Week-end Wrap – Political Economy – November 26, 2023
by Tony Wikrent
The deep state unleashed oligarchy
Patrick Lawrence: What Died 60 Years Ago? A President and a Nation’s Promise
[Scheerpost, via Naked Capitalism 11-24-2023]
Why Has America Tolerated Six Illegitimate GOP Presidents?
Thom Hartmann, November 22, 2023 [DailyKos]
...it’s important to remember that Dwight Eisenhower was the last Republican president who believed in democracy, the rule of law, and that government should prioritize what the people want….
This has brought us a series of criminal Republican presidents and corrupt Republican Supreme Court justices, who’ve legalized political bribery while devastating voting and civil rights.
None of this was a mistake or an accident, because none of these people truly believed in democracy.
This rejection of democracy and turn toward criminality and it’s logical end-point, fascism, started in the modern GOP with Richard Nixon….
[Nixon sabotaged peace in Vietnam to win the 1968 election]
Next up was Ronald Reagan. He not only didn’t believe in democracy, he didn’t even believe in the American government….During the Carter/Reagan election battle of 1980, then-President Carter had reached a deal with newly-elected Iranian President Abdolhassan Bani-Sadr to release the fifty-two hostages held by students at the American Embassy in Tehran.
[This deal was sabotaged by Reagan by creating the illegals Iran-Contra arms deal.]
...Fifty-four years of Republican presidents using treason to achieve the White House (or inheriting it from one who did) has transformed America and dramatically weakened our democracy.
Those presidents have contributed their own damages to the rule of law and democracy in America, but their cynical Supreme Court appointments have arguably done the most lasting damage.
Republican appointees on the Court during this time have gutted the Civil Rights Act, the Voting Rights Act, union rights, the Affordable Care Act, and legalized Republican voter purges. They legalized the bribery of politicians by billionaires and corporations….
Why I Am a Liberal
Cass Sunstein [New York Times, via Heather Cox Richardson, November 21, 2023, Letters from an American]
In the New York Times today, legal scholar Cass Sunstein warned that “[o]n the left, some people insist that liberalism is exhausted and dying, and unable to handle the problems posed by entrenched inequalities, corporate power and environmental degradation. On the right, some people think that liberalism is responsible for the collapse of traditional values, rampant criminality, disrespect for authority and widespread immorality.”
Sunstein went on to defend liberalism in a 34-point description, but his first point was the most important: “Liberals believe in six things,” he wrote: “freedom, human rights, pluralism, security, the rule of law and democracy,” including fact-based debate and accountability of elected officials to the people.
Strategic Political Economy
Anger Is What’s Driving the US Economy
[Bloomberg, via Naked Capitalism 11-22-2023]
“A deep-seated anger about how the economy is ‘rigged’ has been simmering since long before the pandemic.”
[X-Twitter, via Naked Capitalism 11-25-2023]
Global power shift
[X-Twitter, via Naked Capitalism 11-21-2023]
Ukrainian Pilot Defects to Russia: U.S. Arms Cutoff and Counteroffensive Fallout Crush Morale
[Military Watch Magazine, via Naked Capitalism 11-20-2023]
Russia is transitioning to gas heating in the countryside – Europe is moving to log fireplaces in the city
Gilbert Doctorow, via Naked Capitalism 11-20-2023]
The Era of Total U.S. Submarine Dominance Over China Is Ending
[Wall Street Journal via Naked Capitalism 11-22-2023]
Gaza / Palestine / Israel
Many Politicians Support Israeli Genocide Because They’re Being Blackmailed
Ian Welsh, November 22, 2023
[Jeffrey Epstein’s role as Israeli honeytrap]
1,000 boats said set to leave Turkey for Gaza waters in new ‘Freedom Flotilla’
[Times of Israel, via Naked Capitalism 11-23-2023]
[X-Twitter, via Naked Capitalism 11-21-2023]
IDF Knew Real Hamas HQ While Lying About al-Shifa
[Consortium News, via Naked Capitalism 11-24-2023]
[X-Twitter, via Naked Capitalism 11-19-2023]
[X-Twitter, via Naked Capitalism 11-25-2023]
No Exit From Gaza
[Foreign Affairs, via Naked Capitalism Water Cooler 11-23-2023]
“Why Israel—and the United States—Has Only Bad Options for the Day After.”
Benjamin Netanyahu: 'We're fighting America's war'
Thomas Neuburger, November 22, 2023
Health care crisis
Physicians’ Refusal to Wear Masks to Protect Vulnerable Patients—An Ethical Dilemma for the Medical Profession
[Journal of the American Medical Association, via Naked Capitalism 11-22-2023]
The carnage of mainstream neoliberal economics
In Congo’s Cobalt Mines
Nicolas Niarchos [The New York Review, December 7, 2023 issue]
The lucrative mining industry is unscrupulous, environmentally disastrous, and a linchpin of Congo’s economy. How can it be reformed?
The three-stage process through which African resource sovereignty was ceded to foreign mining corporations
[Review of African Political Economy, via Naked Capitalism 11-20-2023]
Supermarket Squeeze: The Real Costs of the Kroger-Albertsons Deal
[American Economic Liberties Project, via Naked Capitalism 11-20-2023]
Chicago area residents flee from senior community after 300% increase in costs
[CBS, via Naked Capitalism 11-24-2023]
Existing homeowners with 3% mortgages remain frozen in place, as sales fall to a new 28 year low
[Angry Bear, via Naked Capitalism 11-25-2023]
Power Laws in the Stock Market
[A Wealth of Common Sense, via The Big Picture 11-20-2023]
Bessimbinder found just 86 stocks accounted for half of all wealth creation in the U.S. stock market going back to 1926. All of the wealth creation in that time came from just 4% of stocks. Nearly 60% of stocks failed to beat T-bill returns over their lives. Close to 40% of stocks barely beat T-bills.
They’re not capitalists — they’re predatory criminals
Binance CEO CZ quits, Richard Teng to take over; crypto exchange to pay US$4 billion for money laundering
[The Business Times, via Naked Capitalism 11-22-2023]
Is There an Establishment Plan to Repeal Antitrust Laws?
A Special Report On Greedflation: How Corporations are Making Record Profits on the Backs of American Families (pdf)
[via Heather Cox Richardson, November 21, 2023 [Letters from an American]
...plenty of grocery prices are still rising, and Senator Bob Casey (D-PA) has taken on the issue, documenting how “corporations are making record profits on the backs of American families.” In a public report, Casey noted that from July 2020 through July 2022, inflation rose by 14%, but corporate profits rose by 75%, five times as fast. A family making $68,000 a year in 2022 paid $6,740 in that period to “corporate executives and wealthy shareholders.”
Is There an Establishment Plan to Repeal Antitrust Laws?
Lee Hepner, November 13, 2023 [BIG}
The torpedoes from the Antitrust Division and the Federal Trade Commission are exploding, and Wall Street is very angry. Here's what they are planning if they win in 2024.
Last Monday, one of the large number of Washington, D.C. insider trade publications - Politico - called out Biden antitrust policy as the single most problematic area for financiers. “In taking on tech giants and forcing the collapse of lucrative deals,” said Politico Morning Money, “Lina Khan has earned the status of Wall Street nemesis.” It’s true. The torpedoes launched last year - from rule-makings to challenges of Google and Spirit-JetBlue - are now exploding.
In this issue, we’re going to describe how the establishment is hitting back, in ways you don’t see….
It’s not just certain Democrats making the case. After all, in 2020, it was Donald Trump’s administration which brought the major Google antitrust suit currently being litigated. In academia, today legal scholars and historians are trying to reorient the history of America as one grounded in anti-monopoly thought, as this interesting collection of essays put out by the Tobin Project shows. And in key ways, conservative legal thinkers are ahead of the curve on consolidation. Take the highly influential George Mason law professor Todd Zywicki, who interviewed Biden antitrust chief Jonathan Kanter on the new proposed merger guidelines, calling them a “moderate” way to split the difference between traditional Chicago School conservatives and a newer populist sentiment.
That interview happened at, of all places, the Federalist Society, which is the beating heart of the conservative legal movement, where law professors, high-powered lawyers, circuit court judges and Supreme Court justices spend time networking and learning from each other. Justices Alito, Barrett, Gorsuch, and Kavanagh all attended last Friday’s black tie Federalist Society event….
And yet, in certain corners of the establishment, the pro-monopoly tradition that started in the 1980s remains dominant. Last week, an appropriations bill in the House - one of the spending bills that keeps government working - was amended multiple times to repeal antitrust laws.
Let’s look at a few of those proposals. There was a pro-junk fee amendment from Rep. Scott Fitzgerald (R-WI), which would “prohibit funding for the FTC to make Unfair Competition rule-makings.” Such wording sounds anodyne. But if you strip away the legalese, Fitzgerald is seeking to do away with the rule-making authority the FTC is using to ban annoying junk fees, which deceive customers into paying higher prices for food, hotels, event tickets, car rentals and more. It’s also the authority the FTC is using to prohibit non-compete agreements, which trap people in their jobs and deprive workers of some $300 billion in wages per year.
There was another amendment which would prevent the FTC from enforcing its unfair methods of competition authority outside the bounds of the Clayton and Sherman Act. This one would effectively end or weaken key parts of the FTC’s case against Amazon, particularly its use of algorithms to raise prices in tacit collusion with other sellers, as well as its actions against pharmacy benefit managers on lower insulin prices and its work against price discrimination towards small and medium size grocers….
A Deep Dive into the Unprecedented Wall Street Journal Attack on FDIC Chairman Martin Gruenberg
Pam Martens and Russ Martens, November 21, 2023 [Wall Street on Parade]
...So what’s really going on here?
Gruenberg is aggressively pursuing higher capital rules for the mega banks on Wall Street which pose systemic risk to the U.S. banking system. (No community bank would be impacted by the proposed capital rules.) Toppling Gruenberg from the Chairmanship of the FDIC would leave an evenly split vote by its Board when the FDIC votes on the new capital rules, with two Republican votes and two Democrat votes. Since it takes a majority vote to finalize a rule, the new capital rules would very likely not go forward – an outcome that Wall Street’s mega banks have heavily lobbied for and bankrolled with millions of dollars.
There is also some evidence that certain Republicans on the Senate Banking Committee and House Financial Services Committee are less than objective parties in efforts to discredit Gruenberg….
Information age dystopia / surveillance state
The Dystopian AI Future Some Fear Is the Present-Day Reality Others Live
[FAIR, via Naked Capitalism 11-22-2023]
Lambert Strether, Naked Capitalism Water Cooler 11-21-2023]
As readers know, my dream is that AI goes through the enshittification cycle with great rapidity and force. From my armchair at 30,000 feet, I don’t believe that AI is going to become a super-intelligence, or anything like it. Silicon Valley can’t even get self-driving cars to work, and surely that’s a simpler problem than artificial general intelligence. Rather, AI will bring about a Philip K. Dick-style dystopia, a world where it’s never possible to reach a human to resolve a problem. For example, consider the following value extraction chain: An AI at the hospital upcodes one of your medical treatments. An AI at the insurance company jacks up your bill. When you complain to the insurance company, your reach an AI, which sends you into an AI-generated fruitless phone-tree. The possibilities are limitless!
Media Matters’ Deceitful Study to Silence X/Rumble. Plus: Darren Beattie on New 1/6 Tapes, Argentina’s Election, & Israel-Gaza
Glenn Greenwald [via Naked Capitalism 11-22-2023]
[Lambert Strether: “Again, I remember very well how the spooks, the press, Parliamentary Labor, and the Israeli embassy took down Jeremy Corbyn with a dogpile of false charges of anti-semitism. So my heuristic is that all such charges are performative and motivated until proven otherwise.”]
Media Matters and the Fake News Era Go to Court (excerpt)
Matt Taibbi [Racket News, via Naked Capitalism 11-22-2023]
Climate and environmental crises
Richest 1% account for more carbon emissions than poorest 66%, report says
[Guardian, via Naked Capitalism 11-20-2023]
Two books that could help save the planet
[Astronomy, via Naked Capitalism 11-19-2023]
First of all, an easy-to-read and very well illustrated title is Jeffrey Bennett’s A Global Warming Primer: Pathway to a Post-Global Warming Future, 2d ed., 146 pp., paper, Big Kid Science, Boulder, Colo., 2024, $15.
Bennett is a well-known astronomer and educator who has spent parts of his career at Caltech and the University of Colorado. Aimed at adults, this work is nonetheless a relatively basic explanation of the science behind human effects on the climate, well illustrated with numerous diagrams. The writing is clear and understandable, and countless questions about all sorts of aspects of climate change are posed and answered. Such a work ought to be mandatory for the climate deniers, who don’t grasp the basics of what is going on, or pretend (?) to be morons in front of cameras inside or out of the U.S. Capitol. Chapters cover the basics of the science, the skeptic debate, the expected consequences, present and future solutions, and a pathway for the future.
Sample questions are basic and the answers address the realities such that anyone can understand them. They start with asking how we know that carbon dioxide production makes a planet warmer, and goes from there. The walk through the data, both current and historical, explains away some of the naïve assumptions some climate deniers like to pose as potential arguments, such as natural temperature variations in Earth’s history. In short, this book makes clear the realities of climate change for anyone who is halfway intelligent and doesn’t have a private interest in sticking their head in the sand.
The second new book is Michael Mann’s Our Fragile Moment: How Lessons from Earth’s Past Can Help Us Survive the Climate Crisis, 320 pp., hardcover, Public Affairs, New York, 2023, $30. Mann is a Presidential Distinguished Professor of Earth and Environmental Science at the University of Pennsylvania, and a frequent contributor to the press on climate change topics.
Mann’s new book offers a sweeping history of the conditions of our planet. It offers quite an intellectual analysis of what is going on, beginning with understanding the tapestry of Earth’s 4.54-billion-year record. As Mann demonstrates with substantial evidence and reasoning, the emergence of our earliest proto-human ancestors some 2 million years ago was enabled by the very thing that now threatens us — climate change. As the tropics eventually dried, creating savannas in what is now Africa, humans spread and could hunt more effectively than before. More recently, during the “Younger Dryas” just 13,000 years ago, thawing of the last Ice Age helped enable agriculture to take hold and cities to take root.
But Mann reminds us that human habitability is hardly guaranteed as a one-way street. Earth as a habitat is fragile, and always has been….
The world’s 280 million electric bikes and mopeds are cutting demand for oil far more than electric cars
[The Conversation, via The Big Picture 11-23-2023]
...for short trips, an electric bike or moped might be better for you – and for the planet. That’s because these forms of transport – collectively known as electric micromobility – are cheaper to buy and run. But it’s more than that – they are actually displacing four times as much demand for oil as all the world’s electric cars at present, due to their staggering uptake in China and other nations where mopeds are a common form of transport.
Creating new economic potential - science and technology
How mathematics built the modern world
[Works in Progress, via The Big Picture 11-25-2023]
Mathematics was the cornerstone of the Industrial Revolution. A new paradigm of measurement and calculation, more than scientific discovery, built industry, modernity, and the world we inhabit today.
Democrats' political malpractice
Senate hopeful Hill Harper says he was offered $20M to run against Rashida Tlaib instead
[Detroit News, via Naked Capitalism Water Cooler 11-23-2023]
“U.S. Senate hopeful Hill Harper said Wednesday he was offered a sizeable campaign donation from a Metro Detroit businessman if he dropped out of Michigan’s Senate race and instead ran against Democratic U.S. Rep. Rashida Tlaib of Detroit… ‘I said no. I won’t be bossed, bullied, or bought,’ Harper said on X. ‘Yes, telling the truth here will put a target on my back. But if we ALL come together we can win.’: And: [Marshall Wittman, a spokesperson for AIPAC] stressed that AIPAC was ‘absolutely not involved in any way in this matter.” I guess that means they were? And the lot thickens: “Harper later said the offer was proof of a broken political system tilted toward the wealthy and evidence that ‘establishment donors’ don’t believe Harper’s Senate Democratic primary opponent, U.S. Rep Elissa Slotkin of Holly, can defeat him.”
The Shocking Donors Behind a Pro-Trump Nonprofit
Tori Otten, November 22, 2023 [The New Republic]
Conservative Group Accidentally Reveals Its Secret Donors. Some of Them Are Liberal Orgs.
Roger Sollenberger, November 22, 2023 [DailyBeast]]
A conservative nonprofit tied to a controversial “White House-in-waiting” for a second Donald Trump presidency has apparently unintentionally revealed its top donors—and two of them are foundations famously associated with liberal causes….
According to the tax statement, the Omidyar Network has contributed a total of $400,000 to American Compass since 2020. (In reality, Omidyar has donated $500,000, including forthcoming installments.) The Hewlett Foundation—a longtime supporter of National Public Radio—has accounted for more than one-third of American Compass’ total public support, giving a combined $1,486,000 over the same period, with an extra $475,000 dose this January.
American Compass also disclosed support from another center-left group, the Action Now Initiative, which has contributed a total $250,000 since 2020, according to the tax return. ANI is run by John Arnold, a billionaire former Enron executive and Democrat whose nonprofit network has funded aerial police surveillance in Baltimore, among other controversial philanthropic investments….
American Compass is part of the New Right movement—a group of young Republicans who are essentially reverse-engineering an intellectual framework to reconcile the populist, big-government tenets of Trumpism with conservatism. While the movement has attracted a growing number of adherents and think pieces, it is still a nascent and largely theoretical amoeba, which dwells in the broader nationalist environment and subsists on a diet of hyper-intellectual contrarianism.
In economic terms, its chief innovation seems to be the embrace of government intervention as a tailored and self-serving lever of power that Reagan conservatives dismissed for decades….
American Compass founder Oren Cass—a former Bain executive and adviser to Mitt Romney’s failed 2012 presidential bid—has staked out what he casts as a more labor-friendly economic conservatism. While he has advocated for “genuine” bipartisanship, Cass is also aligned with the New Right. He rejects many of the absolutist tenets of laissez-faire capitalism that the GOP has held dear for so long, arguing that free-market fundamentals have failed the American worker. Last year, Cass drew a salary of $275,000 from his nonprofit—more than one out of every four dollars raised….
In reality, Project 2025’s labor platform appears to reflect Trump’s own identity crisis
: He says he supports unions—a nod to political necessity—but his actions reveal otherwise
. And Project 2025’s own proposals appear sharply at odds with Omidyar’s broad “pro-worker” cast. For instance, the group states that federal organized labor is “incompatible” with Trumpist policies, and its labor platform has been roundly criticized
with pro-worker bona fides
The labor policies in the original Mandate for Leadership were written by American Compass adviser Jonathan Berry, a former top official in Trump’s Labor Department. (Other American Compass advisers
include Trump’s first attorney general Jeff Sessions, Trump’s tariff-war mastermind Robert Lighthizer
, Democratic Hawley fan Matt Stoller
, and anti-porn crusader Patrick T. Brown
Collapse of independent news media
The Washington Post is very worried that American women don't want to marry Trump supporters
Dartagnan, November 26, 2023 [DailyKos]
In an editorial published last week, titled, “If Attitudes Don’t Shift, A Political Dating Mismatch Will Threaten Marriage,” the Washington Post’s editorial board points out that political polarization in this country has reached the point where it is now a prominent, often decisive factor in determining who Americans settle on as their potential mates. They emphasize this trend is now so acute it may actually threaten the institution of marriage as a whole. In particular, it seems that Democratic women are rejecting potential Republican suitors not only for marriage but as relationship material, all across the board….
Those who click on the links in that paragraph will first be directed to an article in the Atlantic written by two members of the Institute for Family Studies (IFS), a right-wing think tank whose founders and contributors promote two-parent, heterosexual marriages, advocating fundamentalist “Christian” marriage principles and the abolition of no-fault divorce laws. The second link is to a survey on marital satisfaction conducted by the same conservative-leaning IFS….
The Biggest Hidden Bias in Politics
[The Garden of Forking Paths, via The Big Picture 11-22-2023]
One recent survey found that 52 percent of Americans can’t name a single US Supreme Court Justice. In 2011, a poll found that twice as many Americans knew that Randy Jackson was a judge on American Idol than could correctly identify the Chief Justice of the US Supreme Court. And in 2006, three years after the war in Iraq began—the most important element of US foreign policy at the time—six in ten Americans couldn’t identify Iraq on a map of the Middle East. (A little over half could point to New York state on a map)….
From April 2009 to January 2011, I worked on the political campaign and transition team for the soon-to-be Governor of Minnesota (I got hired as his driver—which is exactly what it sounds like—but eventually served at various times as the Deputy Campaign Manager and Policy Director).
I spent weeks carefully crafting five and ten-point policy plans, on everything from education to taxes, health care to transportation. These were crucial for winning the support of interest groups, but when I looked at the total number of downloads for the PDFs of our policy agenda, I was dumbstruck. By the end of the campaign, the policy plan for education had been downloaded something like 47 times. This was the future governor of a state of five million people. We won more than 919,000 votes. At most, 47 of those voters looked at our two-page summary of education policy ideas.
I saw this first-hand when I did what every American political campaign staffer must do: march in parades with the candidate. People would come up to the candidate and say “We’re voting for you!” As the policy director, I’d ask why we won their vote. The most common answers were related to feelings of trust, character, party affiliation, his deep roots in Minnesota, and the idea that he was a good person with integrity. The least common answers, by far, were about policy.
Through those experiences, the campaign taught me one of the most important lessons I’ve learned about politics—and one that’s rarely taught in political science. Ever since, I’ve been acutely aware of ignorance bias.
This doesn’t mean that voters are stupid, or idiots, or that elites are right and the masses are wrong. Instead, it means that voters use cognitive and informational shortcuts—schemas—to make decisions about voting and to understand the sphere of politics. Those shortcuts rarely include in-depth analysis of policy ideas or deep-dives into issues related to governance. Whether that’s good or bad is beside the point. It’s our reality—and we make serious mistakes when we pretend otherwise.
How a flood of congressional retirements is rocking the 2024 elections
[Politico, via Naked Capitalism 11-19-2023]
A surge of lawmakers calling it quits the past three weeks is on the verge of putting Congress on pace to have more members retire before the next election than in any similar cycle over the past decade.… This month alone, nine members of the House and Senate have said they won’t run for reelection next year. That’s the second-most in any single month going back at least as far as 2011 — and there’s still two weeks left in November. A total of 34 members of Congress have already announced they’re not running again, and that doesn’t count those who plan to quit early or have already resigned.
How the Hell Did This Guy Become Argentina’s Next President?
David Rieff, November 21, 2023 [The New Republic]
Geert Wilders, A Fascist, Just Came In First In Nice Mild Holland
Howie Klein, November 25, 2023 [downwithtyranny.com]
...The neo-fascist PVV, led by Geert Wilders, came in first with 23.6% and 37 seats, up a startling 20. They won every province but Utrecht and didn’t do as well as in the rest of the country in North Holland (Amsterdam) either. In fact, Wilders-- like Trump-- lost all the big cities. In second place was Frans Timmerman’s left of center Greens + Labour, which had won 10.9% (17 seats) in 2021 and took 15.5% (25 seats) this time. The Socialist Party went from 6% and 9 seats to just 3.1% and 5 seats….
Conservative / Libertarian Drive to Civil War
Behind the Curtain: Trump allies pre-screen loyalists for unprecedented power grab
[Axios, via The Big Picture 11-19-2023]
Former President Trump’s allies are pre-screening the ideologies of thousands of potential foot soldiers, as part of an unprecedented operation to centralize and expand his power at every level of the U.S. government if he wins in 2024, officials involved in the effort tell Axios. Why it matters: Hundreds of people are spending tens of millions of dollars to install a pre-vetted, pro-Trump army of up to 54,000 loyalists across government to rip off the restraints imposed on the previous 46 presidents.
“Do they not realize I like to fight?” The 6 most revealing Fox News details in “Network of Lies”
[Salon, via The Big Picture 11-19-2023]
...As media analyst Brian Stelter determines in his newest book “Network of Lies: The Epic Saga of Fox News, Donald Trump, and the Battle for American Democracy,” Fox News treats its news side as second-class citizens at best, or at worst, traitors.
Much of what “Network of Lies” discovers is more validating than shocking, mainly that Fox News lies to appease its faithful because that’s what they want. Following Joe Biden’s election to the presidency in 2020, the audience wanted coverage of fraud that didn’t exist. So Fox ginned it up.
Revelations from summary judgment briefs related to Dominion’s defamation case establish this as fact, not suspicion….
The (anti)Federalist Society Infestation of the Courts
6 things to know about the Supreme Court’s new ethics code
[Politico, via Naked Capitalism 11-19-2023]
Chief Justice John Roberts’s Guide to the New Supreme Court Ethics Code
[McSweeney’s Internet Tendency, via Naked Capitalism 11-19-2023]
The Fifth Circuit Will Soon Be the New NLRB
[On Labor, via Naked Capitalism 11-22-2023]
...But, the New Orleans-based Fifth Circuit Court of Appeals, stacked with right-wing ideologues, plays by its own rules, as it recently demonstrated when it set aside a Board ruling that Tesla unlawfully interfered with its employees right to display union insignia at work. And, because an employer may challenge an NLRB ruling in any circuit where it does business, we can expect a lot more NLRB cases to end up at the Fifth Circuit….
The Fifth Circuit simply skipped over the ALJ’s findings that Tesla’s justifications for banning the union t-shirts did not hold up. Instead, the court got hung up on the Board’s ruling that a uniform policy is not an automatic defense to a prohibition on wearing clothing containing a union insignia. Quoting an earlier decision, the court announced, apparently as a matter of law, that a “uniform requirement fosters discipline, promotes uniformity, encourages esprit de corps, and increases readiness and having standardized uniforms encourages the subordination of personal preferences and identities in favor of the overall group mission.” Never mind that Tesla did not assert any of these rationales for its policy.
Justices schedule major cases on deference to federal agencies
[SCOTUSblog, via Naked Capitalism 11-22-2023]
Conservative Judges Are Dismissing Decades of Precedent to Try to Kill the Voting Rights Act
Matt Ford, November 22, 2023 [The New Republic]
...A three-judge panel of Republican appointees held earlier this week that private plaintiffs cannot sue states to enforce a key provision of the landmark law known as Section 2, which imposes a permanent, nationwide ban on racial discrimination in election and voting laws. Judge David Stras, a Trump appointee writing for the 2–1 panel, noted that courts had assumed Section 2 was privately enforceable for “much of the last half-century,” but concluded that a “deeper look” had “revealed that this assumption rests on flimsy footing.”….
Section 2 is enforceable by litigation from the attorney general of the United States. For decades, the courts have also concluded that Section 2 created an implied cause of action—that is, its text implicitly created a right for private parties to bring a lawsuit to enforce it even though it did not explicitly spell it out. The Supreme Court has handed down more than a few rulings since the VRA’s enactment based on this assumption. Congress has also allowed this assumption to persist throughout every reauthorization and amendment….
Bad Facts, Bad Law
Duncan Hosie, November 25, 2023 [The New York Review]
In a recent Supreme Court oral argument about disarming domestic abusers, originalism itself was put to the test….
Earlier this month the Court heard oral argument in United States v. Rahimi, a case that will decide whether Section 922(g)(8) violates the Second Amendment. The Court’s conservative supermajority seemed inclined to uphold the law but struggled to reconcile this outcome with originalism, the theory of constitutional interpretation it has nurtured and championed. At the basis of the Bruen decision was an idea central to originalism as the modern right has defined it—that constitutional meaning “is fixed,” as the majority opinion put it, “according to the understandings of those who ratified it.” Rahimi asks the Court to square that idea with common sense and modern needs….
In 2019 a Texas man named Zackey Rahimi violently assaulted his ex-girlfriend in a parking lot and shot at a witness. The ex-girlfriend, whom Rahimi threatened to kill if she told anyone about the attack, got a protective order that barred him from possessing guns.
Rahimi ignored it. He kept his guns and continued to fire them in public across at least six different incidents. Eventually the police searched his home, where they found guns and a copy of the protective order. He was ultimately convicted of violating Section 922(g)(8). Arguing that the law contravened the Second Amendment, Rahimi challenged his conviction, but the Fifth Circuit, an archconservative federal appellate court that covers Texas, upheld it.
That is where the story would have ended if not for Donald Trump’s overhaul of the federal courts, which he stacked with originalist ideologues. This past March, less than a year after the Supreme Court decided Bruen, a Fifth Circuit panel consisting of two Trump appointees and one Reagan appointee reversed their earlier decision, applying Bruen to strike down Section 922(g)(8). The Biden administration petitioned for review of that decision, and oral argument followed….
Philosophy of government
After the Civil War, Robert E. Lee Couldn’t Run for President, but Trump Can?
Garrett Epps, Washington Monthly, via Naked Capitalism Water Cooler 11-22-2023]
“All five sections of the Fourteenth Amendment can be seen as what must have seemed like a last, desperate attempt to retain power in the hands of the Union and prevent a reborn Confederacy from ruling for the next century. Section Three addressed the prospects of Lee and all those who served the Confederacy. The old Southern leadership, which had enjoyed federal office until 1861, then fought the United States until 1865, was not coming back; it was barred from state or federal office…. Gentle reader, can you seriously imagine that our 19th-century ratifier—an informed, loyal American who had just lived through a brutal war that took more than 600,000 lives for the sole reason that Southern whites would not accept that Abraham Lincoln won the 1860 election—would have understood Section 3 to mean that a traitor couldn’t be a Senator, or a Representative, or a governor, or a state legislator, or for that matter a dog-catcher—but that Robert E. Frickin’ Lee could turn his coat one more time, swear he really would support the Constitution this time, and waltz into the White House? I cannot. This is what philosophers call “self-stultifying”— so self-contradictory that its very utterance undermines the idea of meaning itself.” • This is an excellent article with which I disagree on the main points (and I also don’t like the lack of links at key turning points; for example, that “Democratic newspapers speculated that their party’s strongest presidential nominee in 1868 would be former Confederate General Robert E. Lee” is a bare assertion). First, Epps urges that the phrase “officer of the United States” in Section Three of the Fourteenth Amendment applies to Presidents. I disagree (and some legal scholars agree). Madison writes, in Federalist 68, of the President: “It was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided.” It makes no sense to me that a President, elected by the whole nation, is in the same category (“officer of the United States”) as an appointed official, who is not. Second, in regard to the finding of fact in the Colorado decision: It gives me the creeps that we might rely on decision from a non-elected State District Court judge to determine that Trump is an “insurrectionist.” Insurrection is a crime, and if the Biden adminstration’s Justice Department didn’t charge and convict him, and no special prosecutor did, it’s most likely because neither thought they could make the charge stick. So which ought to be controlling?
What Happens When the Super Rich Are This Selfish? (It Isn’t Pretty
Guido Alfani [New York Times, downwithtyranny.com 11-25-2023]
...we should also consider whether the exceptional resilience of the rich to recent crises has been obtained in such a way as to make society as a whole less resilient— for the rich, protecting their fortunes from crises also involves protecting them from extra taxation, thus stripping public institutions of resources that could have been used for stronger mitigation policies, including those aimed at abating the sufferings (economic or otherwise) of the poorer strata. To some degree, governments compensated for this by expanding the public debt, which raises the question of who will repay it. Given the fact that many Western fiscal systems do not burden their wealthy to the same degree they once did, it seems probable that the bill for the Covid-19 crisis will weigh on the shoulders of the rich to an extremely low degree relative to the burden during past crises.….
The sordid lessons of Kinderläden
[Unherd, via Naked Capitalism 11-25-2023]
The Frankfurt School in many ways embodies this danger, and the Left should not be afraid to say so. Its belief that authoritarianism was caused by sexual inhibitions — and reproduced by the nuclear family — strayed quite far from traditional Marxist understandings of material struggle and physical reality. The School might more usefully have imagined the best way to organise the working classes to lobby for higher wages — rather than trying to re-engineer the sexual expressions of the masses, in the belief that revolutionary change would necessarily follow. Instead, what followed was a major shift in Leftist analysis, which has resulted not in revolutionary change but in identitarian strife.