labor shortage. Show your work.

          2. the extra $600 made it enormously easy for management to cut costs and furlough basically everyone who 1) made less than $50,000 per year, and 2) was not directly part of the revenue production for our medical center.
            Short term gain for management bean counters, but short sighted too. Returning to scheduled patient care, rather than dealing with covid patients so much, has proven to be difficult when the people who schedule surgery, obtain insurance precertifications, run clinics, staff those facilities, and arrange pre-surgical covid testing, have not been around. So when we were ramping up staffing again to address a backlog of patient care, we discovered that the bottleneck was getting surgery and clinic ready patients back into the queue.
            Now calling people back to work has proven difficulty as much it seems for the lack of child care as for the comfortable leisure of pay without the hassle of work.

        1. Also this.

          https://www.cnbc.com/2020/05/09/it-pays-to-stay-unemployed-that-might-be-a-good-thing.html

          The truth here is, for some jobs, jobs that are needed (IE delivery drivers, warehouse workers, grocery store clerks, etc), it makes sense to stay home. They literally make far more from unemployment. $50,000 to $60,000 a year, or more. Which they don’t have to pay FICA on, that acts as another $4,000 to $5,000.

          I continually see signs in grocery stores asking for employees. Because grocery stores can’t afford to hire clerks at the rates they would need to, in order to compensate for their UE benefits. It’s more than $25 an hour….

          1. FFS read the title in the link you just posted!

            1. If all you can do is read the title, and not the entire article and the implications of it 4 months later when we’re trying to get people back to work, well…

  7. Zero analysis of the question of legality here, or even the question of the wisdom of using EOs to do all of the things.

    Mostly just talking about how this is another Trump masterstroke.

    Oy.

    1. Agreed.

      And what about a federal EO requiring states to pay a $100 per week unemployment insurance benefit? Of course when it is something that Dems come up with like requiring Medicaid expansion with the Feds initially paying for all of it the courts and the Republicans say hell no, no authority.

      The legal morass here is massive, exceded only by the hypocrisy.

    2. And of course another opportunity to complain about C.J. Roberts (why can’t he be more like that dreamy Kavanaugh!?).

      Given that the EO for the unemployment benefits mandates that states fund 25% of the cost in order to receive the 75% federal grant, it seems uncertain whether every state will be in a position to use the offered funds. There is a provision specifying that a pool of money in a relief fund can be used by states to cover their costs, but once that runs out they are on their own.

      I’ll be looking to see how the various governors respond over the week once their staff has read the actual language of the EOs. I’ll of course continue to come back here for the partisan commentary and hodge-podge of predictions.

    3. When the blackman kid’s boy (trump) does this sort of stuff, the blackman kid’s analysis is like an episode of sportscenter; “Trump’s strategy is diabolical”.

      He brushes off the legal questions to law professors when it comes to his boy, but jumps right to them when the socialist party is in power.

      So, don’t expect any legal analysis from the blackman kid unless his boy loses the election. He’ll be too busy admiring the diabolical strategy. Like trump himself not only read or understood any of this stuff, but like he actually came up with it.

  8. Trump took specific actions that will be very popular. Sure, law professors can fight over the separation of powers issues. But the people who benefit from these policies will gladly, or perhaps begrudgingly, accept the money. The optics for legal challenges are bad.

    This assumes that the states actually pay out the amounts that the executive order would require. But this seems a very large assumption to me, given the massive legal uncertainty about the legality of the EO. Why would the states take the risk of paying out money they wouldn’t be able to recover from anyone should the EO be ruled illegal? And is staying a hypothetical injunction only Roberts’ call? Isn’t normal practice to let the entire Court decide? And how would that go?

    I think all this creates is a massive cluster*ck. Which would be typical of this Administration, of course.

    1. Roberts has shown he will defer to the executive branch as long as Trump is in office. No question he will do so in this case.

      Question: Who even has standing to challenge this?
      Second Question: Who even has the political courage to challenge this?

      Inquiring minds want to know!

  9. I can’t wait to see what the Republican senators who opposed even McConnell’s bill on the grounds of cost will say about this.

    My bet: they will stand and cheer. Assholes.

    1. Amount of sympathy shown toward suffering Americans: zero.

      1. Nice reasoning Ben. Mind if I use it to rationalize implementing socialism via EO?

        1. If you want. It’s easy to express sympathy and say I/we oppose some totalitarian socialist seizure of health care or whatever other industry you covet.

          People who are completely without sympathy and are only interested in leveraging people’s lives and suffering as a political tool probably won’t be expressing any sympathy.

          1. Ah. So your reasoning that allows one to rationalize anything should only be used for the good policies, and not the bad ones.

            Or maybe its crap reasoning.

            1. You’re reading a lot into my observation of zero sympathy expressed toward suffering.

              It’s not hard to at least pretend to care about Americans.

              1. You made an argument that proves way too much.

                And now you’re backpedaling but have fallen into it being just an insult against bernard.

                Uh, way to go?

                1. How is observing something an insult?

                  If you don’t want people noticing a lack of humanity, it’s always an option to show some humanity. Life isn’t about petty political finger-pointing.

                  1. You said bernard11 doesn’t care about Americans suffering, because he opposes this action.

                    I noted that preventing American suffering can be used to rationalize a whole bunch of things.

                    You countered that you weren’t defending Trump’s policies, just calling bernard11 basically a sociopath.

                    Name-calling is the best case scenario for you.

                  2. I said no such thing about bernard11. I merely observed no sympathy or humanity in one comment. His comment was all name-calling and negativity. It’s sad to see so such petty political score-settling.

                    You need to stop imagining things and making up stories. The inability to tell reality from your imagination may be a sign of poor mental health.

                    1. Continuing to backpedal. Impressive.

                    2. Continuing to repeat the same thing in the face of increasingly dumb, dishonest fantasizing. The words are all right there.

  10. So ten years of hating on Obamacare was just hating on Obama. All that broccoli tyranny rhetoric was just political.

    1. Because a few months of relief payments during a crisis is exactly like permanently forcing every American into an unwanted healthcare arrangement.

      Because offering a lifeline to some people for 4 months is the same thing as threatening people and taxing people and coercing them to buy very expensive high deductible insurance they’d be better off without.

      1. The GOP screwed this up. Don’t pretend this is Trump the hero; this is Trump screwing up separation of powers because the Senate does not care enough about suffering Americans to pass a bill.

        This is a mess, and it’s all on the GOP coming and going.

        1. Keep beating that drum and pointing that finger

        2. So in short, cowardly congress lies supine as usual, more afraid of making a mistake than of hurting by inaction, and lets a president take the risks, even if of questionable legality?

          Sounds like just another year in the US.

          1. It’s not cowardice. Everything Pelosi does is a grift, either to get money for the Dem power structure or to fix the rules in her favor. The representatives of the rest of America try to prevent it as best they can.

            1. You are going to have a lot of trouble pinning this one on the Dems.

              I do like your declaring everything the other side does is automatically in bad faith. Always the sign of a healthy mind.

              1. Why do victims of fraud blame the people who defraud them? Must be mental health problems. Why did America blame Japan for attacking a Pearl Harbor? Mental health problems again.

                Do you have an alternate explanation for how ballot rules are related to economic suffering from Covid (over)reaction? The most obvious explanation is an attempt to alter the rules to favor her side. What is the explanation where it somehow helps Americans experiencing economic dislocation?

      2. an unwanted healthcare arrangement

        Yes, isn’t having health insurance horrible? O, how cruel of Pelosi and Obama to insist that people should have it!

        1. Not worth what some people were forced to pay — when before Obamacare they had much less burdensome options.

          But you’d have to actually sympathize with people to understand that. I imagine it doesn’t make sense when you view people’s lives as a living canvas to use to paint a form of twisted ideological self-portrait.

  11. Pelosi tried to hold the suffering people of the US hostage and Trump broke them out. Now she’s going to have to make a deal.

    1. Pelosi passed a relief bill, Ben.

      This is on McConnell.

      1. Pelosi declined to negotiate anything that could pass and become law. Hostage takers lost.

        1. What Trump is doing was in the Pelosi bill.

          McConnell didn’t even pass a competing bill.
          He couldn’t control his crazy caucus.

          Another way you can tell there was no hostage taking, and that this was the Senate playing themselves – the Dems said they could come down from 600.

          1. Steny Hoyer: “”Look, it’s not $600 or bust. … (House Speaker Nancy) Pelosi said the other day, which I thought was a great line: ‘We don’t have red lines, we have values.’ We’re going into these negotiations with values,”

            1. Posturing blindly accepted as fact.

              1. If Pelosi wasn’t willing to cut a deal, this would be some pretty boneheaded messaging.

  12. Regents is potentially a monster. Regents permits a President to give people benefits completely unauthorized by any legislation, and then ties the hands of subsequent administrations who try to undo it.

    Under Regents’ most extreme reach, a President can simply give his personal friends and family government money, property, tax breaks, whatever in the complete absence of either authorizing legislation or regulatory action, or unilaterally simply give himself and his friends a million or a billion or a trillion dollars whenever he feels like it, and undoing it will require at a minimum complex and time-consuming rule-making and years of litigation tied up in courts.

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Administrative Law

Judge Stephen F. Williams, R.I.P.

The sad passing of a jurist and teacher.

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I was saddened to learn the Honorable Stephen F. Williams died last night, reportedly due to Covid-19. He was 83.

Judge Williams was well known to those who focus on administrative law. He was appointed to the U.S. Court of Appeals for the D.C. Circuit by President Ronald Reagan in 1986. Prior to that, he had worked as an Assistant U.S. Attorney, and spent 17 years as a professor at the University of Colorado School of Law, where he specialized in energy law. Although he took senior status on the D.C. Circuit in 2001, he continued to hear cases.

I first got to know Judge Williams when I was working in Washington, D.C. He had taken an interest in an article I had written for Regulation about rent-seeking in environmental law and asked me to join him for lunch at the National Gallery. I had read some of his work, and some of his opinions, and had seen him on a few panels, but this was likely the first time we had actually met in person. (Put another way, before this lunch I certainly knew who he was, but there was no reason he would know who I was.) From that point forward, we would talk occasionally at various events, and while I was in law school we discussed the possibility of my clerking on the D.C. Circuit.

A statement issued by the court remembers Judge WIlliams for his "uncommon love of ideas, an extraordinarily broad-ranging intellectual curiosity, an infectiously good-spirited demeanor, and a joyful sense of humor." This captures his essence quite well. He was an important jurist, a curious and independent thinker, and a kind man. He will be missed.

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  1. He had a good opinion in the 1980’s on failure to warn and information overload. Essentially argued that the true cost of the warning isn’t just the cost of putting it on the label, but the cost of diluting the effectiveness of other warnings.

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President Trump's Four Executive Actions

(1) Student loan payment relief, (2) assistance to renters and homeowners, (3) deferring payroll tax obligations, (4) assistance for COVID-19.

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Today, President Trump took four executive actions. I hope to dive into each action in detail later. (Only one is actually an executive order, the rest are memoranda). Here are links to each action:

  1. Memorandum on Continued Student Loan Payment Relief During the COVID-19 Pandemic.
  2. Executive Order on Fighting the Spread of COVID-19 by Providing Assistance to Renters and Homeowners.
  3. Memorandum on Deferring Payroll Tax Obligations in Light of the Ongoing COVID-19 Disaster.
  4. Memorandum on Authorizing the Other Needs Assistance Program for Major Disaster Declarations Related to Coronavirus Disease 2019.

 

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  1. What, no analysis showing that the Imperial Presidency is perfectly fine (as long as it’s Trump)?

    1. These were just issued. Expect a sea of analysis in the coming days.

      1. Blackman already wrote the piece I predicted he would…

        Here’s his applause paragraph:
        Trump also put Vice President Biden in a tough spot. All of these orders expire in December 2020. Trump said if he is re-elected, he would continue the policies, and forgive some of the loans. What is Biden going to do? He favors the policy, opposes the executive actions, and prefers legislation? Again, law professors love those sorts of arguments. I have been repeating that line for years with respect to DACA. But average people will not be happy with it. Biden is stuck between a rock and a hard basement.

        Tl;dr Trump 2020!

        1. So you like a guy who completely disregards the constitution?

          1. The distance you got on that goalposts toss is awesome enough. But the way you transformed them mid-flight into straw men, that’s beyond impressive.

  2. This is going to be a legal shit show like no other.
    State UI benefits are connected to federal law, and federal law does not authorize the extra $400, so how can this be legally implemented at the state level without new state laws?
    The $100 threshold is a kicker. How difficult will it be for states to reprogram their systems to take that into account?
    Who would have standing to challenge this?

  3. Y’know, I kinda expected the Executive Orders to be 140 characters or less.

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Limiting Weddings at Restaurants, While Allowing Ordinary Dining at Restaurants, Violates Equal Protection

"the activities that will be engaged in during a wedding will be much the same as those engaged in while dining at a restaurant, including having groups of individuals of no more than ten in number at tables seated for dining."

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From DiMartile v. Cuomo, decided yesterday by Judge Glenn T. Suddaby (N.D.N.Y.):

… Plaintiffs' Complaint asserts the following five claims:

(1) a claim that Defendants' 50-person gathering restriction violates Plaintiffs' First and Fourteenth Amendment rights of free exercise of religion by "forbidding them to preside over or participate in religious weddings according to the dictates of their conscious and religious beliefs";

(2) a claim that the 50-person gathering restriction violates their First and Fourteenth Amendment rights of freedom of speech, assembly, expression and intimate association by forbidding them to gather with their invited guests for a religious purpose;

(3) a claim that the 50-person gathering restriction violates their Fourteenth Amendment rights of equal protection and substantive due process in that it treats religious conduct (i.e., weddings) differently than non-religious conduct (including gatherings for mass demonstrations, graduation ceremonies, special education classes, and restaurant patronage);

(4) a claim that Defendants have acted ultra vires in enacting the many restrictions related to COVID-19 pursuant to the Governor's emergency power, including the 50-person gathering restriction; and

(5) a claim that Plaintiffs are entitled to relief pursuant to N.Y. C.P.L.R. Article 78 because Defendants' actions are arbitrary, capricious, an abuse of discretion, and a violation of lawful procedure….

Because the Court finds Plaintiff's equal protection claim to be the strongest of the five they assert, the Court will focus its analysis on that claim.

The Equal Protection Clause "is essentially a direction that all persons similarly situated should be treated alike." "[T]he equal protection guarantee … extends to individuals who allege no specific class membership but are nonetheless subjected to invidious discrimination at the hands of government officials." …

To succeed under a selective enforcement theory, a plaintiff must establish that (1) he, "compared with others similarly situated, was selectively treated," and (2) "the selective treatment was motivated by an intention to discriminate on the basis of impermissible considerations, … to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to injure the person." A plaintiff must identify comparators that "'a reasonably prudent person would think were roughly equivalent'" to the plaintiff, though the plaintiff does not need to show an "exact correlation" between them and that similarly situated person.

To succeed under a class-of-one theory, a plaintiff must establish that he was "intentionally treated differently from others similarly situated and 'there is no rational basis for the difference in treatment.'"

As to the existence of a similarly situated comparator, Plaintiffs point to the fact that each venue at which they are scheduled to have their weddings also operates as a restaurant. As asserted in Plaintiffs' Verified Complaint, and as argued in their papers and at the hearing, the activities that will be engaged in during a wedding will be much the same as those engaged in while dining at a restaurant, including having groups of individuals of no more than ten in number at tables seated for dining.

Read More

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  1. So, part of the problem here is, instead of regulating an action or actions, you’re characterizing what you believe a wedding (reception) does, and using that characterization as a basis for banning the wedding.

    The issue with that characterization, is that not all weddings are the same.

    If this particular wedding says that they will all wear masks, seat no more than 10 to a table, and ban dancing, and those are the rules that are acceptable for a dining establishment, then there is no functional difference between the two.

    If you believe, for example, there should be an additional regulation in dining establishments that bans patrons from visiting more than 1 other table at the dining establishment during their stay, then that would be a potentially allowable regulation. But what is problematic is allowing such a visitation for normal dining, but banning it for weddings. Likewise, simply assuming a wedding will do this, and using it as a basis to ban the wedding should not be allowed.

    It is a characterization of a religious/social event, and using the characterization to ban it, especially in the absence of laws that prevent such action in a secular environment. And that is problematic.

    For those who believe a wedding will just “break the rules” so should be banned a priori, again you cannot ban a religious action because you think it will, in the future, break the rules. That’s very problematic.

    1. All policies are going to require some coarse-graining. You can’t have a bespoke policy for every event.

      Trying to make it about conduct not events makes enforcement impossible.

      Trying to make this about some targeting of religion is pretty silly; there is zero evidence of that, and weddings are oftentimes quite secular.

      1. Conduct is enforced all the time, when it is desired to be enforced.

        When the law relies on “characterizations” of events, peoples, religions, etc, it gets in severe trouble.

        1. Conduct is enforced all the time, but it is generally impossible to enforce conduct 100%. If 100% enforcement your goal, you want to apply your policies to activities, not conduct; that’s much easier to enforce to a high level of compliance.
          That is the policy tradeoff one must consider.
          Given that 100% compliance seems to be the goal here, I don’t believe it’s a legitimate criticism that they didn’t tailor this to conduct.

          Plenty of laws and rules rely on characterization of events or people. No transgenders in the military. No trucks on this road. You must be this tall to ride.

          1. Your examples are false.

            The “restrictions” in terms of trucks refer to weight, how trucks are defined and the weight limits certain roads have. It’s akin to having limits on the number of people at a gathering.

            Height limits on rides, likewise, refer to a numerical value, devoted around safety.

            A global “characterization” would be something like “No children on this ride” on the assumption that children are all too short. But some aren’t.

            1. No, AL, the restrictions refer to trucks. That’s what the signs say. And that’s my point – they don’t refer to weight because that would make enforcement impossible.

              Height limits on riders are a class-based restriction, ignoring whether a specific individual would not be suitable for a ride. Which is what you want.

              I see you ignored my gay/trans example.

          2. You may not ‘trade off’ our free exercise liberty, Sarcastr0. We are well past the point where deference is due because of ‘pandemic emergency’. The emergency is over.

            1. The emergency is over. The Plandemic continues apace. Thank you XY.

              1. Your crazy failure to face reality is not helping your fellows here.

                1. Actually your crazy failure to face reality is not helping yourself.

                  1. You in the Plandemic crowd as well?

            2. I understand you want Smith to be overruled, but it hasn’t been.

              This is not a free exercise issue. Unless you believe pandemic-related regulations are all free exercise issues, in which case I believe you fundamentally misapprehend the purpose of government.

              1. No, you are.

                Government is to protect rights and life. They are not doing either with the regulations.

                1. How does this not protect life?

                  1. It is a failure to protect liberty, Sarcastr0. The function of government is to protect life, liberty and property. Our liberties must be protected and that also must mean equal treatment under the same law.

                    1. PH2 seems to argue this reg protects *neither* liberty *nor* life, which seems to me hard to support.

                      All COVID-based restrictions are going to effect liberty. A bare invocation of liberty is not a sufficient argument. It’s going to be the usual nuanced dance between judicial minimalism and rational policymaking.

                      I’m not sure if this is rational policymaking – give the studies I see, leaving anything closed while you open up in-person dining requires some ‘splaining. But I was replying specifically to an argument AL made that I thought was a bad one to use against this policy.

          3. If 100% compliance was their goal they wouldn’t be setting limits like 50 participants or 50% occupancy. No, they’re doing some balancing of compliance versus opening up, and picking and choosing what’s more important to open up and in their judgment worth the risk.

            Which is normally fine, until it comes to things like religion and speech, then their discretion is constrained. There isn’t an explicit free-standing “right to weddings” written in the BoR so it’s a little more borderline, but there are enough SC cases on marriage that one might guess weddings aren’t completely unprotected.

            1. ducksalad – my point is that a limit like what you are talking about would be impossible to enforce, whereas a limit based on type of event is easier to enforce.

              I don’t buy that weddings are inherently religious.

              1. I agree that weddings aren’t inherently religious. I was thinking that protection for weddings would come from the same reasoning that says governments can’t place arbitrary regulations on marriage and sexual intercourse.

                1. I believe that is indeed the law – the case above was analyzed under rational basis.

                  I disagree with how the court came out in that I don’t think this is arbitrary, but I (and you) appear to agree with the rubric used.

                  I was making a point about policymaking contra AL’s argument that you should require individualized analysis or else your policy is overbroad. I’m a bit of a policy analysis dork.

              2. ducksalad – my point is that a limit like what you are talking about would be impossible to enforce, whereas a limit based on type of event is easier to enforce.

                I don’t see why rules based on the type of venue are so much harder to enforce than rules based on the type of event.

                Setting aside whether these rules are really enforced at all barring a business going on social media and and yelling about how it’s going to flout these Fascist Rules Designed to Bring About Bill Gates’ Hegemony, the inspector goes in (or peers through the window). He looks at how people are behaving. He doesn’t need to ask whether it’s a wedding party or just dinner; he just needs to see whether the venue is at appropriate capacity and whether the customers are socially distancing.

                1. Type of venue could indeed work – AL was arguing the regulation must be tailored to behavior.

                  I learned in my program management class that spot inspection regimes are fine if you just want general compliance, but not if you want high levels of compliance.

          4. I can’t think of a law where the ideal enforcement level is 100%.

            1. Fair enough – the point is you want higher levels of compliance than a conduct-based random inspection regime will allow.

      2. No you make it very generalize and just deal with it. Governments are picking and choosing, and that violates equal protection.

    2. Exactly. They are picking and choosing according to their own biases.

      The court got it exactly right. There is no rational basis to pick and choose.

  2. Isn’t it in the Constitution that any entity who would have a wedding in which participants must wear masks and stand six feet from one another isn’t a born or naturalized Citizen, but an alien, whatever the religion?

  3. As asserted in Plaintiffs’ Verified Complaint, and as argued in their papers and at the hearing, the activities that will be engaged in during a wedding will be much the same as those engaged in while dining at a restaurant, including having groups of individuals of no more than ten in number at tables seated for dining.

    Mathematically, a gathering of 10 people has a finite number of ways to interact. A gathering of 50 people also has a finite number of potential interactions, but the number is exponentially greater. A gathering of 10 people at a restaurant will usually not interact much with people outside that group. Did anyone ever attend a wedding where frequent table-to-table interaction among the guests, and between the guests and the wedding party, was not only encouraged, but also widely practiced? They are not the same kind of gathering—wedding interactions among larger groups have far more potential to spread contagion than dining interactions among smaller groups.

    1. I’d be more inclined let you get away with “exponentially” if you hadn’t prefaced it with “mathematically”.

  4. Can we have a divorce trial at a restaurant too?

  5. “Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”

    — Justice Brandeis, _Olmstead v. NY_ (1928)

    1. “The robber barons cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end, for they do so with the approval of their own conscience.”

      – C.S. Lewis

  6. So 50 people outside a restaurant conspire to break up into groups of 10 and act like they don’t know each other…

    Apparently it’s like that rule where you have to report cash transactions over $10,000. You’re still busted if you do less than $10,000 in cash if your intent was to not report.

    1. “Structuring” – technically complying with the law is a crime. Not complying with the law is also a crime. Now they’ve got you.

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Charges Dismissed in Prosecution for Re-Tweeting Request to Identify Police Officer

This is the Georgana Sziszak case I blogged about yesterday.

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For more on the case, the dismissal, and why the dismissal was legally necessary, see here.

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Today in Supreme Court History

Today in Supreme Court History: August 8, 2009

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8/8/2009: Justice Sonia Sotomayor takes oath.

Justice Sonia Sotomayor

The Eleventh Circuit Grapples With Title IX, and the Equal Protection Clause, in the Wake of Bostock

Judge Martin and Chief Judge Pryor vigorously disagree over how to characterize a bathroom case from Florida.

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On Friday, a divided panel of the Eleventh Circuit decided Drew Adams v. School Board of St. Johns County, Florida. This case found that Title IX requires a school to allow a transgender boy to use the boys' bathroom. Bostock did not decide this question. Justice Gorsuch insisted, "we do not purport to address bathrooms, locker rooms, or anything else of the kind." In dissent, Justice Alito seemed skeptical. He wrote:

Thus, a person who has not undertaken any physical transitioning may claim the right to use the bathroom or locker room assigned to the sex with which the individual identifies at that particular time. The Court provides no clue why a transgender person's claim to such bathroom or locker room access might not succeed.

Alito's dissent, which raised a parade of horribles, may come to resemble Justice Scalia's Windsor dissent. In the lead-up to Obergefell, district courts gleefully cited Scalia when they set aside state marriage laws.

Judge Martin wrote the majority opinion in Adams. Chief Judge Pryor wrote a vigorous dissent. Indeed, he wrote, "I dissent," rather than the traditional "I respectfully dissent." (I call these mic-drops disrespectful dissents). The majority and dissent disagreed on a basic question that affects the framing of both the Title IX issue, as well as the Equal Protection issue.

According to the majority, the school's policy singles out transgender students for special burdens. And, per Bostock, "sex" is an essential ingredient in that form of discrimination.

The School Board's bathroom policy singles out transgender students for differential treatment because they are transgender… identity." In this way, the policy places a special burden on transgender students because their gender identity does not match their sex assigned at birth. And, as this Court announced in Glenn, "discrimination against a transgender individual because of [his or] her gender-nonconformity is sex discrimination, whether it's described as being on the basis of sex or gender."5 663 F.3d at1317; cf. Bostock v. Clayton County, 590 U.S. ___,140S. Ct.1731, 1741(2020)(confirming that "it is impossible to discriminate against a person for being . . . transgender without discriminating against that individual based on sex"). We therefore apply heightened scrutiny to the School Board bathroom policy.

Chief Judge Pryor views the case in a very different fashion: denying a student access to a bathroom based on his biological sex is not discrimination on the basis of transgender status. He writes:

To be sure, Bostock clarified that "discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex" in the context of employment discrimination under Title VII. Id. at 1747; see also Glenn v. Brumby, 663 F.3d 1312, 1318 (11th Cir. 2011) (holding that discrimination based on gender nonconformity constitutes sex discrimination regardless of whether the victim is transgender or not). But this appeal concerns the converse question: whether discrimination on the basis of sex necessarily entails discrimination based on transgender status. Of course, a policy can classify on the basis of sex without also classifying on the basis of transgender status. See, e.g., Nguyen, 533 U.S. at 60. Indeed, Bostock expressly disclaimed reaching any conclusion on the permissibility of sex-separated bathrooms and locker rooms. …. So the relevant question is whether excluding students of one sex from the bathroom of the other sex substantially advances the schools' privacy objectives. The question is not, as the majority frames it, whether excluding transgender students from the bathroom of their choice furthers important privacy objectives

As I read Pryor's dissent, the fact that Adams is transgender is irrelevant for the Title IX analysis. What matters is that the school has separated bathrooms by sex.

The majority opinion elides this entire analysis by misunderstanding both the classification and privacy interests at issue. It contends that the policy triggers heightened scrutiny not because it separates bathrooms by sex but because it purportedly imposes "differential treatment" on transgender students. Majority Op. at 12. In doing so, the majority misstates the school policy, conflates sex-based classifications with transgender-based classifications, and contravenes Supreme Court precedent. Compounding its errors, the majority then ignores fundamental understandings of why bathrooms are separated on the basis of sex by rejecting long-standing privacy rationales for sex-separated bathrooms.

The majority opinion says it is not necessary to define sex, because the discrimination was on the basis of transgender status.

Our dissenting colleague accuses us of shirking our duty because we do not delve into the meaning of "sex" in Title IX. To the contrary, we follow the lead of the Supreme Court in Bostock, which found it unnecessary to perform that analysis as to Title VII. We need not interpret the term "sex" to recognize that Mr. Adams suffered discrimination at school because he was transgender.

The majority opinion adds that the dissent does not recognize what it means to be a transgender boy. Therefore, the dissent does not consider the relevance of Adams's transgender status:

The dissenting opinion's central flaw is that it does not meaningfully reckon with what it means for Mr. Adams to be a transgender boy…. Because the dissent does not consider Mr. Adams's transgender status analytically relevant, it expresses the view that allowing Mr. Adams to use the boys' restroom erodes restroom divisions for all. This argument cannot stand together with the fact, found by the District Court, that Mr. Adams is "like any other boy."

And, the majority contends, that the same but-for causation from Bostock resolves this case:

This being the Board's view, it argues that Mr. Adams was treated just the same as all girl students at Nease High School. But the School Board, like the dissenting opinion, misapprehends Bostock. Bostock explained that if an employer fires a transgender female employee but retains a non-transgender female employee, this differential treatment is discrimination because of sex. In the same way, Mr. Adams can show discrimination by comparing the School Board's treatment of him, as a transgender boy, to its treatment of non-transgender boys.

This dichotomy between the majority and the dissent dictates the outcome of the case. Martin and Pryor lay out the two positions cogently. They were writing about two completely different cases, like two ships passing in the night.

I am inclined to think Pryor was right, but I also thought Bostock was wrong. Indeed, throughout the opinion, I felt like Pryor was fighting with one hand tied behind his back–more precisely, Neil Gorsuch tied up that hand. The majority cited Bostock over and over again to promote a hyper-literal reading of Title IX, that rejected any extraneous evidence to give meaning to the statute–even as Pryor cited decades of precedent and practice that recognized the validity of sex-segregated bathrooms. Indeed, Pryor cites FN19 of United States v. Virginia, in which the Notorious RBG approved separating bathrooms based on physiological differences. (I flagged that opinion as grounds for her cancellation). He wrote:

Not long ago, a suit challenging the lawfulness of separating bathrooms on the basis of sex would have been unthinkable. This practice has long been the common-sense example of an acceptable classification on the basis of sex. And for good reason: it protects well-established privacy interests in using the bathroom away from the opposite sex

I don't know how this case shakes out on appeal. Justice Gorsuch's textualism rejects "common sense." And Bostock and McGirt teach us that stare decisis only cuts in favor of Gorsuch's reading of statutes, and not against it. Plus, we know he is committed to but-for causation. But the bathroom case is different than Bostock because the segregation is expressly sex-based. Stay tuned.

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  1. Oh, Brave New World.

    This foolishness is not going to end well.

    1. Worse, it has gone on long and will not end at all.

    2. Do tell, Ed. Where does it end?

      1. The Supreme Court’s Bostock decision did not reject the biological meaning of sex; it merely said that transgender people can’t be fired for not conforming to expectations based on their biological sex, because that is penalizing someone for not conforming to a gender stereotype.

        But the 11th Circuit decision deals with bathrooms, which are a permissible area for taking sex into account both under Title IX regulation and 20 USC 1686, which create an express exception for permissible use of sex. That easily distinguishes the 11th Circuit case from Bostock, so Judge Pryor is right to dissent. When Title IX was enacted, sex meant biological sex. And that meaning must be enforced by courts, because the meaning of terms in a civil-rights law are based on their meaning when the law was enacted, not today. For example, Jews are covered by the race discrimination law 42 USC 1981, even though no one today thinks of Jews as a race, because when 42 USC 1981 was enacted, Congress thought that Jews were a race. See Shaare Tefila Congregation v. Cobb, 481 U.S. 615 (1987). Similarly, sex in the Title IX statute means biological sex, because that is what it meant to Congress and society back when Title IX was passed.

        Even if sex did mean transgender identity rather than biological sex, the 11th Circuit decision still got the Title IX issue wrong. If that were true, then the school district’s policy doesn’t discriminate based on sex, but rather biological attributes not covered by Title IX. Discrimination based on factors not covered by Title IX is not forbidden by Title IX. A school, for example, can assign a particular bathroom based on age or grade level (such as just for kindergartners) or other factors, without running afoul of Title IX, which only restricts sex discrimination, not non-sex-based discrimination. Civil-rights laws don’t create a right to privileges based on sex. See Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997) (Title VII creates no rights to sex-based or race-based preferences).

        1. So it ends with gender neutral bathrooms. Maybe via a misinterpretation of Title IX. OK.

          Thing is, somehow that’s not what Ed is referring to.

          1. Teenaged boys being what teenaged boys are, a half dozen (or more) will decide to declare themselves “male lesbians” as a dare. They then will not only be showering with the girls but admiring their bodies — with total impunity.

            30 years of dealing with teenagers tells me this will happen. And that the parents of the girls won’t be pleased.

            1. Our society has learned how to deal with malcontents and disingenuous, anti-social jerks . . . just look at how our bigots and clingers have been relegated to the fringe, to a point at which our bigots don’t even want to be known as bigots anymore.

              Don’t underestimate America’s liberal-libertarian mainstream, which has built a strong, resilient, decent, improving nation.

              1. Did you happen to read the Cape Elizabeth decision?

                1. No.

                  Did it decide that the tide had turned in the culture war?

                2. I just refreshed myself on which recent case that was, and I don’t see the relevance unless you’re just using it as a placeholder to say that in the aforementioned scenario, you’re going to end up with rapes.

              2. Except now we are encouraging the malcontents and disingenuous, anti-social jerks. This is a great example of that. We cannot kick them out, because they are protected now, due to YOUR rules.

        2. The real problem with Bostock is that it tried to address a mental issue as if it was a title 9 issue. All the will condoning a pseudoscience of mental illness.

          Either side of title 9 is totally irrelevant to addressing the true underlying issue

  2. Gender theory really is the creationism of the left isn’t it? At least in the case of creationism nobody was around 6000 years ago to say for sure what happened while Gender theory is proven wrong in front of your face every moment of the day.

    1. We have neuroscience now.

      Plus, there’s plenty of examples of cultures recognizing people outside of the gender binary.
      https://en.wikipedia.org/wiki/Gender_system#Non-European_gender_systems

      1. I agree completely, neuroscience shows sex is objective and hardwired from biology, there are huge fundamental and objective differences between males and females and there is no such thing as gender fluidity, the rainbow is actually two very large bins and a number of smaller rare ones that should be determined by medicine/science and not a facebook announcement and you can’t just change it by chopping off your privates and taking some hormones. Thanks for clearing that up.

        1. First, no. There are not only 2 big bins of brain-genders, where are you getting that? More importantly, along the continuum, there are some examples of individuals switching where they are in a non-continuous way from day to day.

          It also shows that the difference between nature and nurture in the brain are not so far apart – learned behaviors can cause measurably physical differences.

          Dunno where you’re getting your neuroscience, but I suspect it’s your hat.

          1. Sarc, you misread his comment. Deliberately?

            He did not say “only”. You added that. Strawman. He said 2 very large bins and a number of smaller rare ones.

            1. Fair put on the only, but my point is that it’s a continuum, versus his bins.

              1. It’s a continuum… with some really big bathtub curves at either end.

                1. Population-wise, maybe – I haven’t seen any population studies.

                  But in terms of allowable brain behavior, it’s a continuum.

                  1. I can buy 20 of the same type and brand of hammers from Lowes and technically say I bought 20 different kinds of hammers. But really for all intents and purposes I’ve only bought 1 type of hammer. The reality is there is two bins with a huge gulf between them separated by characteristic, objective, and fundamental differences. There are differences within these bins sure ie woman A might produce 0.01% more testosterone than woman B but they do nothing to change the reality of nature. We’ve done fine for billions of years with two sexes and it still serves us well in biology for the majority of animals with some exceptions. You go on twitter and see how unhappy the majority of bluecheck marks are to see how much ‘the rainbow’ brings to the table.

                    1. You’ve clearly read nothing on the subject.

                    2. Pray tell what (objective fact) in the literature contradicts what I said?

                    3. https://www.ncbi.nlm.nih.gov/pubmed/27113561

                      Spouting common sense in a science fight, eh?

                    4. That’s wrong.

                      The rest of the science is clear. There are two big bins.

                      Stop being anti-science.

                    5. Doesn’t sound like you’re citing anything scientific, PH2. Your fervent feeling is not science.

                  2. I’m not saying it’s not allowable. I’m saying that the bins are more statistically outsized than you are suggesting.

                    1. I was making no statement about the population’s distribution along the continuum.
                      As you can see above, Amos seems to be arguing against the existence of the continuum at all.

                      But as to your population distribution thesis, you could be right. Or you could be wrong. I’ve seen no science on it, and certainly don’t trust my gut on something like this.

          2. Science says there are 2 big bins.

            You dont hate science do you?

            1. You don’t know the science, do you?

  3. I remember when gender was a term of the grammarian’s art and largely ignored. Would that it were, still.

    1. If you want an interesting bit of history reading check out the guy who hijacked the term gender and what happened to the people he applied his new theory to. Not something you’ll learn in Gender 101.

  4. So, if I understand the ‘transgender’ aspect of Bostock, it’s now contrary to title IX to impose any consequences on somebody for lying about their sex, because you have to take their sex into account in order to know it was a lie.

    1. What sort consequences are there?

      1. What sort of consequences are there usually, for lying on an employment application?

        1. Gender is not the same as work experience.

          Why would someone being one gender versus another matter on an employment application?

          I can think of 2 issues.
          Gender-based affirmative action, in which case the question of lying becomes one of sincerity, not the facts presented here.
          Gender-based discrimination, in which case the issue is with the employer, not the employee.

          1. Say you are hiring someone to assist women in the proper fitting of a bra. How do you think it would affect your business if you gave that job to a person who presents as a male, but declares that they are female?

            1. This is just the old ‘I need to kowtow to my no-doubt prejudiced customer base’ excuse. That hasn’t flown since the 1960s.

              1. You think it is prejudice that makes a woman not want a strange man fondling their breasts?

                1. Of course he does!

                2. No more so than a strange woman fondling their breasts.

                  I don’t think a bra fitting is quite like you picture it to be…

              2. This is just the old, “I’m going to screw with everybody else’s lives, and yell that they’re bigots if they complain”.

                1. Yeah, we all know you hate the CRA.

                  1. And we know you hate women and science.

              3. No, its the old “let’s protect against bad people and follow science” reason.

                You’d prefer women be molesting by men, because of what the men say.

                You are anti-science and anti-feminism.

          2. BFOQs? Did you leave those out on purpose?

            1. When is biological sex a BFOQ?

              1. Modeling? It would be very weird for biological men to model women’s lingerie, and not very useful for women trying to imagine how it might appear on a woman (ie,themself).

                1. That’s about body shape not specifically gender, though, isn’t it?

  5. We now have a Supreme Court that says, in the same opinion, that men are women, and women are men, and they have to be treated the same, but you have to determine if a person is a man or a woman to determine if they were discriminated against.
    Welcome to the revolution.

    I guess we have to become the first nation to write into it’s constitution that, in fact, men are men and women are women, and no law can say otherwise.

    1. No, the Supreme Court’s Bostock decision doesn’t say that. But the majority on the 11th Circuit panel does endorse reasoning is as absurd as that. Both the majority and dissenting opinions in Bostock were plausible; but the 11th Circuit decision is just wrong. The Title IX regulation expressly permits — but does not require — sex-based classifications for bathrooms, and Title IX does not create sex-based entitlements to bathroom access, it merely limits the use of sex classifications. Courts have ruled that civil-rights laws like Title VII and Title IX don’t create race or sex-based entitlements, see Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997). Bostock didn’t say biologically female “transgender men” are men for purposes of Title IX, which was passed back when sex clearly meant biological sex to the law’s sponsors (civil rights laws’ terms are interpreted based on their meaning as of the time such laws were passed, not today, see the Supreme Court’s Shaare Tefila decision; the Supreme Court’s Bostock decision merely said you can’t generally penalize transgender people for not acting in accord with their biological sex. But bathroom classifications are the subject of an express Title IX exemption, via regulation, and 20 USC 1686. Bostock didn’t reject the biological basis of sex, it just limited penalizing people who don’t act in accord with their biological sex. But here, the bathroom regulation itself carves an exemption.

  6. Can the schools dodge the question of sex by simply labeling the doors “Penis” and “No Penis”? Sex and orientation don’t matter.

    A friend told me, “My daughters have the right to shower without having penises waving in their faces.” That’s the only real issue here.

    1. I would say just label everything XX and XY. The very fact XX can get pregnant means that is a distinction with a difference and therefore it passes the rational basis test.

      That said the long term solution is more privacy for everyone and perhaps doing away with gym class and high school sports. So in a city like NYC in which students can take public transportation high school is already more like junior college and parents don’t obsess over the local high school football team or basketball team or volleyball team. So once autonomous vehicles become safe I would have high school be more like community college along with a robust online component.

      1. I guess they were right, the internet doesn’t make people more stupid, it just makes their stupidity more visible.

        https://en.wikipedia.org/wiki/Intersex

        1. Or what about conjoined twins of opposite genders?? The ADA covers people with actual medical conditions nitwit.

    2. Well, maybe.
      However, since ‘same sex attracted’ persons can shower with those they are attracted to, how is it not discrimination to prohibit ‘opposite sex attracted’ persons from showering together?

      1. Anyone that supports the status quo is an idiot…especially in light of the trend with respect to bathrooms and locker rooms being clearly towards more privacy. Why men find it acceptable to pee in a trough at a sporting event elbow to elbow with other men is beyond me…I could see why men at The Manhole would like that bathroom setup though. 😉

    3. Can the schools dodge the question of sex by simply labeling the doors “Penis” and “No Penis”?

      Nope. Web search (if you hate yourself enough) the phrase “some women have penises” to see why that won’t work.

      Well… hrm. It might work, I suppose, since they wouldn’t be saying anything about gender or sex at all, merely the presence of a particular organ. But I suspect that The Usual Suspects would not find it acceptable.

  7. This isn’t just about public bathrooms.

    There are students raised on testosterone competing in “women’s sports” where, surprise, they can run faster, lift more, and hit harder than those raised on estrogen. Considering college scholarships, endorsement deals and such, the real-world stakes in sports are much higher.

    The irony is that the main purpose of Title IX is to get girls into sports. Decisions like these, made in the name of Title IX, will once again make it nearly impossible for people raised on estrogen to compete, thereby effectively repealing Title IX.

    1. I’m just waiting for the lawsuits over the Title IX equity scholarships — the “non-cis-gendered” females (or whatever we are permitted to call them this week) *are* better athletes and would merit the scholarship on that basis. On the other hand, the biological females are the ones for whom Title IX intended the scholarships — there will be lawsuits between the T and L as to who is and who isn’t a woman.

      In a macabre way, I find this all quite hilarious because the biggest problem has been the elimination of the less well known *male* sports in the name of Title IX compliance — college women are less interested in athletics than male students and hence a lot of male students are being denied the ability to play a sport because not enough women want to.

      1. Do you like it when the gladiators wrestle??

        The irony I see is that in American bathrooms and locker rooms we already have people physically attracted to others of the same sex in those rooms!?! So the solution is more privacy for everyone. Furthermore our public bathrooms are suboptimally designed with respect to public health and the solution is more privacy which disease spread through flushing and poo plumes.

        1. Do you have any idea what would be happening in private showers in a high school?

          1. High school bathrooms have stalls. College dorms have private showers in communal bathrooms. In the 1990s the old college gym at my college had a bathroom with toilets with no stalls…the trend is towards more privacy and not less. How can hetero men support the status quo when gay men are in the catbird seat?? Plus daddy daughter day is more difficult with gender based bathrooms…to say nothing of how unhygienic our public bathrooms are currently due to stalls only being partial and poo plumes filling the air.

            1. A lot of high schools have removed the doors from the bathrooms.

              It isn’t just smoking (and not just tobacco) and drinking but outright drug use. You are responsible for those little darlings, you have to prevent them from doing it. And even “good” high schools have IV drug use now — IV drug use.

              And then they’ll be having sex and/or committing rape and not only is there no way to avoid the liability of the latter (remember, these are minors that you are responsible for) but parents don’t like the former.

              And then you’ll have fights and assaults — why do you think there are so many cameras in the hallways now — and while you can’t put a camera in there, you can put a teacher.

              College is different — they are adults. Not so in K-12.

              1. Everyone I knew in PE in high school hated it so if I had my way I would just get rid of it and that solves most of the problems. I would also get rid of foreign language classes because the dumbest person in Mexico speaks better Spanish than the guy I know that took Spanish at supposedly the top Spanish language college department.

    2. Well, since the Communist Chinese Virus will kill off all sports, that is moot.

  8. Under this regime, how can any male be denied access to the female bathrooms and showers?

    Ones belief about themselves cannot be observed or verified.

    1. Worse, throw in yesterday’s asinine Cape Elizabeth decision and male students will have a “free speech” right to discuss the female bodies that they are showering with.

      There is a reason why I think that decision was wrong.

  9. We have no constitution — it had been repealed by a death of a thousand idiotic cuts.

    Laws that have no concrete meaning and change based upon whim mean nothing (and everything)

    1. Area Man Passionate Defender Of What He Imagines Constitution To Be.

      1. You are right, busted — buggery and showering with chicks: totally the reason for the American Revolution. Freedom of speech, religion, and making a buck?? — MEH.

        The right to kick your A$$? There in that penumbra — the government sees it!

        1. To a transgender, this is freedom.

          But keep on with your tantrum about how everything you don’t like makes America illegitimate.

          1. And to a pedophile a day care is a dating service.

            1. Comparing transgender people to pedophiles in order to declare that the Constitution is over does not really disabuse my of my initial post that you are a passionate defender of what you imagine the Constitution to be.

              1. No, it’s a super-secret text only specially chosen gnostic judges can see and interpret.

                Progressivism is a cult — your religion SUCKS

                1. You keep comparing liberalism to a religion, but when I bring things like science or the actual Constitution into the picture, you retreat to insults and dogmatically repeating your thesis over and over again. Like a chant, or a ritual.

                  1. You haven’t brought any science to the argument, nor the Constitution. Scientism that supports your viewpoint, yes, and a deflection in your opinion on what is freedom to transgenger folks. Pretty presumptuous, that. Do you know all the transgender people, or, like any quasi-religious group, you just decide that you speak for each and all? This is one of the reasons people say your in-group is a cult. This, and this shared mindset, purity controls, refusal to accept new information -dogmatic repetition of phrases of pseudoscientific terms and utter nonsense that supports the in-group eorldview. Honestly, the one thing that holds you together is putting other people down. Other people are anti-science. Other people are classist, entitled, privileged. Other people don’t engage with the argument, but attack the person. That is a lie.

                    1. I was referring to a contemporaneous discussion on a different thread.

                      Don’t need to speak for every transgender to take issue with comparing them to pedophiles.

                      Look at how people here talk about Roberts and then think about purity controls.

  10. I think both the majority and dissent miss the mark.

    The majority said, “we follow the lead of the Supreme Court in Bostock, which found it unnecessary to perform that analysis [the meaning of sex] as to Title VII.” But as Hans Bader pointed out in comments in this thread, that’s factually in error. The Bostock majority assumed “that sex […] referr[ed] only to biological distinctions between male and female.” The only thing Bostock informs us about this case is that but-for his sex being female, Drew would have been able to use the boy’s bathroom. But, the same conclusion applies to cisgender girls.

    On the other hand, the dissent improperly discards relevant differences between transgender and cisgender girls, and summarily concludes that all applications of sex-segregated bathrooms permissibly further privacy interests. As Marty Lederman persuasively argues, sex-segregated bathrooms should be presumptively viewed as unlawful discrimination, with the burden placed on the government to justify the classification as being non-discriminatory. Lederman concludes, again persuasively, the government meets that burden as applied to cisgender girls, but not transgender girls because the harm only done to the latter outweighs the government’s privacy interests.

  11. School Districts: “Fuck it, we give up, all bathrooms and locker rooms are unisex.”

  12. There is no such thing as gender identity. It is a left wing construct designed to overthrow society with degenerate ideas.

  13. Of course, both the OP and the commenters fail to notice that the majority repeatedly and explicitly says they are not holding that sex-segregated bathrooms violate Title IX or the Equal Protection Clause. The issue is what happened with this one boy. This one boy, by the way, whom the State of Florida itself officially recognizes as a boy and whom the United States Government does (or would) as well. The school takes the sex listed on enrollment documents as determinative. They admitted at oral argument that if someone in the middle of transitioning enrolled with the sex listed (on their enrollment documents) as being the one to which they were transitioning, their bathroom policy would not apply to that student. So you’d have one transgender student using their preferred bathroom and another prohibited from using their preferred bathroom simply because of their enrollment documents. Students aren’t allowed to *change* those documents, even if they have been allowed to change their state driver’s license.

    This is a much less radical decision than people are making out. Read the fucking opinion before commenting, people.

Please to post comments

Trump Teases Executive Order On Pre-Existing Protections, I Suspect, To Help With ACA Litigation

The Cato Institute's amicus brief in California v. Texas proposed a very similar idea.

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On Friday, President Trump teased a new executive order on healthcare:

"That's a big thing. I've always been very strongly in favor. We have to cover pre-existing conditions so we will be pursuing a major executive order requiring health insurance companies to cover all pre-existing conditions for all of its customers. This has never been done before."

Of course, the media pounced and said the ACA–the law Trump is trying to destroy–already requires insurers to protect people with pre-existing protections. Specifically, the law's guaranteed issue and community rating provisions (GICR) bar insurers from denying coverage, or charging higher premiums, to people with pre-existing condition.

So what is Trump up to? I can offer some uninformed speculation.

Ilya Shapiro and I filed the Cato Institute's amicus brief in California v. Texas. We proposed that the Trump administration could require, by executive action, insurers on the ACA exchange to comply with guaranteed issue and community rating. But why would such an executive action be needed if the ACA is in place? Well, the ACA is currently being challenged. And perhaps one factor that could aid the Court's deliberations would be an assurance that people with pre-existing protections could still obtain coverage on the exchanges, even if guaranteed issue and community rating (GICR) were found to be inseverable.

Here is an excerpt from our brief.

The analysis for individual market, on-exchange policies is different. Hurley and Nantz are not eligible for subsidies. Declarations, supra. But they could still purchase an unsubsidized plan on the exchanges. Halting GICR with respect to policies sold on the exchanges would be an unnecessarily overbroad remedy. So long as the plaintiffs can purchase off-market non-compliant plans, or none at all, their injuries will be remedied. Plaintiffs cannot demand a greater remedy to alter all policies offered on government exchanges. Moreover, people who seek to buy a government-sponsored product on a government exchange cannot complain about cumbersome regulations. [FN 12] Courts need go no further than issue a declaration with respect to individual market, off-exchange policies. "[T]he judicial power is, fundamentally, the power to render judgments in individual cases." Murphy, 138 S. Ct. at 1485 (Thomas, J., concurring). No more, and no less. Hurley and Nantz, meanwhile, and all those who object to being forced to purchase unwanted policies, will have other options.

[FN12]: This narrow remedy would address concerns raised by the Federal Respondents about creating a "potentially unstable insurance market." See Brief for the Federal Respondents at 44–45. The executive branch could also require insurance providers on the exchanges to comply with the ACA's GICR provisions, regardless of the outcome of this litigation.

Let's see if the Trump executive order reflects the strategy in our brief. I have no inside information. But I wouldn't be surprised if the SG uses a similar strategy.

I will have much more to say about our amicus brief, as well as the Court's recent severability decisions (Seila Law and AAPC), as the arguments draw near.

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  1. Show me where in the constitution the president has the power to force insurance companies to cover pre-existing conditions in the absence of a congressionally passed law delegating that power. The president is not a king, and executive orders that apply to anyone other then the executive branch is unconstitutional.

    1. More interesting is the implicit, entirely-normal, unstated idea that courts base their decisions on outcomes first, legal rationalizations later.

      This same attitude has shown in quite a few articles here and elsewhere. Trying to second guess how the Supreme Court, or others, will make decisions, and what external non-legal factors will influence them, as if that were as normal as toothpaste. The outrage is not against such rationalizations, but against the wrong rationalizations.

      1. But that’s human nature. There’s a whole body of research that people’s opinions are determined by their confirmation bias and they then go looking for rationales to support the conclusions they’re already drawn. And no, judges aren’t supposed to do that but they’re human too.

        Which is why it’s fun to argue about politics and religion but only rarely does anyone change their core beliefs.

  2. So what is Trump up to? I can offer some uninformed speculation.

    Oh, good. That’s what we need.

    I, on the other hand, can offer some intelligent speculation: Trump knows that covering preexisting conditions is popular. Trump is very very very very very unpopular. Trump has nothing meaningful to offer the public in terms of policy. So he’ll just offer something that already exists so that he can claim to have delivered on it. Kind of the way he keeps claiming credit for Veteran’s Choice even though it was Obama who signed it into law a few years before Trump took office.

    1. Yeah; this isn’t rocket science.

      1. Most Trump fans are not rocket scientists.

        Like most successful peddlers of shoddy goods, Trump knows his target audience with exquisite precision — and disregards everyone else.

        Trump’s message is never aimed at a David Nieporent, a captcrisis, or a Sarcastr0. Trump aims lower, far lower, and often hits his downscale mark. He could not care less about how educated, reasoning, modern, accomplished people respond to his message, except perhaps to the extent he can lather his rubes by flattering their resentment toward credentialed, successful, skilled residents of educated, modern communities.

    2. Correct. It’s BS intended to gull the cultists, just like that wonderful plan he’s been promising to release any day now for the past 3-4 years.

  3. I dunno. If Trump can give this protection via Ex Order on a Friday, then I assume that if he manages to destroy the ACA, he can take away my/your protections via Ex Order # 2 the following Monday. Color me unimpressed. Color me terrified of losing any medical coverage.

    Josh, any speculations about why it took Trump only 3.5 years to do this?

  4. People who attend your TTT law school pay $35,000 a year to allow you to shit 10,000 words a week all over the floor of this establishment. Their employment prospects are iffy, but by god, you’ve got tenure and that’s what matters. Quantity over quality!

    You don’t engage on Twitter because people aren’t sufficiently deferential to your position as a professor at a law school so shitty it tried to steal another law school’s name and got sued.

    You don’t engage in comments here because you get even more omnipartisanly dunked on for your stupidity than Jim Lindgren, the guy who willingly signed up for Obama’s email list and was shocked to get an email asking him to sign an e-birthday card for Obama.

    Son, are you touched? Do you have any friends? Is there anyone who ever tells you, “Hey Josh, maybe just consider not saying anything about that?”

  5. “I will have much more to say about our amicus brief, as well as the Court’s recent severability decisions (Seila Law and AAPC), as the arguments draw near.”

    Thanks for warning us.

  6. Wow

    Josh Blackman has bought into trump as authoritarian leader totally

    An executive order is not law

    Judges should not consider either a possible executive order or even an actual executive order in deliberating a legal case

    Unless of course this is an authoritarian dictatorship

    Just wow

  7. When you see how far trumpistas have gone from their own principles and logic or reason, when they support wholeheartedly trumps fascist takeover of the gov’t and refusal to leave office, it will not be a surprise.
    How can they back out of this?

    They cannot
    And will take the republic with them to avoid having to face up to their own stupidity

    1. “And will take the republic with them to avoid having to face up to their own stupidity”

      No, they will not.

      Trump fans have, in general, never stuck with or accomplished much of anything worthwhile in life. They have been losers their entire lives, beaten by their betters in nearly every respect. These yahoos are not going to do much more than nip at the ankles of a strong, resilient, good America. Like its predecessors — the successive waves of intolerant, ignorant Americans who went after the Irish, Italians, Jews, Catholics, women, blacks, gays, Asians, Muslims, Hispanics and others — this latest batch of bigots is destined to lose.

  8. As usual, the blackman kid is cuckoo for cocoa puffs.

    The presidential debates are coming up. Biden will point out the scotus case, and when he does, trump can talk about his EO as evidence that he is very very powerfully and totally in support of coverage for pre-existing conditions.

    Any other motive that does involve trump’s re-election prospects would not interest him in the least.

  9. Good Grief

    Once again the ugly hypocrisy raises its head in this issue. Conservatives, or at least principled conservatives would react with horror that the executive branch could mandate the provisions of a contract between and insurer and the insured.

    But since this is something that the favorite son, Trump is doing instead of the hated son, Obama would be doing principles are out the door. Just don’t ask for our respect.

    1. Maybe this “executive order” is the last example David Bernstein needs to finally finish his book : “Lawless: The Trump Administration’s Unprecedented Assault on the Constitution and the Rule of Law”

      Ya gotta figure Professor Bernstein substance enough to fill up a book by now – and we all know how nonpartisan he is…..

      1. Prof. Bernstein’s twitter is hot on the case of explaining how the judiciary can’t do a moratorium on evictions; it’s gotta be the legislature.
        I think Trump just said he’s gonna do an eviction moratorium AND a payroll tax decrease via executive order.

        Must be saving that criticism for the book.

  10. Trump secretly supports Obamacare because the Kushner family is heavily invested in the ACA Exchange subsidies…sometimes Trump’s corruption helps Democrats. 😉

  11. I suspect the court will view this for what it is: a stunt.

  12. executive order requiring health insurance companies to cover all pre-existing conditions

    I’ll just go ahead and be the one to point out that if it’s for a pre-existing condition, it’s not insurance.

    “Hey, I wrecked my car yesterday, you should sell me insurance to cover the damages today.”

    But it’s not like anyone gives a fuck about language anymore, so, presumably I’m just screaming into the void again.

    1. Yet another problem to be solved by universal health care.

    2. And I’ll be the one to point out that if you develop a problem while you are insured, and your policy expires and can’t be renewed at a sensible rate, then it wasn’t insurance either, or at best it was a poor policy.

      This a core problem of health insurance, of course, and accounts for things like the mandate, community rating and so on.

      Trump’s blather isn’t going to solve it.

      1. And I’ll be the one to point out that if you develop a problem while you are insured, and your policy expires and can’t be renewed at a sensible rate, then it wasn’t insurance either, or at best it was a poor policy.

        That seems like a perfectly reasonable statement.

    3. We just call health insurance “health insurance”…similar to how we call bison “buffalo”. Really our health insurance system for ages 18-65 is funded by a VAT controlled by states and the employers most able to lobby their respective state governments. So Republicans that support the status quo support a VAT created by the UAW and New Deal Democrats…lol. 😉

  13. ACA opponents are trying to have their cake and eat it too, not willing to suffer the political consequences of their legal positions.

Please to post comments

Univ. of California Mandating Flu Shots for All Students, Faculty, and Staff

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I just got this e-mail; my sense is that this is pretty novel, though some other universities have adopted it recently as well.

To support the health and well-being of UC students, faculty and staff and our communities, the University of California, in consultation with UC Health leadership, has issued a systemwide executive order (PDF) requiring all members of the UC community to receive an influenza immunization before Nov. 1, 2020….

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  1. I agree – in my personal calculus, the benefits outweigh the costs to my individual liberty. I don’t mind the modest burden on others which will help to protect them and me.

    If someone objects, they could just find a new employer (recognizing that isn’t always easy).

    But I also agree that some of your readers will disagree.

    1. You don’t mind the modest burden on others. How gracious of you.

      Perhaps you ought to ask Coase for an alternative to coercion.

    2. Does it matter that this is state action (i.e. public university)?

      And then wouldn’t you have to negotiate this with all your unions?

    3. Thew Flu Vaccine is about 98%-99% ineffective. Bit don’t believe me, believe the science.

      “We found 52 clinical trials of over 80,000 adults..”

      “Authors’ conclusions:
      Healthy adults who receive inactivated parenteral influenza vaccine rather than no vaccine probably experience less influenza, from just over 2% to just under 1% (moderate-certainty evidence). They also probably experience less ILI following vaccination, but the degree of benefit when expressed in absolute terms varied across different settings. Variation in protection against ILI may be due in part to inconsistent symptom classification. Certainty of evidence for the small reductions in hospitalisations and time off work is low. Protection against influenza and ILI in mothers and newborns was smaller than the effects seen in other populations considered in this review.”

      https://www.cochrane.org/CD001269/ARI_vaccines-prevent-influenza-healthy-adults

  2. The flu vaccine is about 30% effective, the leading cause of vaccine deaths, and often gives you the symptoms its supposed to suppress.

    The only people who support these mandates are either utterly ignorant, religious-like believers in vain dogma, and Big Flu & Pharna who profits handsomely from these sorts of mandates.

    1. So which is it? Is Eugene (1) utterly ignorant, (2) a religious-like believer in vain dogma, or (3) Big Flu and Pharma?

      1. @Leo Marvin: why only those 3 possibilities that you have enumerated, might not EV be all of them and then still more? Could he, for instance, be one of those that General Jack Ripper feared were trying to poison our bodily fluids? I expect that Sam Gompers (named after the great labor leader?) can conjure up possibilities that neither you, nor I with our so-limited imaginations can begin to contemplate.

        1. I happen to believe Eugene is Cthulhu, but my views aren’t relevant to this discussion. I was merely trying to get Sam to clarify his own.

        2. I’m not convinced that Ripper was wrong.

          1. Let me clarify — he was wrong in what he *did*, but not his general concerns. Back then they were nonchalantly using stuff like Carbon Tet that were not good for people. And today a lot of our drinking water has female hormones in it. Low levels, yes, but what are the long-term consequences?

            1. What Arnold told us.
              “Girly men.”

    2. I actually agree — and the medical nazis have long sought to mandate this.

    3. “the leading cause of vaccine deaths, and often gives you the symptoms its supposed to suppress.”

      You’re full of shit.

      1. There is a government report on vaccine victims published monthly.

        Feel free to refute me with facts instead of emotions. I know in this day and age feels > facts, but try just this once to use your human brain and not your monkey one.

        https://www.hrsa.gov/vaccine-compensation/data/index.html

        1. The flu vaccine has 188 deaths from 1,672,400,000 doses since 2006 (7 times as many doses as the second most common vaccine in America).
          The leader in deaths according to the source would be DTP with 696.

          It’s weird: This is the second time in the past week where I read a comment where somebody cited a source that directly contradicted their claim.

          1. That version DTP is no longer administered after they figured out it was mass murdering children.

            What’s weird is how many people talk like authorities on this subject but, as it turns out, know so little.

            FYI, a “dose” isn’t the same thing as a shot.

            1. What’s weird is how many people talk like authorities on this subject but, as it turns out, know so little.

              FYI, a “dose” isn’t the same thing as a shot.

              OK, so I have no idea what your bona fides are, but in my years of working in the medical field, all the flu shots I gave were single doses. So were the DTP shots and boosters.

              I have absolutely no idea what you are actually trying to say with that last line.

              1. Vaxx propagandists and Big Pharma defenders typically trot the dosages stat instead of other metrics, such as per unsuspecting vaxx victim, or per dead vaxxed child because they know that most people don’t realizing how many doses of vaccines people tend to get, they often conflate doses with shots.

                Propagandists exploit this to dramatically increase the denominator.

                1. Since we’re talking about death rates, the number of deaths from diptheria in 1921 (just before the vaccine came out) was 15520. That was when the population was 108 million or so, so that would be equivalent to 45k odd deaths today.

                  So, the DTP vaccine doesn’t seem to be quite as effective at ‘mass murdering’ children as, say, diptheria itself.

                  1. Do the same math for school shootings vs. vaxx deaths from DTP vaccine and equally dismiss the moral panic and demands to oppress rights.

                    1. Is there a vaccine for school shootings?

                2. That… didn’t really clear anything up.

    4. Still waiting for you to tell us whether Eugene is (1) utterly ignorant, (2) a religious-like believer in vain dogma, or (3) Big Flu and Pharma.

  3. “Stuff with no side effects generally has no effect at all.”. MD around a bicycling tour campfire many years ago.

    With whom lies the liability for deleterious side effects?

    It was 30 years from my first Influenza vaccination to my next as I watched the complications wax and wane. Now, septuagenarian, I don’t plan on CoViD vaccination for a few years, as I watch the complications wax and wane.

    1. The taxpayers pick up the tab for vaxx victims. The people in government have made Big Pharma immune from any harm they caused. Over $4 billion with a B has been paid out to vaxx victims since the 80s, they even have a extra-legal court system that never assigns fault but still awards damages to vaxx victims.

      1. How much money have governments in the US saved since the 80s in the form of reduced Medicare and Medicaid expenses because the flu vaccine prevented many people from getting the flu?

        Going beyond the government medical program savings, how much has productivity in industry and government been increased by billions of productive workdays since the 80s that were not lost to the flu because the vaccine was widely available?

        How much in private health care costs have been saved because the flu vaccine prevented many people from getting the flu?

        I’m betting that four billion dollars pales in comparison to the above tangible savings.

        And imagine the less tangible, but real, value of billions of person-days of happiness (few are happy when the get the flu even if they never need medical treatment or even miss any work because either they don’t work, can work from home, or go into work anyway).

        Without the liability waiver, either the flu vaccine would not be available or would cost more because the manufacturers would have to insure against liability and that cost, of course, would be added (with overhead) to the cost of a dose.

  4. Was the use of the word “novel” as a reference to COVID-19 intentional? Kudos if it was.

    1. That is the official name of the virus. 2019 Novel Coronavirus.

      1. I know the name of the virus. I was referring to Prof. Volokh’s statement “I just got this e-mail; my sense is that this is pretty novel…”

        1. I caught it. (The joke, not the virus.) I also thought it was pretty funny.

          1. Totally unintentional, I regret to say.

      2. The name of the virus is SARS-Cov-2.
        The illness is covid-19
        Get it right.

  5. I suspect at least part of this to test whether they can do the same for the Covid vaccine soon to be developed.

  6. I avoid the flu shots because, AIUI, they vary every years, some years are more effective than others, and the side effects vary from year to year. It all tells me that it has nowhere near the track record of measles, mumps, tetanus, and all the other proven vaccines.

    I assume any COVID vaccine will be similarly shaky for starters at least, and maybe, if it settles down and collects a reasonably stable track record, and COVID is still hovering over everybody, may take it.

  7. I get flu shots, but I often put off getting one due to my tendency to procrastinate. This year, I’m getting one promptly. Flu symptoms overlap Covid symptoms. I don’t want to have flu symptoms and worry about having exposed people to Covid. Even when it turns out I haven’t, there are young adults I interact with who would lose income and so on if they need to isolate for Covid. I don’t want to put them in the position of needing to worry.

  8. LIBERTARIANS, will some among you, hopefully, the more thoughtful, explain libertarian thinking on public health crises like the current pandemic one and what burdens can be placed on individuals in the service of the common good. Among those refusing to wear face masks are principled, non-crazy libertarians? How about those who protest quarantine orders, like the militia types who showed up outside the state house in MI brandishing their AR-15s, those include reasonable libertarians among them? How about Rand Paul, an embarrassment to the medical profession and Duke’s medical school, telling Fauci he should back-off with his public health policies and look to Hayek for guidance as the US death toll climbs higher and higher.

    Ok, I have asked these questions in a somewhat tendentious way, but I really would appreciate an exposition of the non-fringe libertarian thinking in the face of the current pandemic.

    [Do the anti-vaxxers fold comfortably into the libertarian crowd, or are they their own brand of crazies?]

    If anyone can provide links to intelligent writing on this subject, please do so. Thanks.

    1. From the tone of your question I doubt if you are sincerely looking for the libertarian position on this, but you can find some thoughtful pieces on Cato’s website, e.g https://www.cato.org/publications/commentary/vaccination-free-will

  9. “The flu vaccine is about 30% effective, the leading cause of vaccine deaths, and often gives you the symptoms its supposed to suppress.” Any evidence from credible sources to cite in support of your claims? The protection afforded by seasonal flu vaccines does vary from year to year because the flu virus mutates easily and the vaccines are produced based on the best guesses as to which viruses will prove the predominant ones in the coming seasons. In what year were they ever only 30% effective? (Do cite your source.)

    If it is true that flu vaccine is “the leading cause of vaccine deaths,” what are the second, third, and fourth leading causes, and how was causation established? Vaccines with very few and infrequent exceptions (the Cutter polio vaccine disaster) have proven remarkably effective and beneficial, making relatively rare some of mankind’s greatest scourges. The anti-vaxxers do not come from the ranks of our scientific elite, and often number among the self-evidently kooky. The children of pediatricians, infectious disease specialists, public health experts, military members, etc. are usually up-to-date on vaccinations generally.

    “The taxpayers pick up the tab for vaxx victims.” Not true, or partially true at best. The awards to those who present more-likely-then-not (less than scientific standards of proof) evidence of vaccine-RELATED injuries are paid their awards out of the excise taxes levied on the vaccines themselves, and those paid for by those paying for the immunizations with these vaccines.

    “The people in government” FYI, they’re called Congress Members + POTUS and courts

    ” have made Big Pharma immune from any harm they caused.” Back in ’76, when the fear was the Swine Flu would kill great numbers of us, the government had no choice but to indemnify manufacturers for any legal liability, or they would not have agreed to manufacture the vaccine.

    “Over $4 billion with a B has been paid out to vaxx victims since the 80s,” a misleading figure, and you have clearly been mislead, but I won’t waste further time explaining to you, since clearly you are and wish to remain ignorant. (Sorry, but my patience for this nonsense is limited after many years of it.)

    “they even have a extra-legal court system” What is “extra-legal” (whatever that is supposed to mean) about a system established by an Act of Congress signed off on by POTUS and upheld by various federal and state courts, including the US Supreme Court (see Whitecotton) and run by the US Court of Claims.

    “that never assigns fault but still awards damages to vaxx victims.”
    Yes, it is a no-fault system because Congress wanted it to be an easier route to recovery for claimants than what they would be up against if they had to sue manufacturers.

    Stay well, and if you don’t stay well, please try not to infect others.

    1. Performance of the United States Vaccine Injury Compensation Program
      … shows that those receiving vaccinations (mandatory or otherwise) pay for the vaccine, including the excise tax levied on each vaccine. So the taxpayers do indeed pay for this, and similar to the FDIC, the compensation is backed by the US government.

      I’m not doing more homework for you) but for 1988-2019 report shows Influenza vaccine with the highest injury and death rates (5,592 and 176) amounting to 67% of all claims among all other vaccines. Influenza vaccine is by any measure the leading cause of vaccine injury and death.

      You ask ‘how was causation established’? Refer to your own reply about “… an Act of Congress signed off on by POTUS and upheld by various federal and state courts, including the US Supreme Court (see Whitecotton) and run by the US Court of Claims.

      $4 billion is short of the amounts paid into the fund, but with interest and payments, equity in 2018 was about $4.0 billion. Payments look closer to $0.4 billion but the data’s incomplete.

      1. So if I understand correctly you’re saying 176 people have died from the flu vaccine in 30 years. That’s a pretty good track record.

        And using claims as a basis for determining success is like saying twitter represents the views of the majority of the population.

        1. @ThanksForTheFish

          I wonder if that’s more or less than the number of deaths from school shootings over the same time period.

          I’m quite sure that the child vaxx deaths from the DTP vaccine standing at 696 is significantly greater than the number of deaths from school shootings over the same time period it was being administered.

          1. I wonder if that’s more or less than the number of deaths from school shootings over the same time period.

            Far less, even though school shootings are much less common than people think.

    2. https://www.cdc.gov/flu/vaccines-work/effectiveness-studies.htm

      29% is what the CDC says for 2018-2019.

      Why are so many pro-vaxxers so ignorant of the facts yet so militant about their beliefs?

      It’s bizarre.

    3. Neuro,
      People in government also include many bureaucratsboth Senate confirmed and not.

  10. More anti-vaxxers than a Green Party convention in here.

    1. Stroking with a broad brush again, Sarc. Being anti-vaxx is one thing. Questioning the value of a vaccine that is completely incapable of creating herd immunity and some seasons is barely effective at all is something quite different.

      Let the adults have their conversations, mk? Stop trying to dismiss reasonable arguments by lumping them in with extremists who share some of the same views.

      1. These people lose all skepticism when it comes to their religious-like, fact-free, beliefs.

        Even the most serious people suffer from this.

        1. Sam, you’re not really speaking from a fact-based foundation. When people point out how small the death numbers are, you just pivot to yelling about child genocide and cover-ups.

          Glass houses and all that.

      2. I was more making a joke.

        I wouldn’t call Prof. Volokh’s cost-benefit anti-vaxxer, which is what you’re speaking about.
        I tend to think it’s worthwhile, especially this year, but I don’t mind interrogating the policy question

        But don’t pretend that’s the conversation going on in these comments. These comments are largely people pounding on the table and invoking cover-ups and hidden science anti-vaxxers, and a few bemused people trying to engage with them.

  11. I disagree. I’ve never had any problem with vaccines, but I reserve the right to have a problem with vaccines.

    I may disagree with your decision not to take vaccines, but I will defend your right to do so.

    I don’t necessarily disagree with a school requirement, at least if schools were less monopolized by the government. For flu it seems unjustified. It would be vastly preferable to try allowing an opt-out for objectors. But I’m against a government mandate.

    It strikes me as very antithetical to liberty for the government to forcibly inject their lab grown substances into your bloodstream. Without due process that is, of course.

  12. OK I ‘know’ that the flu shot isn’t supposed to be able to give you the flu. I have read all the research that says it contains no live or even weakened flu virus (maybe the ones 30-40 years ago did though.) I’ve talked to friends who are medical professionals I trust who say it is not possible to get the flu from the flu vaccine. OK, all that said…

    Every time I get the flu vaccine I get something JUST LIKE the flu. It puts me down for 2-4 days. I have symptoms like the flu. Even once did a rapid flu test and it came back positive. I tell the doctor I came down with the symptoms with 48 hours of getting the shot and they tell me I was just unlucky and picked up the flu in that timeframe or that I was having a bad reaction to the vaccine.

    I know plenty of other people who have the same experience. And logically this doesn’t make sense. I suspect someone is playing fast and loose with some of the data because if people thought there was a small chance they could get flu like illness from the flu shot, compliance rates would drop to a fraction of the amount that get it on a annual basis. Hence probably the disinformation to some extent.

    1. That can happen. For many diseases, the symptoms are the side effects of the battle between the pathogen and the immune system (cytokine storm, the signature cause of death in COVID, is an extreme example). Since vaccines generally work by causing the immune system to react as if it were seeing the actual pathogen, it’s no surprise that you would see the same symptoms. A microscopic version of live-fire training injuries, so to speak.

      That said, in the case of non-live vaccines like flu shots, there are two limits in play. First, the quantity of simulated pathogen is limited, as it does not reproduce. Second, it will not generate a case that you can then pass on to another person. But for some people, even those limits allow enough room to make one feel pretty bad.

    2. Anecdote → conspiracy theory is the best science.

      1. That seems a little disingenuous to the OP. His story seems more like… “People representing science made a statement of fact that does not coincide with my experience. Ergo, that statement, by definition, must be incorrect to at least some degree.” That is not conspiracy, that is logical and correct. The response from those proclaiming science should then to be to restate what they said more accurately if their general point is still true or to clarify a misunderstanding… in this case it would be “Having symptoms as a byproduct of the body learning to fight the pathogen is like having the flu, but is not the same as having the flu.” That clarification allows the the personal experience to be true (as it must be given that it did happen) while also explaining why that experience is not necessarily contradictory to the science. This engenders more trust in science. But the often used bomb of “You look! You science denier!” does nothing to increase trust in science as it still lets the starting scenario to stand… that a statement of presumed fact by the “scientist” is refuted by an actual experience (and this is a reasonable position for someone to hold given what they currently know… giving more knowledge rather than invective is what allows for a worldview in which the experience can be seen in a different light that allows both it and the science to co-exist).

        1. You look should read “You kook!”

  13. my sense is that this is pretty novel

    As an employee of the University of New Mexico Health Sciences Center (the medical school) I was “required” (they didn’t do much actual enforcement, though I went and got it because I was going to anyway and this way it was free) to get a flu shot in 2015, ’16, and ’17.

    So, that’s just one data point, but indicates less novelty.

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Free Speech

Alleged Rapist's Wife Gets Anti-Stalking Order Against Husband of Alleged Victim

The Vermont Supreme Court reversed the order (which had required defendant to stay 300 feet away from the plaintiff).

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From today's Vermont Supreme Court majority opinion in Hinkson v. Stevens, written by Justice Beth Robinson and joined by Justices Harold Eaton and Marilyn Skoglund (retired):

Plaintiff [C. Paige Hinkson] lives in Stowe, Vermont with her husband C.D. and their teenage daughter. Plaintiff and C.D. co-founded a business, Transegy, LLC, that provides leadership development and executive coaching. Plaintiff's office is in her home, and her personal cell phone number is listed as the contact number for the business. C.D. previously worked at a company called Inntopia.

Defendant [Stuart Stevens] lives in Stowe, Vermont. He is a writer, political strategist and media consultant who has a "reputation as an aggressive operator in his professional pursuits." He is in a romantic relationship with L.S., who also lives in Stowe and has a teenage son who attends high school in the same class as plaintiff's daughter.

In February 2017, plaintiff's husband C.D. had a sexual encounter with defendant's romantic partner L.S., who had been exploring potential employment opportunities with Inntopia. Whether this was a consensual encounter or an act of sexual assault is in dispute. Shortly after the incident, L.S. reported to defendant that C.D. sexually assaulted her. Defendant testified that it was "extraordinarily difficult" for him to see the pain L.S. was in. He saw a therapist to help him understand the experiences of victims of sexual violence and read many books addressing the subject. L.S. filed a sexual-harassment lawsuit against C.D. and Inntopia, which settled in May 2017. As part of the settlement, L.S. signed a nondisclosure agreement. Plaintiff was unaware of L.S.'s allegations and her husband's infidelity until the lawsuit settled.

In April, before the settlement, plaintiff began receiving numerous calls from a number with no caller ID; the caller hung up if she answered the phone. She installed a program on her cell phone that can "unmask" telephone calls. The evidence at trial showed that between April 2017 and March 2018, defendant called her cell phone twenty-six times from a masked number. Defendant also called C.D.'s cell phone repeatedly during this period. In total, he called or texted plaintiff's and C.D.'s cell phones a total of 151 times. Many of the phone calls took place in the evening, including calls after ten or eleven p.m….

In June 2017, defendant sent three shipments of books, addressed to C.D., to plaintiff and C.D.'s home address. The first shipment contained a book defendant had written about his father called The Last Season; Missoula: Rape and the Justice System in a College Town by Jon Krakauer; and I Never Called It Rape by Robin Warshaw. The second shipment contained Rape is Rape: How Denial, Distortion, and Victim Blaming Are Fueling a Hidden Acquaintance Rape Crisis by Jody Raphael and a note that read "Hi [C.D.], Enjoy your gift! From [defendant]." The third shipment contained Asking For It: The Alarming Rise of Rape Culture – and What We Can Do About It by Kate Harding.

Plaintiff opened the packages and was disturbed and upset to receive books on the topic of rape and with the word prominently displayed on the covers….

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  1. 151 calls? If that’s not stalking, what is? I’d be spooked after the first few, and I can’t imagine 151 hang-up phone calls, including late at night.

    Wonder how those judges would feel, getting 151 hang-up phone calls. bet they’d be calling the police within 5 or 10.

    1. I’d actually call the half dozen people who might actually need me at that hour of the night, and then turn the damn phone OFF.

      1. Or go across the river into New Hampshire at which point this has now become a Federal offense (47 USC 223).

        I’d love to know the legality of the “unmasking” program as well, not to mention what the caller’s cell provider had to say about all those calls being made.

    2. Note that this was 151 times over a period of about a year. I’m doubtful that many people (or even judges) would call the police if they got 5 unwanted phone calls in a couple of weeks.

  2. Is it too much to ask the court to just go with Alpha, Bravo, Charlie, David, Echo, Foxtrot — I got lost in all the initials…..

    Although, when people start sleeping with each other, things will inherently get messy. That’s not the Puritan in me saying that, it’s the student affairs administrator saying it. I’ve seen it happen too often….

  3. Defendant’s repeated “masked” phone calls, made late in the evening or at night, and within the context of defendant’s other conduct, can reasonably be considered as “monitoring” according to the plain language of the statute. As the majority notes, “monitor” may be defined as “watch[ing], keep[ing] track of, or check[ing] … for [a] special purpose.” Defendant’s actions fit within these definitions.

    No they don’t. Not even slightly.

    Another two judges in the long line of examples of folk who should never have been allowed near the bench.

  4. That sure sounds like stalking to me.

    Not that restraining orders are anything more than a piece of paper for all they’ll defend you against an attacker.

    Plaintiff should take a firearms safety course, a firearms use course, and get her CCW.

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