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Two noteworthy tweets

Two noteworthy tweets

It’s a slow economic news week. Housing starts and permits are reported tomorrow, and jobless claims and existing home sales on Thursday. I’ll update the Coronavirus Dashboard Wednesday.  So for today, two nuggets.

1. Nate Silver discovers behavioral psychology:

This has been my paradigm for months. Panic breeds compliance with mask-wearing and social distancing. Complacency breeds risk-taking. Over time both trends wane, breeding the conditions necessary for the opposite outcome. Not only has this been true in almost all US States, but we have now seen the same dynamic play out in Europe.

Nice to see that Nate Silver is learning about learning.
2. What is the solution to the Supreme Court?

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The Post Office in a Decent Society

Mark Jamison’s commentary on USPO matters have been featured at Angry Bear Blog a number of times. A retired postmaster, Mark Jamison serves as an advisor, resident guru, and a regular contributor to Save the Post Office. Mark’s previous posts concerning the USPO can be found here at “Save The Post Office” or by doing the search function at Angry Bear. Mark can also be contacted on USPO matters markijamison01@gmail.com

In looking at the results of the recent lawsuits against the Postal Service — eight of which have led to rulings banning changes in postal operations until after the election — it is tempting to make a bad sports analogy.  After all, going 0 for 8 in the courts lends itself to comparisons with the futility we often associate with the worst teams and players. But to do so trivializes matters of the gravest civic importance.

The lawsuits have been initiated to preserve our right to vote and do so in a way that preserves our health and safety during a pandemic. They have also served to highlight the politicization of a national asset and institution, one whose mission embodies the concept of one nation through the provision of universal service.

The Postal Service has repeatedly lost in court because there is no argument that can defend the clownish tenure of Louis DeJoy and the overt politicization of an infrastructure that should be totally nonpolitical by Robert Duncan and the other members of the Postal Board of Governors.

Duncan continues to serve as a director of a super PAC dedicated to electing Republican candidates to the Senate. Whatever insights or advantages Duncan’s experience might bring to the operations of the Postal Service, they are more than offset by his utter lack of respect for the institution. His continued partisan position during a contentious election in which the Postal Service is playing an essential role is inexcusable. A person with any sense of civic duty or public propriety would have stepped aside long ago.

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Tic Tac Toe, Supreme Court style

(This was first posted February 21, 2008.)

Bribes, payola, favor of the physical kind? Forget-about it. Just put the right person in the appropriate agency, preferably a person from the line of business the agency is to regulate. But, for extra insurance over the long haul, with a little luck of timing you get to fix the legal issue almost permanently: supreme court justices.

Justices Make it Tougher to Sue Makers of Medical Devices

The case has significant implications for the $75 billion-a-year health care technology industry, whose products range from heart valves to toothbrushes. In a recent three-month span, federal regulators responded to over 100 safety problems regarding medical devices.

At issue before the Supreme Court was whether the estate of Charles Riegel could sue a company under state law over a device previously cleared for sale by federal regulators. State lawsuits are barred to the extent they would impose requirements that are different from federal requirements, said the ruling by Justice Antonin Scalia.

In dissent, Justice Ruth Bader Ginsburg said that Congress never intended “a radical curtailment of state common-law lawsuits seeking compensation for injuries caused by defectively designed or labeled medical devices.”

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Redux et Redux

Slavery, never gone, had been given new life in Europe with slaves from Africa; first by Portuguese Traders in the 15th Century, then by the Spanish in the 16th. The bubonic plague of the 14th Century had wiped out one-third of Europe’s population; Europe needed laborers. Slavery was widely practiced on the continent and in the colonies until the 19th Century. Sharecropping, but another form of Western European feudalism dug up after having been buried for some 400 years, was brought over and resurrected in the postbellum south. It all seems somehow lacking in imagination, doesn’t it? More greedy-grubby than creative. Even the Peonage of the postbellum south was borrowed from the Spanish who borrowed it from Eastern Europe. Though outlawed in 1867, Peonage is still practiced in the American south today.

The rationalization for these heinous acts? Something along the lines that it was OK to enslave or indenture someone as long that someone was somehow different from yourself. After all, god made us in his image and they were different from us so that made them different from god, too. Lo god! Could we get your thoughts on multiracial share-cropping?

They’re doing it again. That’s they’re, as in it’s the same 17th Century mindset cast of characters; instead of fading away with progress, they’ve grown with regression. And, it as in feudalism as in enslavement, indenturing. This time, they are not calling themselves Lords, or Planters/plantation owners; at least not in public. This time they don’t manor. don’t plant, don’t own the plants; … don’t hire the workers. Don’t really do anything. They do have almost all of the wealth. They do employ (endow) syphilitic sycophant* fronts groups such as Conservatives, Libertarians, and The Federalists Society. They are the very We of Entitle. After all, more than four centuries have passed. It was time to change something; even if it was only names and titles. It is still much the same menu. They not only didn’t move forward with the times; they have managed to take the Nation backward in time.

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Day 2: Senator Sheldon Whitehouse (RI) Asks Questions of Justice Amy Barrett

Yes, yes, I know Judge Amy Barrett has not been confirmed to be a Justice and serve on SCOTUS yet. I believe it to be a slam dunk for her to be confirmed by Senators without morals or a conscience.

There are times I believe we should have non attorneys in the Senate and then this occurs where an attorney is friendly or at least on target with the issues. Senator Whitehouse expands on what he described yesterday using Abood as an example, how Alito signaled the gang of five conservative Justices were ready to overturn it, and reveals the methodology to over turn it.

Abood v. Detroit Board of Education is dead as a Supreme Court precedent. The 1977 decision had allowed public-employee unions to compel workers to pay the unions “agency fees” for representing them in collective bargaining.

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The SCOTUS hearings

Democrats so far have focused on the risk that Amy Coney Barrett poses to the Affordable Care Act.  This is completely understandable as electioneering.  The ACA was one of their best issues in 2018, and it will be again this year.  But . . .

By focusing narrowly on the ACA, the Democrats are missing an opportunity to educate the public more broadly on the role of the Court and the danger posed by a highly conservative and partisan set of Justices.  The Court is a threat to all of the Democrats top legislative priorities and to voting and election reform.  In addition, the ACA challenge the Justices will hear in November is probably not going to succeed, in part because it is extraordinarily weak, and in part because preserving the ACA will defuse any momentum for a political challenge to the conservative majority on the Court, and the Justices know this.

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USPS Update on Court Cases

Steve Hutkins at Save the Post Office

Another federal court has ruled against the Postal Service. The United States Postal Service is now 0 for 6.

In the case of Richardson v Trump, Judge Emmet Sullivan has ordered a preliminary injunction putting limits on postal operations in the run-up to the election. (Sullivan had also issued a preliminary injunction in Vote Forward v DeJoy.) 

In his Opinion Sullivan writes,

“The Court shall grant Plaintiffs’ request to ‘restore overtime pay’ and to ‘make all late mail deliveries instead of letting mail be delayed or go undelivered.’”

Sullivan stopped short of ordering the Postal Service to returning operations to the status quo as of January 1, which would have meant restoring the 700 sorting machines that have been removed. Sullivan also rejected the plaintiffs’ request that the Court appoint a “special master” to supervise implementation of the Court’s Order.

Late yesterday Judge Victor Marrero issued an order in Jones concerning the Guidance Memorandum the parties have been trying to agree on. The order says,

“The Court is persuaded that the appropriate course is to adopt, in substantial part, the Government’s latest proposal.”

This proposed version of the Memorandum is here.  There are still two areas that need to get worked out. Both involve the wording on extra delivery and collection trips.

Update: The parties in Jones have finally worked out the wording for the Supplemental Guidance Document. You can see it here.

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Voting in a Time of Covid: A Question about Judicial “Originalism”

Voting in a Time of Covid: A Question about Judicial “Originalism”

The originalist theory of legal interpretation holds that judges, in reviewing the implementation of a statute, should be guided by the “plain meaning” of its language at the time it was adopted.  This is in opposition to the notion of a “living law”, whose interpretation should evolve as the conditions it addresses evolves.  For instance, originalists are appalled by Supreme Court decisions like Roe v Wade, since nowhere does the Constitution establish a right to bodily privacy, nor could the framers have plausibly thought back in the eighteenth century that the language they drafted encompassed such a right.  It is one interpretation of the living law view, on the other hand, that, as governments increasing acquired the administrative power to regulate our intimate lives, the zone of restriction implicit in the first amendment should be extended to measures that impinge on the freedom to control one’s own body.

Until his death the most vocal supporter of originalism on the Court was Antonin Scalia; now we are looking at the nomination of Amy Coney Barrett, who describes herself as an acolyte of Scalia and a resolute defender of his philosophy.

Here is a case I would bring up if I were questioning Barrett.

The rules governing elections are established at the local and state levels, not federal, but the Supreme Court is the final arbiter of how they might be interpreted.  It is common for jurisdictions to have regulations prohibiting interference with or attempts to influence voters at voting sites.  In every instance I’ve seen this is expressed in terms of physical distance, something like “within 100 yards of the polling place”.  In enforcement this has always implied a radius extending from the door voters use to enter the building in which they will cast their vote.  You can’t hold signs and shout at voters, much less accost them, within so many feet of that door.

 

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Just Stirring the Pot – Updated

Regeneron Seeks Emergency Approval per trump’s miracle recovery and subsequent endorsement.

Biotech company Regeneron moved Wednesday to apply for emergency approval for an experimental antibody treatment praised by President Trump.

“Subsequent to our discussions with regulatory authorities, we have submitted a request to the U.S. Food and Drug Administration for an Emergency Use Authorization (EUA) for our REGN-COV2 investigational antibody combination for COVID-19.”

And trump? President Donald Trump received the antibody cocktail last Friday along with other drugs under a compassionate use program after becoming sick(?) with the coronavirus. Trump hailed Regeneron’s treatment in a video posted on Twitter Wednesday, saying he would authorize its emergency use and make it available to Americans for free.

Who knew this was a clinical trial of the real drug? What if it was a placebo and he cured himself? If they approve this after all the hoopla over other drugs    .   .   .

Just more deflection from the real issues, the pandemic, himself, etc.

Maybe, we should just follow the money???

A Warning From Michigan

A 4–3 party-line vote and Republican judges on the Michigan Supreme Court invalidated a law that had empowered a historically popular Democratic chief executive to take emergency actions to combat COVID-19. The basis for the decision was an antiquated doctrine that conservatives on the United States Supreme Court have signaled they want to revive.

The Michigan Supreme Court was following the lead of the U.S. Supreme Court. In an opinion last year, Justice Neil Gorsuch wrote a dissent calling for the revival of the nondelegation doctrine. Gorsuch premised his argument on the originalist claim the Framers believed “such delegation of power, in the case emergency powers, would frustrate ‘the system of government ordained by the Constitution’ if Congress could merely announce vague aspirations and then assign others the responsibility of adopting legislation to realize its goals.”

Legislatures aren’t equipped to resolve every question for themselves. Nor are they nimble enough to confront every new challenge as it arises. Sometimes, they need to draw on the executive branch’s expertise and dispatch. And in this case, the Michigan legislature through Gerrymandering has had control of the legislature since 1990. They have the ability to overrule the governor.

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New Healthcare Executive Order

Administration Health Care Executive Order, Health Affairs Blog, Katie Keith, September 2020

Trump believes he took action on Healthcare with an Executive Order protecting people with pre-existing conditions and also by eliminating surprise billing. He did not. 

On September 24, 2020, D.J. Trump issued a health care executive order (EO) focusing on protecting people with preexisting conditions and eliminating surprise medical bills. The Executive Order itself will have little or no immediate effect on healthcare law. Instead of laying out a specific plan or action(s) to take, the EO is detailing the administration’s health policy priorities and general agency directives (such as “giving Americans more choice in healthcare”). The EO’s approach is consistent with the seven-item bulleted list released by the campaign in late August and reiterates the hopes of the constituency for affordable healthcare  minus the detail.

The “release” of this Executive Order and its purpose is to distract and redirect attention away from the nomination of Amy Barrett to SCOTUS and blunting the criticism of President Trump for:

1) moving forward with his nomination so close to the death of Justice Ruth Bader Ginsburg ignoring the precedent established by McConnell on nominations close to an election; and trump’s
2) promising and not delivering a health care plan way ahead of the 2020 election.

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