Annals of policy change: from legislation to regulation

The New Neo Posted on by

Remember back when the main mechanism for significantly changing federal government policy on something was Congressional legislation? And remember when transformative legislation was felt to need significant bipartisan support?

The good old days, as far as I’m concerned.

Back then, not only was the filibuster firmly in place, but neither party wanted to pass transformative legislation on a very narrow vote. The idea was that if the American people didn’t firmly support a policy change, they would vote them out next session. Also, it kept policy from oscillating/careening wildly out of control.

That era ended with the passage of Obamacare, the first transformative legislation passed with very narrow support, and partisan support at that. But Democrats apparently judged that process to have been too difficult, too chancy, and too close. Executive orders were better, because they only required one person to agree: the president.

So EOs became more a more useful way to do things during the Obama administration. I’m not just talking about the number of such orders any president might issue, because the numbers aren’t really important if they involve minor matters. It’s their nature that counts, and there is a pattern of escalation in regard to their scope and effect.

But as simple as most executive orders are to execute, they are just that simple to un-execute – or to re-execute, in the case of Joe Biden repeating some of the most wretchedly transformative EOs of the Obama years and escalating even further (that’s progress, folks). As we watched President Trump undo Obama’s, and cheered; so do we now watch Biden bring them back to life, and groan.

The increasing use of EOs to institute changes that do not have bipartisan support and that could not have been passed through legislation has another effect: it makes the country’s policies unstable. We’re getting whiplash as a result.

What’s more – although this is not about EOs – because the two parties are so at odds over foreign policy, there is also a whiplash effect in that regard. How can other countries rely on anything the US to last any more than four years these days?

Of course, if the Democrats manage to enact the sorts of changes that will make their dominance of American politics permanent or near-permanent, at least we won’t be getting a whiplash effect anymore. We’ll look back to these whiplash days with nostalgia.

Update on Officer Sicknick’s death

The New Neo Posted on by

As I pointed out in this recent post, the cause of death of Capitol Police Officer Brian Sicknick remains unclear. And yet article after article states – without attribution – that rioters inflicted injuries on him that caused his death. Usually such articles also add that he was beaten in the head with a fire extinguisher.

Where do such reports come from?:

[The Capitol Police press statement] can be found here. The way it’s written you simply cannot tell what happened, except that some injury to the officer seems to have occurred while the riot was ongoing and he was engaging with protestors. It doesn’t say his injury was sustained at anyone’s hands, it does not say what the injury was, it does not say how long it was between the injury and his death, it does not say why his injury did not cause him to go to the hospital and why he just went back to his division office, and it does not mention a fire extinguisher. It also does not say on what basis the Capitol Police concluded he died of that injury or injuries, as opposed to some other cause such as a heart attack…

It is certainly possible we will some day learn that he was indeed hit by a fire extinguisher or some other object at the hands of rioters, that such rioters were on the right rather than Antifa agitators, and that he died as a result of those blows. But none of that is in evidence now. And yet if you were to poll most people who know about Sicknick’s death at all, I bet the vast majority of them think that all of that has been proven already and that right-wing Capitol insurrectionists killed Sicknick by beating him with a fire extinguisher.

Now I’d like to add that the earliest reports in the MSM actually said Sicknick had a stroke. For example, this is the most complete article I’ve found on the subject so far. It’s from January 12 (and from KHOU, which appears to be a CBS-affiliated Houston station, therefore part of the MSM). I haven’t seen anything more recent that clarifies any of this. Meanwhile, the fire extinguisher story and the “beaten by rioters” stories are still everywhere and have become enshrined as truth.

The original source of the fire extinguisher story appears to have been two unnamed officers speaking to the NY Times. That story, however, was contradicted by Officer Sicknick’s family, according to this article:

Moreover, the website ProPublica offered a different explanation.

It quoted Ken Sicknick, whom the site identified as the late officer’s brother, as saying that Brian Sicknick had communicated with his family and never mentioned a fire extinguisher attack.

“He texted me last night and said, ‘I got pepper-sprayed twice,’ and he was in good shape,” said Ken Sicknick. “Apparently he collapsed in the Capitol and they resuscitated him using CPR.”

The site said that on Thursday, family members were told that the officer had a blood clot and suffered a stroke and was on a ventilator…

According to what ABC called “sources familiar with the matter,” authorities believe Brian Sicknick’s death was driven by a medical condition.

So ABC had also reported the story that a medical condition was the cause of Officer Sicknick’s death. The ABC report also says this:

They’re also investigating reports that he was attacked with a fire extinguisher or another item at the Capitol, sources said. So far, reports of an attack haven’t been confirmed and authorities are hoping to locate video or other imagery from the scene.

That was written on January 8. To date, I’ve not seen another thing that mentions a confirmation, or any video or other imagery about it.

[NOTE: Sometimes it seems to me that I keep writing the same old story over and over, the one that goes like this: “Here’s what the media is reporting, but it’s not based on what we actually know.” It’s frustrating and exhausting.]

The CDC is now issuing nationwide mask mandates

The New Neo Posted on by

Is the CDC so emboldened by the Democrats being in charge that it believes it can issue a nationwide mandate, just like that? Or was it the Biden administration that told it to go ahead? Of course, both can be the case:

The Centers for Disease Control and Prevention issued a sweeping order Friday evening requiring travelers to wear face masks on most forms of public transportation in an effort to slow the rising number of coronavirus cases across the country.

Travelers and commuters will be required to don a face mask on all airplanes, ships, trains, subways, buses, taxis, and ride-shares. Masks must also be worn while waiting, boarding, traveling, and disembarking at airports, bus or ferry terminals, train and subway stations, and seaports. The order applies to “all passengers on public conveyances” traveling to or within the U.S.

The CDC’s order goes into effect at 11:59 p.m. ET on Monday.

When last I checked, subway stations were extremely local and not under federal jurisdiction. Even if they were under federal jurisdiction, what authority does the CDC have to issue such orders?

Or is even daring to ask such a question a quaint relic of olden times?

Our illustrious and august president issued a flurry of proclamations last week, and among them was an executive order “that required face masks to be worn on federal properties and during interstate travel.” At least that involves the federal government, although even then I don’t see that Biden had the authority to issue such an order – something that doesn’t seem to stop him.

We seem to be in a long-term declared public health emergency, but what does that entitle the CDC to order? Here’s a summary; I find nothing there that would necessarily cover mask mandates.

Here’s a discussion of case law on mask mandates. Key point:

Jacobson v. Massachusetts counsels judges to afford wide latitude to the judgment of health experts, so long as such measures are neutral, generally applicable, and have a medical necessity a government can justify. Thus while courts must be deferential to the need to protect public health, courts must also be vigilant against abuses of public health powers. To do that they must ask what is reasonable, look at the public health evidence, and be attuned to the pre-textual or abuse of power.

A number of courts to date have affirmed the authority of state or local governments to impose social distancing measures such as temporary business closures, although religious freedom claims have a mixed reception. Are face-covering requirements different, though?…

State or local face-covering requirements rely on the current medical consensus that not wearing a face covering or mask may endanger others. Jacobson recognized that a state’s duty to “guard and protect…the safety and health of the people” includes the duty not to endanger others: “Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect to his person or his property, regardless of the injury that may be done to others.”

The entire article seems to be referring to local governments rather than the federal government, and/or private businesses (the latter have more latitude). The entire issue is fraught with peril to liberty, because it is completely unclear what level of medical proof is necessary to justify such restrictions as well as what level of public protection. I would think the levels should be extraordinarily high in order to justify such invasions of private decision-making, but I very much doubt that’s the requirement the courts would require at this point.

Almost any measure of restriction can be argued to protect the public. Not driving at all, for example, would certainly protect people from being injured in traffic accidents, although few would argue for the implementation of such a rule (yet, that is).

This entire situation is a case of the real-life application of the sort of philosophy advocated by Sarah Conly a few years ago in her book Against Autonomy: Justifying Coercive Paternalism. I wrote several posts about the topic, but the most relevant one is this one entitled “For our own good.” Here’s an excerpt there from a commentary by Cass Sunstein on Conly’s book:

[Conly asserts] that autonomy is “not valuable enough to offset what we lose by leaving people to their own autonomous choices.” Conly is aware that people often prefer to choose freely and may be exceedingly frustrated if government overrides their choices. If a paternalistic intervention would cause frustration, it is imposing a cost, and that cost must count in the overall calculus. But Conly insists that people’s frustration is merely one consideration among many. If a paternalistic intervention can prevent long-term harm – for example, by eliminating risks of premature death – it might well be justified even if people are keenly frustrated by it.

That was written in 2013. I was already extremely alarmed by that sort of argument at the time, and things have only grown worse. This is another example of the university as an incubator for extreme ideas that later are disseminated into society at large and take hold. The COVID pandemic has been a remarkably good vehicle for getting us all used to the heavy and yet benevolent hand of Big Brother – and/or Big Sister clamping down on liberty “for our own good.”

[NOTE: It seems to me that this order is really directed at red states. Airlines already enforce such rules, as do blue states and cities at the local level. It’s mainly red states that don’t, and so a federal mandate would affect them the most.]

Clinesmith: raise your hands if you thought…

The New Neo Posted on by

…that FBI attorney Kevin Clinesmith, the man who altered an email on Carter Page in order to mislead the FISA court about Page’s innocence and justify spying on him and other Trump associates, would ever pay any consequences.

No hands? Well, you were correct: no jail, no fine, just 12 months probation and 400 hours of community service.

I wouldn’t even call that a slap on the wrist. More like a love tap.

Virtually no consequences sends a signal that such lying is perfectly okay if done by the correct people in the service of the correct side. Clinesmith was the only one of all the miscreants to even potentially be in line to face some sort of punishment, but it was always unlikely it would be doled out to him. And the rest are not only scot-free, but right now they are sitting pretty because their party is back in power.

Not that it was ever out of power as far as the Deep State was concerned.

What’s Joe Manchin’s game?

The New Neo Posted on by

Commenter “JohnTyler” writes:

I recall that during one of Trump’s SOTU addresses, Manchin stood up to applaud one of Trumps points (think it was about energy policy).
Chucky Schumer, who was sitting next to Manchin , ORDERED Manchin to sit down.
Like a “good German” Manchin immediately sat down.

Just another illustration that demokrats never break ranks and those that do, well, they just go away (e.g. Tulsi Gabbard, Joe Lieberman).
You will never find a “John McCain” in the demokrat party.
In the best traditions of Stalinist Russia, you either tow the line or you are out.

I agree that the Democrats toe the line to a far greater extent than Republicans. And although I don’t recall that incident during the SOTU address, I certainly agree with the point that Manchin’s defiance of the Democratic leadership has until now been fake and essentially theater. He votes against them when it doesn’t matter and his vote isn’t needed. When it is needed, he talks about defying them and then has some sort of last-minute change of heart and finally is “convinced” that principle dictates he vote with them (at least, that’s my recollection).

The difference between Manchin and Lieberman/Gabbard is important, however. Joe Lieberman and Tulsi Gabbard were expendable because they came from states where they could be easily replaced. Who needs even a semi-defiant Democrat when that person can easily be replaced by a more compliant one in a state that is basically blue? But Joe Manchin comes from a red state, and therein lies his special importance. The person he is most like in the GOP is Susan Collins, who if driven from her seat in Maine would almost certainly be replaced by a Democrat. If Manchin goes, a Republican would be likely to replace him to represent West Virginia.

So Manchin does hold some power in a very evenly divided Senate. He is very much needed by the Democrats and would not be easy to replace. Whether he will ultimately choose to exercise that power in the sense of actually voting against the wishes of Schumer et al in a vote where he actually stymies their plans is anyone’s guess, and it’s wise to be doubtful. I’m speaking, of course, of the filibuster.

If Manchin were to vote to end the filibuster it would be political suicide for him as far as West Virginia goes. However, if the filibuster were to be eliminated, the Democrats wouldn’t need Manchin as much anymore because at that point they might be able to pass just about anything and everything they wanted to pass, including a voting “reform” bill that will greatly facilitate fraud, as well as a bill giving statehood to most of DC in order to increase Democrat votes in the Senate and give them more of a safe margin. So the Democratic leadership might be willing to sacrifice Manchin’s seat and would pressure him to vote to end the filibuster and facilitate the party’s dominance at the cost of his own job. I don’t know exactly what form that pressure would take (and/or what future reward they might be promising), but I have little doubt they would try to exercise it if need be.

I titled this post “What’s Manchin’s game?”, but that doesn’t mean I know the answer. From my previous observations of him, I doubt he would defy the leadership on principle, although I think he might do it to save his own political future. He might be inclined to do it if Arizona’s Sinema (who might be somewhat more mavericky than Manchin) continues to stand firm against the filibuster as well.

It also occurs to me that Schumer may not be ready to end the filibuster just yet. So Manchin’s and Sinema’s “no” on the filibuster might serve Schumer’s and the party’s purposes for the moment. Schumer might sense that the party needs to slow down a little bit and let the public settle down, and then go full steam ahead later. At that point, he can say that the stubborn nasty stonewalling Republicans made him end the filibuster, and that he’s oh-so-reluctant to do so but he unfortunately had no choice. And then the orders will go out to Manchin and Sinema that it’s time to cave.

GameStop and the hedge funds, continued

The New Neo Posted on by

Glenn Greenwald with some thoughts, including a caveat about who’s doing the buying. Among other points he makes, he points out that although much of the recent buying of GameStop stock has been driven by the redditers, the price of the stock went up so very fast and so much that it’s possible that rival hedge funds may have gotten into the game in order to drive some of their fellow hedge fund competitors into the cellar:

I also call your attention to this comment by “TommyJay”:

Well regulated short selling is a good thing for a market. Decades ago, Saudi Arabia thought they would create a cleaner more ethical stock market by not allowing any short selling. Their whole market blew up sky high and then imploded…

…[S]hort selling and over-leveraging need not go together, although they did [in the GameSpot caper]. As huxley said, these [hedge funds] were playing with shares that don’t exist. Sure it’s injudicious for the hedge fund that demanded the borrowed shares, but somebody is committing a type of fraud.

That somebody is the giant investment bank/brokerage who tells the hedge fund “We don’t actually have shares to lend you, but we will pretend otherwise (because it’s all just 1’s and 0’s in a file somewhere) and we will worry about cleaning it all up later when the 3 day settlement period ends.” IMHO this is the origin of the real crime, which maybe isn’t even a crime if the SEC says it isn’t.

We keep hearing the “vulture” comparison. Nevertheless, vultures have an important function in the food chain. As I’ve said many times before, I’m no financial expert. So I imagine that the comments to this post should be interesting and edifying.

The GameStop plot thickens

The New Neo Posted on by

Wow, just wow. Could this be true?:

Now comes news that Robinhood went further than just freezing trades on GameStop; They have allegedly begun force-selling investors’ shares. On Twitter, investors began sharing their stories of being notified that their shares of GameStop were being sold without their direction or permission, presumably as a result of Wall Street’s complaints that the actions from Robinhood investors was causing the problem for the market and more traditional investors.

Also, it doesn’t seem to have anything to do with ordinary calls of stock bought on margin.

You think that’s bad? Try this on for size:

Additionally, a person claiming to be a Robinhood employee stated on Reddit that the directions to close trading came from Wall Street and the Biden White House.

True? Untrue? Only the Shadow knows. It’s certainly believable, however.

A lawsuit has already been filed against Robinhood:

As a result of Robinhood’s actions, a class actions lawsuit was filed in New York against the investor app, claiming that Robinhood’s actions denied these retail investors of access to the open market.

News on this is breaking very fast. The situation is still murky, though.

Everybody Knows

The New Neo Posted on by

Leonard Cohen songs keep coming to mind – and not just any Leonard Cohen songs, but the ones he wrote in the late 1980s and early 1990s, during an especially dark period in his musical oeuvre. Cohen had a lot of dark periods, but that one was especially bleak.

And unfortunately, seemingly prophetic for this particular point in time – as you’ll see if you follow the words (note, for example “everybody knows the plague is coming…”):

I’ve always felt that the lyrics of that song are serious and ironic at the same time. In other words, is what “everybody knows” actually true all the time? Of course not. But sometimes it is.

McConnell’s strategy?

The New Neo Posted on by

I know just about everybody loves to bash McConnell. He’s not my favorite guy either, but one thing I’ve learned over the years that he’s been in power positions in the Senate is not to sell him short (hmmmm – in light of GameStop, now I suddenly notice what that phrase actually means) on tactics. I’m always reading how he’s stabbing us all in the back, but I also notice that he sometimes actually outwits the Democrats.

So I at least entertain the notion that this is the case:

…[F]ormer Senate Majority Leader Mitch McConnell demanded as a condition of reaching a power-sharing agreement with Democrats that the new Senate Majority Leader Chuck Schumer promise to keep the filibuster in place. This was never a serious threat because any such promise was unenforceable; Schumer could agree to it and then break the deal the moment Republicans filibustered something the Democrats passionately cared about passing.

Yet if the goal of McConnell’s gambit was to preserve the filibuster, it must be judged a smashing success. That’s because by forcing the issue right up front, McConnell prompted two Democrats — West Virginia Sen. Joe Manchin and Arizona Sen. Kyrsten Sinema — to state forthrightly on the record that they have no intention of supporting the elimination of the filibuster, now or in the future.

Not only does that mean the left’s plan is dead in the water. It also means that McConnell has already called Schumer’s bluff in advance, preventing him from using the threat of eliminating the filibuster as leverage to persuade Republicans not to use it to slow down or scuttle legislation Democrats favor.

I don’t agree with that last paragraph. I don’t think the left’s plan is dead in the water, and I think it’s dangerous to think so. I think this is only one skirmish in a lengthy war. The Republicans’ position isn’t good now, and I’ve not been especially impressed by the ability of the GOP to fight anyone nearly as hard as the left does. But that doesn’t mean they don’t fight at all, and it certainly doesn’t mean both parties are exactly alike (that’s an idea I’ve been fighting here for just about as long as I’ve been blogging).

The author of that piece also mentions that there are Democratic voters who are not fully onboard with the left. True, but do you think the left actually gives a rat’s patootie about what the voters want, if it can fool them as to what will happen once those voters cast their votes for them? Yes, the left does care about how much of its hand to tip in advance, because it doesn’t want to scare those voters away by letting them know what’s in store for them. That’s the main reason Joe Biden was selected as the Democratic candidate this year – he had the best chance of confusing the public as to what on earth he was planning to do (Biden himself may be a bit confused on that, too, but no matter because I doubt he’s calling the shots these days).

I have been deeply anxious about the filibuster for almost a year now, ever since the COVID fallout endangered Trump’s and the GOP’s election chances. I feared that the Democrats would control both houses and the presidency after the election, and that eliminating the filibuster was the first order of business on their agenda after the new administration and legislatures were in place.

Once Manchin and Simena made their declarations, my anxiety ratcheted down a notch or two. It’s not that I trust they will keep their word. But I think they might, if only for the sake of self-interest because they don’t want to commit political suicide.

I’ll take it, for now.

Hedge fund fun: the GameStop wars

The New Neo Posted on by

So I’ve spent a while trying to get up to speed on the GameStop battles. If I can be said to have a wheelhouse, this is not it, and I’m going to assume that most of my readers already know more about it than I do.

If not, you might want to read any of these articles (somewhat arbitrarily chosen; there are tons more): this or this or this.

But that’s old news. Today the hedge fund protectors fought back, and trading platforms such as the somewhat ironically named Robinhood have shut down the buying of GameStop and related stocks on its app:

“We continuously monitor the markets and make changes where necessary. In light of recent volatility, we are restricting transactions for certain securities to position closing only,” the company wrote in a blog post.

Other platforms like Interactive Brokers have either confirmed similar moves or been rumored to have placed restrictions, though traffic and trading halts have also stymied traders.

Robinhood also shut down buying of AMC (AMC), BlackBerry (BB), Bed Bath and Beyond (BBBY), Express (EXPR), Koss (KOSS), Naked Brand Corp (NAKD) and Nokia (NOK). Users can only liquidate or close positions.

Which brings together the following very strange bedfellows:

Here’s my question, which is probably very stupid – but hey, as I said, this is far from my field of expertise: is Robinhood legally allowed to do this, and if so under what sort of rule or rationale? I might add another question: did anyone twist Robinhood’s arms?

[UPDATE: As expected, AOC’s and Cruz’s romance was short-lived. Her response could be viewed as hysterical – if in fact it was actually sincere, which I’m going to assume it was not.]

Fortress DC

The New Neo Posted on by

All this Bidenesque healing and normalcy is just so soothing:

According to Ken Cuccinelli, the former head of the Department of Homeland Security, Pelosi not only asked for those massive numbers of troops, but she also asked for the Guard to have crew-manned vehicle mounted machine guns. Now that’s absolutely crazy, was she really envisioning Guard members machine gunning down Americans? Remember these are the same folks who ignored violent riots precipitated by BLM/Antifa for months and chastised President Donald Trump for responding to them with federal agents.

But now reports are suggesting that Pelosi wants them there into March, during impeachment proceedings…

So she’s going to try to use them like her personal Army till mid-March? Welcome to the security state. Based on what? Notice how they’re very happy to use the Guard for themselves yet not so much for other citizens during the months of rioting.

This is theater for the masses. The leftists burning huge sections of city after city in months’-long riots were just protestors; nothing much to be afraid of there. But a short-lived riot that seems to have been predominantly on the right – or what might be called the far-right, and which only reached the intensity it did because of totally inadequate security – now, that requires enormous numbers of troops, staying for an extended and yet vaguely-defined period of time. The aim is to say that the first group isn’t dangerous but the second group is greatly to be feared and really is an insurrection that must be put down by increased monitoring and restriction of the civil liberties of everyone on the right.

[NOTE: I’ve been writing a lot of posts lately with “liberty” as one of the categories. No surprise there.]

The filibuster is the key to the Democrats’ far-left agenda

The New Neo Posted on by

Whatever the recent proposals of the Democrats might be – DC as a state, court-packing, national voting “reform” that would enable voting fraud in the entire country – the key to passing or not passing such bills in the current Congress is the closeness of the Senate and its still-current filibuster/cloture rule that allows a minority party to block a bill if it doesn’t have 60 votes for cloture (ending a debate and taking a vote on the bill).

I believe that even the RINOs are unlikely to vote for cloture on most of the bills on the Democrats’ far left agenda in numbers high enough to reach that 60-vote threshold. So the Democrats are strongly tempted to nuke the filibuster, which they can do by a simple majority vote.

Now we have Joe Manchin of West Virginia and Kyrsten Sinema of Arizona saying they are against the nixing of the filibuster and will not be voting for it. Like all such promises, it must be looked at with a wary and cynical eye. They both are from states where supporting the end of the filibuster would probably be political suicide for them, but there are other reasons this might be a good temporary move for the Democrats. It gets the Senate rolling. And it’s a useful threat to keep at the ready.

After all, Manchin and Sinema can always change their minds if the Republicans fail to show the proper “unity” – that is, if they keep using the filibuster/cloture method to block the Democrat far-left agenda. The Democrats can say the Republicans drove them to it by their wicked obstructionist ways. I don’t know if the American public will buy it, but if the filibuster goes, it won’t matter what the American public wants because one of the first things that will be done is voting “reform” that throws away many of our voting security guarantees (I plan a longer post on that issue).

Of course, there’s also the handy-dandy tool known as the executive order, and Biden has shown himself to be not the least bit shy about using it to accomplish things unilaterally and bypass Congress altogether. So perhaps Congress has become irrelevant.

In the past – and the not-too-distant past at that – support for the Senate filibuster was bipartisan. Despite periodic griping about it by the party in the majority, Democrats and Republicans understood that because they wouldn’t be in the majority forever, preserving the filibuster protected their future minority rights. No one wanted to be the victim of what Madison referred to as “the tyranny of the majority.” Now the Democrats are probably willing to chance it because they believe that they can pass laws that will guarantee they will never be out of power for the foreseeable future.