If one takes corporate media at face value, Donald Trump is all but cancelling people’s passports and stripping US citizens of their citizenship.

Al Jazeera wants you to believe that birthright citizenship is an established constitutional right.

Birthright citizenship refers to a constitutionally protected right that grants automatic US citizenship to babies born in the country.

This is a sweeping generalization that is, like all generalizations, fundamentaly false.

CNN, the Most Busted Name In Fake News, goes even farther, suggesting that birthright citizenship has 150 years of solid US legal and Constitutional tradition.

For one, it clearly states that American citizenship is a birthright for all people who are born on American soil — something that President Donald Trump has announced he wants to end. Not only would this unravel 150 years of American law, it would loosen a significant cornerstone of the Constitution’s interpretation of American identity.

As is typical of factual assertions by CNN, this is simply false.

Donald Trump’s policy objective is clearly stated: he means to defend citizenship not just as a legal status but as an organizing principle for this country.

Citizenship matters for every nation. Citizenship is how people establish not just their own national identity but also the identity of their nation. Citizenship is how people declare their loyalties in this world.

It matters, therefore, that we examine this question of birthright citizenship closely, and give serious credence to all arguments over to whom it should apply.

Correcting The Media…Again

It is hardly newsworthy to say that corporate media got this story wrong—corporate media outlets get so many stories wrong so often it is a wonder these outlets continue to exist.

They do exist, however, and so we need to be especially diligent about what Donald Trump’s Executive Order actually says.

Most importantly, it is a blatant falsehood that Donald Trump proposes to end all birthright citizenship. The text of the Executive Order makes that clear:

Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in the United States: (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.

Fundamentally, a child born with at least one parent who is a lawful permanent resident of the United States is a citizen at birth.

Fundamentally a child born with neither parent a lawful permanent resident of the United States is not a citizen at birth.

So long as one parent is a lawful permanent resident of the United States, any child born in the United States is a citizen of the United States.

Does that sound like a campaign to end birthright citizenship?

Additionally, the Executive Order explicitly precludes interpreting it in such a way as to deny citizenship petitions or preclude people from receiving their otherwise lawful citizenship documents.

Nothing in this order shall be construed to affect the entitlement of other individuals, including children of lawful permanent residents, to obtain documentation of their United States citizenship.

Does this sound like a campaign to deprive people of their lawful citizenship?

Understand that when the media is saying that Donald Trump wants to “end” birthright citizenship, they are blatantly lying to you….again!

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Arguments Are Not Rulings

We do well to also note that most, if not all, of the arguments in favor of universal birthright citizenship rest on the opinions of “legal scholars”—which is to say they do not rest upon actual Supreme Court cases.

These arguments are, at best, “expert opinions”, which are foundationally the lowest quality of evidence there can be—such is the conclusion of medical professionals1, who practice a discipline at least as reliant upon facts and evidence as the law:

Several depictions of the evidence pyramid consider EO as a level of evidence and place it at the bottom of the pyramid as a unique category, or combined with preclinical studies and case reports, implying low validity. However, the term ‘opinion’ is defined in dictionaries as a ‘generally held view’, a ‘belief’ or a ‘judgement formed in the mind about a particular matter’. These definitions are not fully congruent with the definition of evidence as an empirical observation.

I will point out that this article is open to the same challenges—these conclusions are mine, and not a finding of any court nor are they written into any statute. People are welcome to look at my research materials and come to their own conclusions. I provide links and sources for precisely this reason, and I welcome any and all who disagree with me to politely discuss the matter in the comments section below.

Yet in the matter of citizenship, opinions seem to be the dominant mode of argument there is, rather than case law and court rulings.

This is true of the Congressional Research Service when Donald Trump first broached the topic of ending claims by illegal aliens to birthright citizenship for their offspring (emphasis mine)2:

At least since the Supreme Court’s decision in the 1898 case United States v. Wong Kim Ark, the prevailing view has been that all persons born in the United States are constitutionally guaranteed citizenship at birth unless their parents are foreign diplomats, members of occupying foreign forces, or members of Indian tribes.

“Prevailing view” is a consensus opinion, and cannot be taken as unilaterally authoritative (a major reason why I quote sources liberally is to establish that I am faithfully recounting those things which others have said).

To its credit, the Constitution Daily Blog acknowledges the limitations of current case law on the topic and does not presume to be the final word on the citizenship text of the Fourteenth Amendment:

An executive order looking to change the rule would likely be challenged in court. During President Trump’s previous desire to pursue an executive order he also indicated that the case could wind up at the Supreme Court through the appeals process and the court would have to rule on the constitutionality of such an executive order. “While extant legal authority indicates that neither Congress nor the Executive may deny recognition of birthright citizenship based on the immigration status of a person’s parents, the Supreme Court has not firmly settled the issue in the modern era,” the CRS noted in 2018.

When corporate media presumes to present birthright citizenship as a settled political, legal, or constitutional issue in this country, they are again lying.

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What The Supreme Court Has Said: Elk v Wilkins

There are not many Supreme Court cases which touch on the citizenship clause of the Fourteenth Amendment. One of the earliest cases, Elk v Wilkins3, found that a member of a Native American tribe could not claim automatic (birthright) citizenship, as tribal status precluded that claim.

The primary holding in Elk was an affirmation that the phrase “subject to the jurisdiction” was of considerable significant in determining whose offspring is eligible for birthright citizenship (emphasis mine):

This section contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared to be citizens are "all persons born or naturalized in the United States, and subject to the jurisdiction thereof." The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired.

This can be further substantiated by recalling the Congressional debates over the 14th Amendment, upon which I have commended previously.

During those debate, Senator Lyman Turnbull, one of the principal authors of the Fourteenth Amendment, offered this assessment of what the phrase means:

The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means.

The view in Elk, therefore, is that the capacity to endow one’s offspring with American citizenship requires more than being geographically situated within the territory of the United States.

What else would be required? Political jurisidiction, which is to say the parents both owe and acknowledge allegiance to the United States.

Can an illegal alien claim they acknowledge allegiance to the United States? No. They cannot, and the further exploration of the matter in United States v. Wong Kim Ark4 establishes why.

What The Supreme Court Has Said: Wong Kim Ark

Wong Kim Ark is perhaps the most significant citizenship case, and certainly is the one most often cited. Many have argued the case establishes birthright citizenship for all, as Wong, born in the United States of Chinese immigrants permanently domiciled in the United States, was able to claim birthright citizenship even though his parents were legally precluded from obtaining citizenship due to the naturalization laws of the time. However, that is an overbroad reading of the ruling.

To understand Wong Kim Ark, one has to note that the court relied heavily on English common law to “fill in the blanks” of American common law where citizenship was concerned.

Specifically, in citing another case, the Court noted:

"There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. . . . There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history."

Upon this logic, the Court proceeded to mine English case law for insights as to how to adjudicate the interpretation of the Fourteenth Amendment.

The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called "ligealty," "obedience," "faith," or "power" of the King. The principle embraced all persons born within the King's allegiance and subject to his protection. Such allegiance and protection were mutual -- as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem -- and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King's dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King.

The arguments made by many is that this logic holds that everyone born in the United States is a citizen of the United States.

However, this would contradict Elk, as Indians even in 1884 were clearly born within the United States, yet were not found to be citizens of the United States. Wong Kim Ark reconciles itself to Elk by highlighting the somewhat narrow predicate of that case as being the status of members of the various Native American tribes, and then taking a more expansive view of the case.

The decision in Elk v. Wilkins concerned only members of the Indian tribes within the United States, and had no tendency to deny citizenship to children born in the United States of foreign parents of Caucasian, African or Mongolian descent not in the diplomatic service of a foreign country.

The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, "All persons born in the United States" by the addition "and subject to the jurisdiction thereof," would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases -- children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State -- both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country.

Yet does this mean that Elk was overturned? No. Quite the contrary. Wong Kim Ark explicitly upholds Elk, and even if it was not explicit we must still conclude that it was not overturned by virtue of the fact that Congress would in 1924 explicitly grant citizenship to all members of Native American tribes5.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all non-citizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States: Provided, That the granting of such citizenship shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property.

Had Elk been overturned, the 1924 citizenship act would have been superfluous.

However, we need to consider closely the text of the Wong Kim Ark ruling, for it contains an important exclusion that has been almost universally overlooked: “children born of alien enemies”. This exclusion has an important bearing on the proper context of “subject to the jurisdiction”.

As I articulated in my previous treatment of this topic, the phrase “subject to the jurisdiction” is properly apprehended as "owing obedience or allegiance to the power or dominion of the jurisdiction of the United States."

This view is supported by the English common law reasonings referenced in Wong Kim Ark, in its reference to Sir William Blackstone’s definition of “subjectship” (that being the English analog to American citizenship, emphasis mine):

Two things usually concur to create citizenship: first, birth locally within the dominions of the sovereign, and secondly, birth within the protection and obedience, or, in other words, within the allegiance of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also, at his birth, derive protection from, and consequently owe obedience or allegiance to, the sovereign, as such, de facto.

Which brings us back to the exclusion in Wong Kim Ark of “children born of alien enemies”.

An “enemy alien” is, within international law, understood to be a non-native where there is a conflict with a nation’s government6:

In customary international law, an enemy alien is any native, citizen, denizen or subject of any foreign nation or government with which a domestic nation or government is in conflict and who is liable to be apprehended, restrained, secured and removed.

Broadly, within the US aliens are delineated by the conditions of their entry:

1) n. a person who is not a citizen of the country. 2) in the United States any person born in another country to parents who are not American and who has not become a naturalized citizen. There are resident aliens officially permitted to live in the country and illegal aliens who have sneaked into the country or stayed beyond the time allowed on a visa.

As an operation of law, any person who has illegally entered any country clearly has a conflict with that country. The very act of illegal entry is a defiance of the laws of that country, which is conflict by definition.

While we might demur from referencing illegal aliens as “enemy aliens”, owing to the rather greater pejorative effect of “enemy” relative to “illegal”, can we realistically claim that people who are in the United States illegally are not in conflict with the government of the United States?

I do not see how we can.

That there is a base level of conflict with the US government which arises from the illegal alien’s act of illegal entry, and their remaining in the United States in defiance of US law, by the very clear and explicit reasoning of Wong Kim Ark means that illegal aliens cannot endow their offspring with US citizenship.

My assertion from my earlier treatment still stands:

As a matter of law and of logic, if the illegal alien wishes to be subject to the laws of the United States, the first step he must take must necessarily be to remove himself from the United States.

Far from establishing birthright citizenship for the children of illegal aliens, a close reading of Wong Kim Ark shows that it unambiguously denies it—because illegal aliens do not fall under the heading “subject to the jurisdiction”.

The importance of that phrase ironically illustrates why the third case cited in birthright citizenship cases, Plyler v Doe7, is in fact wholly irrelevant.

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What The Supreme Court Has Said: Plyler v Doe

Plyler v Doe is significant not for upholding the principle of birthright citizenship—which it does not even address—but for affirming that fundamental rights are not conditioned upon citizenship.

While the question of jurisdiction is common to both Plyler and Wong Kim Ark, the nature of that jurisidiction is subtly different, as Plyler relies on the Equal Protection clause rather than the citizenship clause of the 14th Amendment.

Specifically, Plyler held that illegal aliens are indeed “within the jurisdiction” of the United States.

Appellants seek to distinguish our prior cases, emphasizing that the Equal Protection Clause directs a State to afford its protection to persons within its jurisdiction, while the Due Process Clauses of the Fifth and Fourteenth Amendments contain no such assertedly limiting phrase. In appellants' view, persons who have entered the United States illegally are not "within the jurisdiction" of a State even if they are present within a State's boundaries and subject to its laws. Neither our cases nor the logic of the Fourteenth Amendment support that constricting construction of the phrase "within its jurisdiction."

Significant here is the variation in wording between the Citizenship Clause and the Equal Protection Clause, which reads:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Why should we draw a fine distinction between the phrase “subject to the jurisdiction” and “within the jurisdiction”? We should do so because different words have different meanings, and thus convey different ramifications in the whole of the text.

Specifically, “within” stands in the Equal Protection Clause as a preposition, with the subsequent phrase “within the jurisdiction” serving as adjective to “person.”

As a preposition, “within” indicates either enclosure or containment.

As was obvious in Elk, a person can be “within” the jurisdiction of the United States and not be “subject” to the jurisdiction of the United States. As both Elk and Wong Kim Ark make clear, the phrasing “subject to the jurisdiction” is significant when apprehending questions of citizenship, and in particular birthright citizenship.

It is a curious departure from logic, therefore, to suggest that Plyler establishes that there is no substantive difference between the two phrases. Plyler makes no such assertion.

What Plyler does reaffirm—and rightly, I should add—that fundamental rights are not conditioned upon citizenship. Fundamental rights follow personhood, not citizenship, and Plyler dispenses with any intimation that the illegal alien is not a person.

Whatever his status under the immigration laws, an alien is surely a "person" in any ordinary sense of that term.

However, citizenship is not a fundamental right, but one that is under the explicit regulation and purview of Congress, as Article 1 Section 8 of the Constitution makes plain:

To establish a uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

While the illegal alien can claim and should be afforded the equal protection of the laws, that equal protection cannot ever extend to the granting of citizenship, either to the illegal alien or their offspring. To argue otherwise is to take away from the Congress the legislative power the Constitution has expressly accorded it.

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What The Law Says

While people can in good conscience and good faith debate what the law should say, or what government policy should be, there is no room for debate about what the law in fact does say. Nor should we ever lose sight of the reality that immigration is always a question of law and not “justice”.

There can be no debate that illegal entry by an alien is a crime under US law8. It is a crime for which enhanced penalties are assessed when there is repeat offense9.

There can be no debate that the law delegates to the President broad authority to bar aliens from entering the United States10.

There can be no debate that the law states that illegal aliens are to be deported11.

Every person in this country illegally is, by law, subject to deportation. That is what the law says as of this writing.

Whether or not these laws are good or bad policy does not alter the reality that these laws are unambiguously Constitutional. Congress is expressly given the power by the Constitution to enact these laws.

Congress has likewise been given the power by the Constitution to change these laws. People have an absolute inalienable right under the First Amendment to petition the Congress to change these laws—both to make them less stringent and to make them more so. I will go so far as to say that those who wish the law were other than what it is have an affirmative civic duty to petition the Congress and otherwise campaign for whatever changes to the law they wish to see enacted.

This is the reality of those who enter the US illegally and attempt to remain in the US in defiance of these laws: they are, by their actions, demanding a nullification of these laws. Those who facilitate illegal entry are, by their actions, demanding a nullification of these laws.

While there is within libertarian thought a tendency to support the concept of nullification, and certainly even John Locke in his Two Treatises on Government12 articulated the principle that the individual of his own volition withdraw his consent to be governed, for nullification to stand as a matter of civic policy it must be defensible to the larger civic society.

Can we defend, as a matter of policy, allowing the illegal alien to defy the law without consequence?

If we do, we are inviting lawlessness, for we are saying the law has no meaning. Worse, we are inviting the chaos of saying ad hoc that some laws should be obeyed and other laws should be ignored.

Are we prepared to live in that sort of society? Are we willing to live in that sort of society?

Can we defend, as a matter of policy, rewarding the illegal alien by granting their offspring the citizenship the legal immigrant strives often for years to achieve simply by virtue of being born within the territory of the United States?

If we do, we are in effect saying there is no virtue in obeying the law. Worse, we are making a mockery of the efforts of legal immigrants who work in good faith to achieve citizenship in the manner prescribed by law, regardless of whether that manner is fit or fair.

Are we prepared to casually dismiss and demean people thus?

Can we defend, as a matter of policy, making the offspring of illegal aliens citizens, and thus ineligible for deportation, while at the same time deporting their illegal alien parents?

If we do, we are institutionalizing family separation. Conversely, if we reject family separation while granting the offspring of illegal aliens citizenship, we nullify very nearly the whole of immigration law, and the Congress’ Constitutional authority to enact immigration law.

Are we prepared to either institutionalize family cruelty on the one hand, or anarchy on the other?

Unless and until we are as a society prepared to accept the consequences of the blithe tolerance of illegal immigration, we do our society no favors by granting to illegal aliens the capacity to endow their offspring with citizenship.

Citizenship is not a fundamental right, and we should not make the mistake of treating it as one.

Scratch that. Slatterns, thots and whores are probably considered more respectable than fact checkers.

Huffpost gives us yet another reason to hold fact checkers in low regard with a propaganda piece “fact checking” Lara Trump’s recent comments on Fox News regading the Palisades Fire.

“These people cannot help themselves,” President-elect Donald Trump’s daughter-in-law said of Democrats. “You just referenced how no one wants to take any blame for anything in California. Instead, they are blaming climate change.”

“I would really love for someone out there to explain to me how climate change is the reason that the reservoirs were dry, that there was no water in the fire hydrants,” she added.

Huffpost staked its claim straight away, making a clear implication that Lara Trump was simply lying—and contradicted itself in the process (emphasis mine).

California’s reservoirs were not dry, though firefighters did encounter issues with water supply to hydrants due to high demand. The catastrophic wildfires, driven by intense winds and tinder-dry conditions, erupted after a critically dry period — Los Angeles recorded just 0.8 mm of rain from July 1 to January. As California suffered through one of its hottest summers on record, vegetation that had proliferated during an intensely wet spell dried out to create an abundance of kindling.

Huffpost has an even more basic problem, however: the rest of corporate media has already reported the same facts Lara Trump was referencing.

The mission of All Facts Matter is to push back against exactly this sort of propaganda. Without further ado, let’s explore all the ways both Huffpost and its “experts” are engaging in epic stupidity.

The Santa Ynez Reservoir WAS Dry

The brutal—and potentially criminal—reality is that the Santa Ynez reservoir in the Pacific Palisades community most assuredly was dry, and it has been reported by the Los Angeles Times as such.

While we should not presume too much on the intellect of politicians, surely even the Los Angeles City Council is not so dumb as to want “transparency” on a full reservoir.

More embarrassingly for Huffpost, however, is that the reservoir has been empty for months—and the LA City Council would like to know why.

Councilmember Traci Park proposed that the L.A. Department of Water and Power present “its root cause analysis of the water pressure challenges that resulted in lower water pressure and dry hydrants,” in some areas of Pacific Palisades, as well as recommendations for addressing the issues. In the same motion, Park urged the council to ask the utility to explain why the Santa Ynez Reservoir in Pacific Palisades has been out of commission for months.

The current satellite image of the reservoir on Google Maps as of this writing shows that the reservoir is indeed empty.

Former Los Angeles Department of Water and Power general manager Martin Adams has stated that the reservoir’s 117 million gallon capacity would have made a difference in fighting the Palisades fire.

DWP officials have acknowledged that had the reservoir been up and running as the Palisades fire broke out Jan. 7, it would have augmented water pressure. Former DWP general manager Martin Adams told The Times that the reservoir would have helped, but would not have been a panacea to a system that was strained by tremendous demand.

“It might have deferred the inevitable, but without doing calculations, its hard to know by how much,” Adams said. “It wouldn’t have lasted forever and would not have been a fix all.”

While one can argue that “climate change” is the underlying reason for the hills in and around Pacific Palisades were sufficiently dry as to make for perfect tinder to spread a wildfire, that explanation does not even begin to address why a crucial reservoir was completely empty when the fire broke out January 7.

We should pause to acknowledge that Adams is correct that one full reservoir would not have been a complete solution to the issues that plagued the firefighting efforts particularly in the earliest moments of the Palisades Fire. However, Adams’ comments highlight the reality that eyewitness accounts indicate that government incompetence was on display from the very beginning.

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Slow Reponse Doomed Pacific Palisades

One does not need to be either a climate scientist or even a chemist to understand that small fire which is quickly extinguished does not become a big fire.

An eyewitness to the Palisades Fire, former US Attorney Michel Valentine, who claims to have seen the initial smoke plume from when the fire first broke out has gone on record slamming Mayor Karen Bass and LAFD Fire Chief Kristin Crowley for a slow response when the Palisades fire was small.

Valentine — who said he lives at the top of the Pacific Palisades, next to the ridge line where the fire broke out — described seeing the initial plume of smoke grow rapidly in size last Tuesday. The former federal attorney said his wife called 911, but it took nearly 45 minutes for a helicopter to respond and dump water on the fire.

“I have no idea why that is,” Valentine said, responding to why it took so long to respond. “It could have been confined. It wouldn’t have touched any of the homes.”

“You’re talking to somebody that’s been up in this community for 40 years, and I’ve seen fires. I’ve seen fires during those 40 years, and there’s always been a good response. I don’t know what happened this time,” he added.

While eyewitness testimony can be dangerous and misleading, one would certainly hope that a former US Attorney would rank among the more meticulous and mindful of witnesses. If Valentine’s time estimate between his wife calling 911 and a helicopter dumping water on the Palisades Fire when it was still just a brush fire is correct, the City of Los Angeles and the Los Angeles Fire Department missed the opportunity to extinguish the blaze while it was still small and manageable.

Had that firefighting helicopter dropped its load of water on the fire within 10 minutes instead of 45, might the fire have been put out quickly, preventing it from ever getting as big as it has since? While we don’t know that for certain, we cannot rule out that possibility.

While one can argue that “climate change” is the underlying reason for the hills in and around Pacific Palisades were sufficiently dry as to make for perfect tinder to spread a wildfire, that explanation does not even begin to address why it took 45 minutes for the LAFD to respond to a 911 call reporting the beginning of the Palisades Fire.

The Fire Hydrants DID Run Dry

The Los Angeles Times also backs up Lara Trump’s second factual claim—that the fire hydrants ran dry.

While journalistic standards have indeed deteroriated over the years, surely we can safely assume that the editors of the Los Angeles Times understand what the phrase “why hydrants ran dry” means—that the fire hydrants in the Pacific Palisades area suffered from low water and consequently low water pressure.

Former DWP General Manager Martin Adams again tells the LA Times why this happened: the water system simply wasn’t designed to fight a fire of the size of the Palisades fire.

The water system that supplies neighborhoods simply doesn’t have the capacity to deliver such large volumes of water over several hours, said Martin Adams, former general manager of the Los Angeles Department of Water and Power.

“The system has never been designed to fight a wildfire that then envelops a community,” Adams said in an interview with The Times.

LAFD compensates for the limitations of the water system by using air drops of water and fire retardant on wildfires.

Alas for Pacific Palisades, strong Santa Ana winds grounded the aircraft that would have been used to fight the blaze, forcing the fire department to rely on the local water system as well as tanker trucks dispatched to the fire’s front lines.

“AHA!” exclaims the climate change alarmist, “that proves that this fire is solely the result of climate change, and there was nothing LAFD could have done differently!”

Unfortunately for our hypothetical smug but woke climate change alarmist, this line of reasoning also falls flat.

The strongest Santa Ana winds on record occurred on December 4, 2011—just over thirteen years ago. The LAFD has had thirteen years knowing that Santa Ana winds can reach speeds of 97mph, which is to say LAFD has had thirteen years of knowing that Santa Ana winds are capable of grounding firefighting aircraft.

The LAFD has had thirteen years to have alternate and contingency plans developed for fighting fires during extreme Santa Ana wind conditions. That the record is thirteen years old means the LAFD knew—or should have known—that the worst case scenario was Santa Ana winds of at least 97 mph.

Even if one were to concede the point that man-made climate change is a real thing—which I do not—that the LAFD was unprepared for Santa Ana winds which were not at record levels is a failure of planning which cannot be attributed to climate change, nor to anything else but the corrupt politics of Los Angeles City Hall.

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“Experts” Are “Fact Checking” Lara Trump Without Actual Facts

Huffpost’s use of “experts” to “fact check” Lara Trump should be utterly humiliating to that publication, because said “experts” don’t even have facts with which to impugn Lara Trump.

Faith Kearns of the University of Arizona thinks that all of the environmental challenges surrounding the Palisades Fire were new and had never before been encountered.

“This is a really complex, complicated and emergent issue that just hasn’t been on the radar for mostly anyone, and so I just don’t think that there is individual blame to go around at all,” Faith Kearns, director of research communications at Arizona State University’s Arizona Water Initiative, told NBC News of the water management issue.

Excuse me? Wildfires haven’t been on anyone’s radar in California?

Six of the ten most destructive wildfires in California history have occurred in the past ten years. If wildfire response planning hasn’t been “on the radar for mostly anyone” in California, I for one would like to know why in the Nine Circles Of Hell not?

Wildfires are not an “emergent issue” in California.

Dry weather and drought are not an “emergent issue” in California.

Dry weather and drought in winter are not an “emergent issue” in Los Angeles County. While most of the county is currently rated by the US Drought Monitor as under “severe drought”, from 2015 through the beginning of 2017 some 80% of the county was under the worst rating of “Exceptional Drought”

Los Angeles has endured worse drought conditions than what it is currently experiencing and somehow managed to avoid being reduced to ashes—so why is this relatively more moderate drought proving to be so much more devastating?

Regardless of what explanation one wishes to put forward for the dry weather and the drought, the recent history of California weather is that there are dry seasons and there are droughts. Both the Los Angeles Fire Department and the Department of Water and Power have a political and moral obligation at the very least to develop plans for responding to wildfires, and a political and moral obligation to take into account any recent weather extremes to ensure they are ready to meet the widest array of potential conditions.

We know this to be so because the Federal Emergency Management Agency’s Comprehensive Preparedness Guide 101 identifies addressing all hazards and threats as a key element of the planning process:

1.1.9. PLANNING SHOULD CONSIDER ALL HAZARDS AND THREATS

Considering all threats and hazards when addressing emergency functions helps identify essential, common tasks and those responsible for accomplishing them. Planners can address common operational functions in their base plans instead of having unique plans for every type of hazard or threat. For example, floods, wildfires and hazardous material releases may lead a jurisdiction to issue evacuation orders and open shelters. Even though each hazard’s characteristics (e.g., speed of onset, size of the affected area) are different, the general tasks for conducting evacuation and shelter operations are the same.

FEMA even acknowledges the imperative of analytical methods and logical thought processes during the disaster planning process.

1.1.8. PLANNING SHOULD USE ANALYTICAL APPROACHES TO ADDRESS UNCERTAINTY

By following a set of logical steps that includes gathering and analyzing information, determining objectives and developing options to achieve the objectives, planning allows a jurisdiction or regional response structure to work through complex situations. Planning helps a jurisdiction identify the resources at its disposal to perform required tasks and achieve desired outcomes and target levels of performance. Using this deliberative process to consider and address the diverse roles, responsibilities, authorities and capabilities of various partner organizations improves unity of effort when incidents occur. Rather than specifying every detail of how to achieve the objective, an effective plan structures thinking and supports insight, creativity and initiative in the face of an uncertain and fluid environment. While using a prescribed planning process does not guarantee success, inadequate plans and insufficient planning are proven contributors to failure.

Let me repeat the final sentence of that paragraph for emphasis: “While using a prescribed planning process does not guarantee success, inadequate plans and insufficient planning are proven contributors to failure.”

Again, even if one were to concede that California’s recent weather conditions were a consequence of amorphous “climate change”, the entire point of disaster planning and disaster preparedness is to take into account that such weather conditions are possible regardless of the causes behind those conditions. The reason even FEMA gets behind logical, analytical, and withal detailed planning is because the tried and trite cliche of “failing to plan is planning to fail” happens to be true.

Did the LAFD consider that they might not be able to deploy aircraft to drop water and fire retardant of fires during strong Santa Ana winds? Apparently they did not.

Did the LAFD consider that slow response times early in a fire event allow a fire to grow faster and larger than it might otherwise? Apparently they did not.

We know the LAFD considered the option of pre-positioning firefighters and fire engines in the Palisades area and elsewhere. We know this because they chose not to do so.

Fire officials chose not to order the firefighters to remain on duty for a second shift last Tuesday as the winds were building — which would have doubled the personnel on hand — and staffed just five of more than 40 engines that are available to aid in battling wildfires, according to the records obtained by The Times, as well as interviews with LAFD officials and former chiefs with knowledge of city operations.

Managerial decisions of this sort are many things, including possibly idiotic and arguably insane, but the one thing they most assuredly are not is the result of “climate change”.

Even in California people’s brains do not work differently just because the climate is presumably changing—although within LA City Hall and the LAFD that may be because people’s brains simply do not work, period.

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“Climate Change” Is Not An Excuse

The fundamental problem with the entire “oh, it’s climate change” narrative is that the very nature of civic planning and city governance means that narrative is permenantly disqualified from ever being a plausible explanation for catastrophes.

The devilish detail which becomes the Catch-22 for the climate change alarmist is that if the climate change alarmist can think to blame climate change, the climate change alarmist has already assumed the climate is changing.

If the Democrats who run California and its many cities are that persuaded of climate change, then their obligation is to plan for responding to events amidst a changing climate. Even FEMA accepts this point as part of its disaster planning best practices.

I have written multiple disaster recovery and business continuity plans during my career as a Voice and Data Network Engineer. I have had to activate portions of some of those plans during various regional and even nationwide network outages.

I can attest from lengthy professional experience (25 years) in IT of the imperative of being analytical, methodical, and logical in disaster preparedness and disaster planning. I know first hand the importance of being disciplined and thorough in that planning process.

Even if one accepts the assertions of climate change alarmism as real, the obligation of the LAFD and the City of Los Angeles is to develop wildfire response plans as well as other disaster response plans which take that climate change into account.

It is clear that the current wildfire response plans of the LAFD are inadequate. Los Angeles is by no means experiencing the worst dry weather it has ever had, and yet the LAFD was simply not prepared to respond to the fires when they occurred.

Lack of preparation is not “climate change”, it’s “failure to plan.”

It is clear that the communication and coordination among city departments within Los Angeles are inadequate. The Santa Ynez reservoir is a strategically important reservoir for firefighting, yet apparently no one bothered to have a workaround for when the reservoir was unavailable, even though the reservoir has been offline for months.

Lack of communication and coordination are not “climate change”. They are “planning to fail.”

Contrary to the abysmal propaganda of HuffPost, Lara Trump is spot on with her question. I, too, would like to hear how climate change is the reason that the Santa Ynez Reservoir was dry, and the reason that there was no water in the fire hydrants.

Corporate media needs to stop pretending that “climate change” is a legitimate explanation for failures of government. Even if climate change were an actual ongoing phenomenon, it is still the duty of government to adapt, to plan, and to prepare accordingly. It is still the duty of government to take whatever they perceive as the trajectory for current climatological models and its impact on natural disasters such as wildfires, and plan accordingly.

The insipid inanity of corporate media and California Democrats defaulting to cries of “climate change” over the Los Angeles wildfires is that such cries are by definition an admission of failing to plan. Huffpost and all its array of “experts” are admitting that the State of California and the City of Los Angeles planned to fail—and succeeded in doing so.

It takes an “expert” to be this dumb.

Last week, DeSantis signed into law HB1365 banning unauthorized public camping and public sleeping.

Today, Governor Ron DeSantis signed HB 1365 to keep Florida’s streets safe. This legislation requires counties to ensure that homeless individuals receive the mental health and drug addiction services they need while residing in a designated location off our public streets, prioritizing public safety.

“Florida will not allow homeless encampments to intrude on its citizens or undermine their quality of life like we see in states like New York and California,” said Governor Ron DeSantis. “The legislation I signed today upholds our commitment to law and order while also ensuring homeless individuals have the resources they need to get back on their feet.”

This past Monday (March 25), Governor DeSantis signed HB3, which prohibits children under the age of 14 from having accounts on most social media.

Florida Republican Governor Ron DeSantis signed a bill into law banning children under age 14 from having their own social media accounts on Monday, according to a news release from the governor’s office.

Fourteen and 15-years-old will be allowed to have accounts with parental consent.

As might be expected, both bills have attracted their share of opposition.

Yet a question should be asked of both bills: Do they at least attempt to move towards a real solution that is enforceable, sustainable, and respectful of people’s inalienable rights?

Alternatively, should Ron DeSantis be celebrated or pilloried for not vetoing these particular pieces of legislation? Is there a demarcation line where the perfect becomes the enemy of the good, and are these two laws on the correct side of it?

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On HB1365, critics have said Florida isn’t allocating enough funding to provide the resources mandated by the bill.

"We're going to need so much more funding if we're going to build up these resources," said Megan Sarmento, an outreach program manager for the Florida Harm Reduction Collective in Tampa. "Even now, how the system is, we are finding people on the streets and are unable to link them to care because of the lack of resources, including housing and detox."

Others assert that HB1365 unfairly targets both the homeless and communities struggling to address the challenges presented by homelessness.

Critics have said the legislation unfairly targets a vulnerable population and places limits on municipalities struggling to deal with their homeless population. The measure has no penalties for those living on the streets, but it allows local residents, businesses and the state attorney general to sue local governments that don’t follow the restrictions. 

Laws such as HB1365 have been enacted by multiple states, even though critics such as the National Homelessness Law Center challenge both the constitutionality and the propriety of such laws, arguing in a 2021 study that they “criminalize homelessness.”1

Laws that criminalize homelessness do not solve the underlying causes of homelessness. Punishing an unhoused person for sleeping outdoors does not obviate their need to sleep nor does it create a safe place for them to sleep indoors. Instead, criminalization exacerbates a person’s homelessness, often by creating additional barriers to housing and employment. Additionally, whether at the state- or local- level, enforcing criminal statutes is expensive and diverts resources that could instead be spent to solve homelessness.

The study also argues that bans on public camping merely shuffle the homeless population around without fundamentally addressing their needs for housing.

Camping bans are frequently enforced as an excuse to conduct sweeps of homeless encampments. These sweeps can result in arrests and the destruction of a person’s personal property, including IDs and personal documents, medicine and medical devices, and other crucial items. Enforcement of a camping ban does not suddenly result in a person experiencing homelessness having a place to live. Instead, it unnecessarily displaces a person experiencing homelessness to another public place, where they might find themselves at risk of subsequent enforcement.

Others have called the law’s mandate for municipalities to designate spaces where public camping is permissible as calling for internment camps for the homeless.

Critics, meantime, have said the legislation will create forced internment camps, shoving homeless people into fenced villages where they will be neither seen nor heard.

"When they told me about this law, I went and told everybody," [Stephanie] Bennett said. "I was like, 'Yo, they're trying to pass a law where they're going to make it illegal for us to put our tents up. We're not going to be able to have tents, and they're going to force us into their camps.' "

DeSantis and other proponents of the legislation defend the law as protecting communities’ “quality of life”.

DeSantis said the law was Florida's way of preventing cities from looking like San Francisco, a city he has criticized for its "leftist policies" and for allowing parks and sidewalks "to be overwhelmed with tent cities and homeless encampments."

"These are difficult issues, but you should not be accosted by a homeless like we see," DeSantis said at Wednesday's news conference. "You should be able to walk down the street and live your life."

Florida state Representative Sam Garrison similarly spoke of homelessness overwhelming cities elsewhere, and argues the legislation is a way to prevent such outcomes.

Rep. Garrison described “great cities” elsewhere “brought to their knees” by the homeless problem, which assails “civic pride” in those municipalities that have “embraced comfortable inaction.”

We should note that in liberal states such as California, there is a growing sense that the government programs which aim to provide homeless individuals with resources such as mental health treatment and substance abuse rehabilitation are costing far too much and delivering far too little.

While voters have repeatedly named homelessness as a top issue in California, some are alarmed with the looming multibillion-dollar budget deficit and growing frustrated with Newsom's administration spending billions to get people off the streets with little dramatic change. Brian Sobel, a political analyst, said Californians are experiencing "bond fatigues" after years of approving expensive ballot measures. The fact that the bond within the proposition would eventually cost upward $14 billion because of interests could have deterred voters from supporting it.

"People are waking up to the fact that we're just incurring more and more debt and we don't see a discernible difference in the quality of life," Sobel said. "Because money's not solving the problem in the eyes of Californians, they're getting more and more reluctant to pass propositions."

When voters are increasingly reluctant to pass propositions such as California’s recent Proposition 1, which specifically addresses the mental health and drug addiction needs of the homeless, the question naturally arises as to what alternatives might exist to Florida’s HB1365.

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When it comes to issues such as homelessness, I am compelled to admit that I have no answers, and ultimately can reach no conclusions about the wisdom or unwisdom of anti-camping laws such as HB1365.

Even in California, voters are in broad agreement that homeless encampments present significant issues of public health and public safety, particularly with the prevalence of fentanyl and other drugs within those encampments.

Mr. Newsom made homelessness a signature priority when he first became governor in 2019. Public concern intensified during the pandemic as downtown tent camps spread in Los Angeles, San Francisco and other cities that had been emptied by lockdowns.

California’s Democratic leadership has been under intense pressure to remove the camps, even as soaring housing costs and an influx of fentanyl have exacerbated homelessness in cities. Proposition 1 was crafted to target one of the thorniest aspects of the problem: severe mental illness and addiction.

At the same time, laws which target specific demographics, such as the homeless population, must be viewed skeptically with regards to their Constitutionality. Even the homeless are still guaranteed due process of law by the Fifth Amendment and the equal protection of the laws by the Fourteenth. Regardless of why the homeless are homeless, they still have all the same inalienable rights and civil liberties as the rest of the population. Do camping bans intrude on those rights?

As a matter of simple logic, the argument made by the National Homelessness Law Center that camping bans merely shuffles the homeless around in an endless game of human “whack-a-mole” is difficult to refute. The homeless by definition have no place of their own to sleep, and bans on public camping functionally compel them to choose either to seek a space in a homeless shelter or violate the ban on public camping. As HB1365’s own provisions highlight, in many if not all communities there are not enough beds in the available homeless shelters to house the entire homeless population, which means even in the best case scenario at least some homeless individuals have little choice but to violate a ban on public camping.

Even at that, HB1365 also acknowledges that some communities are going to be hard pressed to provide the designated public camping spaces allowed by the bill, along with the security, sanitation, and access to resources required by the bill for such spaces, and thus communities are allowed to exempt themselves from some of the standards laid out in the legislation.

A fiscally constrained county is exempt from the requirement to establish and maintain minimum standards and procedures under subparagraphs (b)1.-3. if the governing board of the county makes a finding that compliance with such requirements would result in a financial hardship.

Yet the problems and challenges of homelessness remain. The mental health issues among the homeless remain. The substance abuse issues among the homeless remain. The sanitation and public health issues of homeless encampments remain.

Whether one views these issues from the perspective of the broader community and its desire to maintain a certain “quality of life”, or from the perspective of the homeless who are in need of a helping hand, one thing seems clear: local and state governments especially do not have the option of simply doing nothing.

What then should government do? Must the solution be more social safety net funding in the manner of California’s Proposition 1? Are camping bans a necessary first step towards a resolution instead?

There is fault to be found with both approaches—so which approach it the “right” approach?

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A similar conundrum arises when we look at Florida’s new legislation—HB3, titled “Online Protection for Minors” prohibiting minors under the age of 14 from having their own social media accounts.

(2)(a) A social media platform shall prohibit a minor who is younger than 14 years of age from entering into a contract with a social media platform to become an account holder.

The bill also requires social media platforms to terminate the accounts of minors under the age of 14.

The bill is not without some teeth. Social media platforms which do not comply could be sued and face fines of up to $50,000 per violation.

The bill, HB3, also directs social media companies to delete the existing accounts of those who are under 14. Companies that fail to do so could be sued on behalf of the child who creates an account on the platform. The minor could be awarded up to $10,000 in damages, according to the bill. Companies found to be in violation of the law would also be liable for up to $50,000 per violation, as well as attorney’s fees and court costs.

Intriguingly, DeSantis vetoed an earlier version of the same legislation, asserting that bill, HB1, violated the rights of adult social media users.

That DeSantis would veto a bill that ostensibly set out to do the same thing alone illustrates that there is a measure of controversy to such legislation.

For DeSantis’ Democratic opponents in the legislature, the bill represents a measure of legislative overreach, stepping into domains arguably reserved for parental rights and potentially creating free speech concerns.

“HB3’s sweeping prohibition of youth from social media runs contrary to a Supreme Court precedent and tells Florida families how to parent,” said Rep. Anna Eskamani, D-Orlando, in a prepared statement in response to the bill signing.

“Though I agree more needs to be done in protecting our youth on social media, this bill goes too far in taking away parents' rights and banning social media usage -- and thus First Amendment Rights -- for young Floridians. Instead of banning social media access, it would be better to ensure improved parental oversight tools, improved access to data to stop bad actors, alongside major investments in Florida’s mental health systems and programs,” she said.

It is worth noting that even those Florida legislators opposed to HB3 conceded that social media use by minors is an issue that needs to be addressed.

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That there are serious concerns surrounding use of social media by minors is indisputable.

We should not overlook a growing body of evidence that indicates social media use by minors is actually damaging their emotional health.

In January, Mark Zuckerberg, CEO of Facebook’s parent company Meta, appeared at a congressional hearing to answer questions about how social media potentially harms children. Zuckerberg opened by saying: “The existing body of scientific work has not shown a causal link between using social media and young people having worse mental health.”

But many social scientists would disagree with that statement. In recent years, studies have started to show a causal link between teen social media use and reduced well-being or mood disorders, chiefly depression and anxiety.

At the same time, social media use by children has been on the rise for a number of years. A 2022 survey showed that teenagers were spending as many as 8 hours every day on social media, a full hour more on average than in 2019.

The survey, published by the nonprofit research organization Common Sense Media, found that overall screen use among teens and tweens increased by 17 percent from 2019 to 2021 — growing more rapidly than in the four years prior. On average, daily screen use went up among tweens (ages 8 to 12) to five hours and 33 minutes from four hours and 44 minutes, and to eight hours and 39 minutes from seven hours and 22 minutes for teens (ages 13 to 18).

If social media is harmful to minors and minors are using social media more and more…it is safe to say there is a problem here!

Yet there is also the First Amendment, and its protections of Free Speech. Given that Free Speech is a moral imperative, and it because of the importance of Free Speech that I oppose the legislation being advanced through Congress to ban TikTok, that especially should not go unnoticed.

If banning a social media platform circumscribes Free Speech, how does banning users en masse not also circumscribe Free Speech. Certainly banning individual users is censorious and circumscribes an individual’s right to Free Speech, as I myself experienced during my ban from LinkedIn.

Is it right to deprive minors of a facility for Free Speech and Free Association, just because they are minors? Does the First Amendment render all such legislative attempts null and voice?

Do minors, being minors, even have a true capacity to exercise a right of Free Speech? As minors, they cannot give legal consent, and surely that means also they cannot consent to whatever consequences might arise from their exercise of Free Speech on social media. If they are immune to the responsibility arising from Free Speech, have they an inalienable right to Free Speech irrespective of their minority?

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As with Florida’s anti-camping legislation, I am very deliberately not reaching a final conclusion about the wisdom or the propriety of HB3.

Rather, here I am more concerned with a not-so-abstract question regarding both bills: What is the alternative?

The one thing that is absent in the media coverage of both pieces of legislation signed by Ron DeSantis is the articulation of any discrete alternatives proposed by the opponents to the respective bills.

It is neither a disparagement of either the bills themselves or the various criticisms made of the bills to acknowledge that the bills seek to address real issues that affect communities across Florida. It is facile and even a tad disingenuous to say that something needs to be done about the homeless, and something needs to be done to address the risks and dangers social media poses for children.

Yet to say “something needs to be done” about such issues largely reduces from the abstract to a practical “what specifically needs to be done?”

That is a question for which the opponents to these particular pieces of legislation seem not to have crafted an answer. Certainly that answer is not forthcoming in social media.

Such answers are, I submit, a glaring absence from much of the public debate about a great many issues facing both the country and the world today.

It is easy to say “this is wrong”, or “this law is wrong,” and if we truly believe that a policy or a law is wrong we absolutely should step up and say so. However, when we do say so we should at least put in a little time contemplating and then advocating for the specific solutions we believe are the right approach.

It was in furtherance of having that “new and improved” solution to an issue that I wrote back in 2022 how the Federal Reserve should be combating Consumer Price Inflation.

If we wish things to improve in this country, or globally, we have to look beyond the the problems everyone faces, and gives some space and articulation to crafting alternative solutions. We need to grapple with the specifics of policy, and with the sometimes unsightly “sausage making” that goes into the crafting of legislation at all levels of government.

I will not conclude here whether HB1365 or HB3 are good or bad pieces of legislation. I will acknowledge that they are addressing real issues that need real solutions. Even if the bills should prove to be heading in an exact wrong direction, they still have the somewhat saving grace of confronting genuine social issues head on.

For any who find issue with either HB1365 or HB3, or indeed any act of a legislature addressing any genuine social ill, a simple question which deserves an hopefully simple answer: What is your alternative?

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For this reason, the House of Representatives last Wednesday passed—on a surprisingly bipartisan basis—HR 7521: Protecting Americans from Foreign Adversary Controlled Applications Act. Behind that rubric of “foreign adversary controlled applications” lies a single application: the social media platform TikTok.

The House voted Wednesday to pass legislation that could ban TikTok in the U.S. as Republicans and Democrats alike sound the alarm that the popular video-sharing app, owned by a China-based company, is a national security threat.

The vote was 352-65, with one member, Rep. Jasmine Crockett, D-Texas, voting present. The bill now heads to the Senate, where it faces an uncertain fate and there appears to be less urgency to act.

Speaker of the House Mike Johnson (R-La) celebrated the bill’s passage by decrying China as America’s geopolitical foe:

"Communist China is America’s largest geopolitical foe and is using technology to actively undermine America’s economy and security," Speaker Mike Johnson, R-La., said in a statement after the vote, warning that TikTok could be used to access American data and spread "harmful" information.

"Today’s bipartisan vote demonstrates Congress’ opposition to Communist China’s attempts to spy on and manipulate Americans, and signals our resolve to deter our enemies."

Yet while there was bipartisan support for the bill, there was also some bipartisan opposition to it, with 15 Republicans and 50 Democrats voting against the legislation, including Jim Hines of Connecticut, the ranking Democrat on the House Intelligence Committee.

The top Democrat on the Intelligence Committee, Rep. Jim Himes of Connecticut, was a surprising no vote. He also cited free speech issues with the bill.

Adversaries like China "shut down newspapers, broadcast stations, and social media platforms. We do not," Himes said in a statement. "We trust our citizens to be worthy of their democracy. We do not trust our government to decide what information they may or may not see."

Yet there is a question to be asked here: what does it mean when Speaker Johnson says “China is America’s largest geopolitical foe”? Are we at war with China? Is China at war with the United States?

How is it that TikTok is uniquely dangerous among social media apps and platforms?

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This is no idle question. The social media giants have been central to most, if not all, of the controversies surrounding “fake news” and “misinformation”, first during the Trump Administration and then as part of the Pandemic Panic Narrative.

We must not forget that social media app Facebook took it upon itself to censor coronavirus “misinformation” during the early days of the SARS-CoV-2 outbreak in 2020.

Facebook merely deleted any posts it did not like.

Twitter, for its part, suspended the Twitter account for ZeroHedge, an alternative media publication that was reporting several things contrary to the Pandemic Panic Narrative.

On January 31, Twitter permanently banned alternative media site and news aggregator ZeroHedge. The presumed reason for the ban stems from an article appearing on Buzzfeed claiming that ZeroHedge was responsible for "doxing"--revealing the personal identity of someone--a Chinese scientist potentially involved with weaponizing the Wuhan Coronavirus.

A popular pro-Trump website has released the personal information of a scientist from Wuhan, China, falsely accusing them of creating the coronavirus as a bioweapon, in a plot it said is the real-life version of the video game Resident Evil.

First and foremost, we must address a key defect of the Buzzfeed article: it is false from start to finish. ZeroHedge did not "falsely accuse" anyone, and the scientist discussed in the relevant ZeroHedge article is someone whose name, information, and academic credentials are public knowledge--meaning it is impossible for him to be doxed.

No less disturbing is the treatment Google gave to James O’Keefe after releasing a video showing Google employees casually discussing what arguably could be called election interference.

No less disturbing is what appears to be the prevailing attitude at Google regarding the people and politics they dislike. Among the other nuggets uncovered by Project Veritas are documents where noted conservative commentators such as Ben Shapiro and Jordan Peterson are referred to as "Nazis" (Note: Ben Shapiro is Jewish, which makes such characterization particularly obnoxious).

Also troubling is Google's response to the story. When James O' Keefe uploaded the video presentation where they broke this story to YouTube (owned by Google), Google deleted it. Faced with criticism of their policies and censorious business practices, Google doubled down on censorship and attempted to silence Project Veritas:

Twitter (pre-Elon Musk), Facebook, YouTube. All these social media platforms have worked to censor and to silence—and still are.

Even LinkedIn silenced me and deplatformed me for nearly two years for the unpardonable sin of contesting the official narratives on COVID and COVID mortality.

All of these platforms colluded to deplatform a number of controversial figures in 2019, from the execrable and hateful Louis Farrakhan to Alex Jones, in a blatant denial of basic civil liberties and human rights.

I wrote in defense of Louis Farrakhan then, not because I respect what he has to say, but because I despise what he has to say. It is easy to defend those with whom we agree, but the imperative of Free Speech demands that we defend those with whom we disagree most strongly.

We are told that TikTok is a “security threat” because it is “Chinese”.

How are Facebook, Twitter, Google/YouTube, and even LinkedIn not a threat to my civil liberties and my inalienable rights? How are they not constantly policing what people may say—and therefore what they may think? If TikTok is dangerous because it is “Chinese”, how much more dangerous is Facebook because it is “American”?

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When we read the text of HR 7521, there is little comfort to be found in the legislation, as it contains loopholes that arguably would extend the authority to ban social media platforms beyond TikTok to any platform deemed “dangerous” by the President unilaterally.

(2) COVERED COMPANY.—

(A) IN GENERAL.—The term “covered company” means an entity that operates, directly or indirectly (including through a parent company, subsidiary, or affiliate), a website, desktop application, mobile application, or augmented or immersive technology application that—

(i) permits a user to create an account or profile to generate, share, and view text, images, videos, real-time communications, or similar content;

(ii) has more than 1,000,000 monthly active users with respect to at least 2 of the 3 months preceding the date on which a relevant determination of the President is made pursuant to paragraph (3)(B);

(iii) enables 1 or more users to generate or distribute content that can be viewed by other users of the website, desktop application, mobile application, or augmented or immersive technology application; and

(iv) enables 1 or more users to view content generated by other users of the website, desktop application, mobile application, or augmented or immersive technology application.

While in theory the legislation is targeted solely at technology platforms from China, Russia, North Korea, and Iran1, there is no prevention to that list of “foreign adversaries countries” being altered or expanded at will—or even being amended to make it solely at the discretion again of the President of the United States.

HR 7521 arrogates a tremendous authority over online speech to the Federal government, places it in the hands of one man, the President of the United States, and provides little check on the use of that authority.

Indeed, the bill goes so far as to both limit which federal courts may hear challenges to the bill, and to limit the time frame for which such challenges may be heard.

SEC. 3. Judicial review.

(a) Right of action.—A petition for review challenging this Act or any action, finding, or determination under this Act may be filed only in the United States Court of Appeals for the District of Columbia Circuit.

(b) Exclusive jurisdiction.—The United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction over any challenge to this Act or any action, finding, or determination under this Act.

(c) Statute of limitations.—A challenge may only be brought—

(1) in the case of a challenge to this Act, not later than 165 days after the date of the enactment of this Act; and

(2) in the case of a challenge to any action, finding, or determination under this Act, not later than 90 days after the date of such action, finding, or determination.

Yes, the Congress has declared that this legislation can be challenged only for six months after it is enacted, and then only in one particular federal circuit court—the District of Columbia Circuit.

This last section on judicial review is particularly obnoxious, for while the First Amendment is widely known to be the guarantor of the right of Free Speech within the United States, it also is the guarantor of every person’s right to seek redress for wrongs done.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

This legislation is explicitly abridging the right of the people to petition the Government for a redress of grievance with respect to any “foreign adversary controlled application” (TikTok and whichever other apps the ruling regime decides it does not like).

That this legislation is by its very nature abridging the freedom of speech for everyone by deciding for all Americans which social media platforms they are allowed to use is equally offensive and repugnant not only to the Constitution, but to every basic conceptualization of personal freedom and personal liberty.

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I shall be clear: China is ruled by a fascist oligarchy and currently controlled by one man who is quite possibly the most megalomaniacal ruler of a major country since his idol Mao Zedong. China’s disdain for even the most basic of human rights and for all human liberties is well documented for the world to see. There is no need to describe the endless ways China seeks to trample on and abuse the rights of its citizens—surely by now this is all common knowledge.

We need only recall the Dantesque scenes of a locked down Shanghai during the height of Xi Jinping’s “Zero COVID” lunacy to know the degeneracy of the Chinese Communist Party which rules over China today.

We need only watch the slow—but likely accelerating—implosion of the Chinese economy due to CCP mismanagement to see how casual and careless Beijing can be in trampling over the lives of the Chinese people.

It is no great stretch to make the case that China under the malignant rule of the Chinese Communist Party is a government in every way antithetical to the ideals laid out in the United States Constitution.

Yet as evil as the CCP might be, and as corrupt and degenerate as government by the CCP may be, we must be mindful of one key fact here: TikTok has not been accused of any crime, and certainly has not been charged with any crime. The only thing TikTok has done “wrong” at this point is to be owned by a Chinese company.

Readers may recall that I have discussed the evolution of legal theories of corporate personhood in this Substack previously, and those legal theories bear particular relevance here.

Regardless of how we apprehend the legal status of companies large and small, one thing is indisputable—in this country companies can be charged with crimes, tried in a court of law, and potentially convicted and punished in full accordance with the law.

Yet to assert the power to charge corporations with crimes is also the assertion of their possessing the same fundamental liberties as natural corporeal persons.

One such liberty is found explicitly detailed in both Article 1 Section 9 of the Constitution as well as Article 1 Section 10—an absolute prohibition on bills of attainder.

No Bill of Attainder or ex post facto Law shall be passed.

It is not lawful under the Constitution for any government at any level—local, state, or federal—to pass a law unilaterally declaring anyone to be an outlaw, a criminal, or to otherwise disadvantage and disabuse them of their fundamental civil liberties.

Yet HR 7521 is exactly such a bill. It is the very definition of a bill of attainder, and is the exact sort of legislation the Constitution expressly and categorically forbids, without exception.

We are told this is for our “security”—what manner of security is it that takes away our freedom, desecrates our civil liberties, and despises our inalienable rights, merely because a corporate entity is “Chinese”?

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I will not debate the degree to which China has malevolent or benevolent feelings towards the United States. If we look at Sino-American relations through a Great Power Competition lens, we can easily see that China is very much in competition with the United States for spheres of influence

What I will debate is the propriety of violating our most basic law—the United States Constitution—in pursuit of some ill-defined “security” concern.

What I will debate is the wisdom of declaring TikTok to be dangerous because it is Chinese while ignoring the numerous ways in which other social media platforms have been far more demonstrably damaging to our civil liberties, to Free Speech, and to the fabric of a Free Society which we should all hold most dear.

China is of course a geopolitical competitor to the United States. So is the European Union, so is India, and so is Russia. All these powers and the United States are eternally in pursuit of greater geopolitical influence and power. This is the essence of Great Power Competition and has been from the dawn of civilization.

Yet our civil liberties do not exist to further the United States as a global or even a regional hegemon. Our inalienable rights are not a vehicle for making the United States the preeminent power in the world. Our freedoms are meant for us as individuals, that we may be free and not be beholden to any government of man.

It takes no great Constitutional scholar to see that, in the current state of affairs, this aspect of the Constitution is honored far more in the breach than in the observance, but that is precisely the point. Too often and for too long civil liberties have given way to other exigencies. That the Constitution is routinely ignored by those whom we elect to power is not a defect of the Constitution, but rather a defect of our own industry in pursuit of our own citizenship. As we elect people to Congress, we have the power to elect other people to Congress.

We will not make this nation one bit more safe by abridging our civil liberties yet again over some ambiguous threat from “China”. We will not preserve our freedoms or our liberty by suppressing them in order to more aggressively confront China.

Government should not have—does not have—the authority to decide which social media applications people may use. Neither that power nor any remotely similar to it may be found within the text of the Constitution. What the Constitution does not allow the Congress should not attempt to legislate.

The Constitution does not allow the Congress to ban TikTok nor any other social media application. Congress should not attempt to do so.

HR 7521 was passed by the House of Representatives. God willing it will die in the Senate. That it most assuredly needs to do.

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Government is at best but an expedient; but most governments are usually, and all governments are sometimes, inexpedient

Henry David Thoreau, “Civil Disobedience”

When we grapple with the challenges of inflation, monetary policy, and economic policy, either for this country or for any country, we somewhat reflexively look to the institutions of government to address any challenges and defects we percieve.

Is this the best approach? Is government really the way to address such problems?

Indeed, the inflationary (and stagflationary) challenges all nations are currently facing greatly call into question the capacity of governments to address such matters. Henry David Thoreau, in his landmark essay “Civil Disobedience”, characterized all governments as “inexpedient”1, and the current array of economic challenges certainly give credence to his depiction.

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Yet it is not merely the current situation that calls into question the capacity of government to competently address inflation. Several times I have explored in this newsletter the serial failures of not just the US government (under the auspices of the notionally independent but highly co-opted Federal Reserve) but also Japan’s government via the Bank of Japan.

There have been many instances of inflation and monetary policy mismanagement by the Federal Reserve, but their response to the Pandemic Panic, the lockdown, and the ensuing recession is by far the worst such episode of sheer policy incompetence.

At the end of Part 1 I asked the question “What was the Fed thinking?”

As best I can determine, they weren’t. At all. In the 40 years since the Volcker rate hikes, the Fed has become so accustomed to fiddling and futzing with the money supply and interest rates that it became simply assumed that whatever policy objective they desired would be the outcome of whatever fiddling and futzing they did.

Suffice it to say, they were wrong. Now they’re caught between a monetary rock and an interest hard place—and so are we all.

Yet the Federal Reserve is hardly alone in this. Arguably, the entirety of Japan’s economic experiment known as “Abenomics” also qualifies as an egregious policy faux pas.

Abenomics thus highlights the reality that government policy is a poor substitute for healthy, free, and unfettered markets. Government policies can tank an economy, as the BoJ’s careless whiplash from loose to tight monetary policy did in the 1990s, but government policy cannot resurrect an economy once it has tanked.

Jerome Powell and his colleagues at the Federal Reserve would do well to remember this as they attempt to corral consumer price inflation in the US without tanking the US economy. Doing too much is a far more dangerous outcome than doing too little.

Perversely, Abenomics not only mostly failed to push through sustained inflation as a palliative to Japan’s serial lost decade, it has thus far been unable to rein in inflation now that the Pandemic Panic has unleashed truly inflationary forces globally.

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What makes this failure seem even stranger is that Japan has some of the lowest yields on sovereign debt, and has persisted in this, even as inflation has soared higher than Japan has seen in a generation.

Japan’s debt yields are not merely low, with inflation factored in they are one of the few nations still tolerating negative real yields on sovereign debt—and the Bank of Japan has done nothing to push these rates up.

Paradoxically, Japan might be the one country that is theoretically doing monetary policy “right”, at least if we consider the assessments of the late Milton Friedman2, Nobel Laureate and one of the leading lights of monetarist economic theories.

Initially, higher monetary growth would reduce short-term interest rates even further. As the economy revives, however, interest rates would start to rise. That is the standard pattern and explains why it is so misleading to judge monetary policy by interest rates. Low interest rates are generally a sign that money has been tight, as in Japan; high interest rates, that money has been easy.

Certainly Japan challenges the idea that interest rate manipulations are the surest route to containing consumer price inflation. Despite holding interest rates within a narrow (and low) band, inflation has both risen and fallen for Japan in recent years.

With so little movement in Japanese interest rates, it is difficult if not impossible to assign any meaningful correlation between those interest rates and consumer price inflation—a correlation that even Milton Friedman denied existed.

After the U.S. experience during the Great Depression, and after inflation and rising interest rates in the 1970s and disinflation and falling interest rates in the 1980s, I thought the fallacy of identifying tight money with high interest rates and easy money with low interest rates was dead. Apparently, old fallacies never die.

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Of course, as I have explored previously, even the prime mover of the strategy to manipulate to regulate inflation, Paul Volcker, did not accomplish quite the victory over inflation that history has accorded him.

Powell is heading down this wrong path because the Volcker myth is fundamentally wrong: Paul Volcker did not “beat” inflation with interest rates. He merely ring-fenced it, keeping it corraled but never ever fully tamed.

Indeed, the data shows that country after country has grappled with high consumer price inflation in the past couple of years, with at best problematic success. Inflation has risen—and fallen—largely in sync across most of the industrialized world.

Even China, where inflation is so low as to present the challenge of deflation, has seen its price indices move largely at the same time as other nations.

Yet country after country persists in using interest rates to attempt to control inflation. Russia recently boosted its key interest rate to 15%, even as inflation has continued to soar out of control.

The central bank has now raised rates by 750 basis points since July, including an unscheduled emergency hike in August as the rouble tumbled past 100 to the dollar and the Kremlin called for tighter monetary policy.

“Current inflationary pressures have significantly increased to a level above the Bank of Russia’s expectations,” the bank said in a statement, pointing to domestic demand outpacing the provision of goods and services, and high lending growth.

Earlier this year, both the European Central Bank and the Bank of England followed the Federal Reserve’s lead in raising interest rates, yet market yields stubbornly refused to follow suit at the time, and the central banks’ influence on inflation has been entirely problematic.

This pattern of central bank policy error and impotence is repeated quite literally around the world. The Federal Reserve, the Bank of England, the European Central Bank, and the Bank of Japan have all used disparate methods to address inflation and monetary policy within their respective countries, and in every instance the methods used have proven ineffective at bringing down inflation, and problematic in raising inflation in the case of pre-pandemic Japan.

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The inability of governments and central banks to rein in rampant inflation over the past few years is made even more egregious because of one simple reality: these same governments indisputably caused the inflation with their insane (and ineffective) lockdown policies to combat COVID-19. Even at the time it was apparent that these policies would cause significant economic disruption and dislocation.

Subsequent research would confirm this to be true.

In 2020 no government asked one simple question: who counts the deaths from recession?

Governments did not stop to count the full cost of their deluded and dysfunctional policies. They merely blundered over the COVID cliff practically in lockstep, and the continued high inflation present around the world is but one highly visible consequence of that policy error.

Which brings us back to Henry David Thoreau’s observation about governments being inexpedient. Since the Pandemic Panic, there is little argument but that governments have been extremely inexpedient in controlling consumer price inflation. The very best that can be said is that governments have not made inflation worse, or at least not that much worse. In no case can it be persuasively stated that the central bank has succeeded in controlling inflation and keeping it down below levels where its economic damage is perceptible. The very worst that can be said is that governments are proving utterly unable to clean up their own messes.

Consumer price inflation descended upon the global economy because of government incompetence and economic illiteracy. Because of government incompetence and economic illiteracy consumer price inflation has persisted. No government has managed to “get it right”, not in 2020 and certainly not since.

Thoreau began “Civil Disobedience” with the proposition “That government is best which governs not at all.” Watching governments try and fail to undo the damaging inflation they have caused gives that proposition new life and new relevance.

This much is certain: but for government we would have no inflation.

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In a highly anticipated decision, the Supreme Court on Friday struck down President Biden's groundbreaking plan to forgive some or all federal student loan debt for tens of millions of Americans.

By a 6-to-3 vote on ideological lines, the high court ruled that federal law does not authorize the Department of Education to cancel such student loan debt.

Specifically, the Supreme Court ruled that the legislation under-girding the Department of Education’s debt relief programs, the HEROES Act2, did not grant such broad authority with respect to student loans.

The Secretary asserts that the HEROES Act grants him the authority to cancel $430 billion of student loan principal. It does not. We hold today that the Act allows the Secretary to “waive or modify” existing statutory or regulatory provisions applicable to financial assistance programs under the Education Act, not to rewrite that statute from the ground up.

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While the corporate media is dutifully making much hue and cry about this ruling, its core is a very mundane principle: the Executive Branch of the federal government may only use those authorities properly delegated to it by the Legislative Branch (i.e., Congress). What Congress has not authorized the White House may not do.

Ironically, in his majority opinion Chief Justice John Roberts quoted none other than former Speaker of the House Nancy Pelosi to reiterate this core principle:

“People think that the President of the United States has the power for debt forgiveness. He does not. He can postpone. He can delay. But he does not have that power. That has to be an act of Congress.” Press Conference, Office of the Speaker of the House (July 28, 2021).

However, we should take care to note what the Supreme Court did not rule: They did not rule that student loan debts could not be forgiven, or that the terms of many/most student loans could not be subjected to radical modifications of both interest and principal.

The ruling of the Court was simply that the laws cited by the Department of Education in establishing the debt forgiveness plans did not authorize such plans. If Congress wishes to pass legislation to grant the Department of Education that authority the Congress remains at liberty to do so.

At present, it is unlikely that Congress will be asked to pass such legislation. The White House and most of Washington had anticipated the Court’s ruling, and so no sooner had the Court announced its ruling than the White House announced that a new debt forgiveness initiative was in the works, grounded in a different piece of legislation and presumably free of the defects that led to the initial program being overturned.

President Joe Biden vowed Friday to push ahead with a new plan providing student loan relief for millions of borrowers, while blaming Republican “hypocrisy” for triggering the day’s Supreme Court decision that wiped out his original effort.

Biden said his administration had already begun the process of working under the authority of the Higher Education Act of 1965, which he called “the best path that remains to provide as many borrowers as possible with debt relief.”

In the meantime, since student loan-payment requirements are to resume in the fall, the White House is creating an “on ramp” to repayment and implementing ways to ease borrowers’ threat of default if they fall behind over the next year.

As of this writing, it is unclear which portions of the Higher Education Act3 the White House plans to reference as the statutory authority for its anticipated “plan B” on debt forgiveness. That reference is being made to the original legislation and not subsequent amending legislation suggests they are planning on grounding this next effort in the debt modification authorities present from the original legislation. Absent specific details, it is reasonable to presume that the revised initiative will hew close to the one just shot down by the Court.

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Exactly how the White House plans to discover within the original legislation the debt relief authority that was not found within the amending legislation that specifically addressed debt relief is a mystery. Even without the details and the particular statutory authority, one feature of the Court’s ruling is unequivocal: The Department of Education does not have blanket authority to rewrite and restructure the student loan programs themselves.

Moreover, the plain reasoning of the Court also suggests that there is likely not such blanket authority within the original Higher Education Act language.

The HEROES Act authorizes the Secretary to “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs under title IV of the [Education Act] as the Secretary deems necessary in connection with a war or other military operation or national emergency.” 20 U. S. C. §1098bb(a)(1). That power has limits. To begin with, statutory permission to “modify” does not authorize “basic and fundamental changes in the scheme” designed by Congress. MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U.S. 218, 225 (1994). Instead, that term carries “a connotation of increment or limitation,” and must be read to mean “to change moderately or in minor fashion.” Ibid. That is how the word is ordinarily used. See, e.g., Webster’s Third New International Dictionary 1952 (2002) (defining “modify” as “to make more temperate and less extreme,” “to limit or restrict the meaning of,” or “to make minor changes in the form or structure of [or] alter without transforming”). The legal definition is no different. Black’s Law Dictionary 1203 (11th ed. 2019) (giving the first definition of “modify” as “[t]o make somewhat different; to make small changes to,” and the second as “[t]o make more moderate or less sweeping”). The authority to “modify” statutes and regulations allows the Secretary to make modest adjustments and additions to existing provisions, not transform them.

Why would Congress pass legislation giving the Department of Education limited debt modification authority when it already possessed sweeping debt forgiveness authority?

That the Court does not see the Department of Education as possessing such sweeping authority at all is all but stated outright in Roberts’ Opinion:

The Secretary’s plan has “modified” the cited provisions only in the same sense that “the French Revolution ‘modified’ the status of the French nobility”—it has abolished them and supplanted them with a new regime entirely. MCI, 512 U. S., at 228. Congress opted to make debt forgiveness available only in a few particular exigent circumstances; the power to modify does not permit the Secretary to “convert that approach into its opposite” by creating a new program affecting 43 million Americans and $430 billion in federal debt. Descamps v. United States, 570 U.S. 254, 274 (2013). Labeling the Secretary’s plan a mere “modification” does not lessen its effect, which is in essence to allow the Secretary unfettered discretion to cancel student loans. It is “highly unlikely that Congress” authorized such a sweeping loan cancellation program “through such a subtle device as permission to ‘modify.’ ” MCI, 512 U. S., at 231.

As it is the reasoning of the Court that Congress made debt forgiveness available only in narrowly drawn circumstances, it will be quite the legal theory indeed to persuade the Court otherwise.

Thus whatever debt forgiveness plans the White House unveils next, anything but the most narrowly drawn of initiatives is not only likely to invite a new challenge by the states, but seems certain to be rejected by the Court for substantially the same reasons as now.

Before there can be a debt forgiveness program of national scope and dimension, Congress will have to pass legislation authorizing such a program. The Court’s ruling has very clearly left that door open, and has made it clear that going through that door is the only viable means for blanket forgiveness of student loan debt.

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Whether or not Congress has the appetite for passing such legislation is obviously problematic. Yet with or without such legislation, the core question remains: what is to be done about rising defaults on student loan debt? While blanket debt forgiveness might not be within the authority granted to the Department of Education, even the Court acknowledged the issue was a real one.

The sharp debates generated by the Secretary’s extraordinary program stand in stark contrast to the unanimity with which Congress passed the HEROES Act. The dissent asks us to “[i]magine asking the enacting Congress: Can the Secretary use his powers to give borrowers more relief when an emergency has inflicted greater harm?” Post, at 27–28. The dissent “can’t believe” the answer would be no. Post, at 28. But imagine instead asking the enacting Congress a more pertinent question: “Can the Secretary use his powers to abolish $430 billion in student loans, completely canceling loan balances for 20 million borrowers, as a pandemic winds down to its end?” We can’t believe the answer would be yes. Congress did not unanimously pass the HEROES Act with such power in mind. “A decision of such magnitude and consequence” on a matter of “ ‘earnest and profound debate across the country’ ” must “res[t] with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.” West Virginia, 597 U. S., at ___, ___ (slip op., at 28, 31) (quoting Gonzales v. Oregon, 546 U.S. 243, 267–268 (2006)).

Nor is it an issue that is simply going to go away. Regardless of why the various student loans were made, the reality is that they were made, and the reality is also that most of them are either heading to default or are already there.

Over the past decade (but prior to the COVID-19 pandemic), the share of borrowers in each of these categories was relatively stable—around 37 percent of borrowers had declining balances, around 47 percent of borrowers had either flat or increasing balances, and around 15 percent of borrowers were in delinquency or default. However, average balances have not been similar across these categories. In 2019, the average balance of those with a declining balance was smaller ($22,342) than those with an increasing balance ($44,993).

The government responses to the COVID madness has not helped the situation.

The federal response to the pandemic for federal student loan borrowers upended these proportions. The share of borrowers with flat or growing balances increased from 48 percent at the end of 2019 to 66 percent at the end of 2021. Meanwhile, the share of borrowers with a delinquent or defaulted loan was halved from 15 percent to 7.5 percent as federal borrowers were not required to make payments and most delinquent borrowers were automatically marked current.

With the total amount of student loan debt in this country at $1.77 Trillion and counting, this is not a small number of delinquent borrowers or borrowers in arrears.

Of that $1.77 Trillion, 92.7% is owed directly to the federal government by approximately 44.5 million borrowers4.

On the numbers alone, student loan debt is a problem this country simply cannot ignore.

Nor is it simply a question of borrowers being unwilling to meet their incurred obligations. While two thirds of bachelor’s degree programs in this country enable graduates to earn enough that they can recover the costs of their education within 5-10 years (and, presumably, pay off the debt), that still leaves one third of those programs where graduates do not realize sufficient earnings to pay off their debts in that time.

For other degree programs, particularly two-year (associate’s degree) programs and certificate programs, the resulting return on investment (ROI) is generally worse.

Bachelor’s degree programs, which typically take four years, are generally more expensive but are most likely to show at least some return on investment — meaning graduates earn enough to pay off their college costs reasonably quickly — for those who complete a degree, compared with two-year associate degrees or shorter certificate programs.

With 55% of students at public colleges and universities, as well as 57% of students at private institutions5, the ROI of degree programs is a significant factor in understanding the dynamics of student loan debt—that one third of degree programs are without a positive ROI means that between 18% and 19% of college students are in programs where there is not a good chance their future earnings will be large enough to allow them to service the student loan debt.

Compounding the problem are the unrealistic salary expectations of new college graduates, who on average tend to overestimate their immediate earnings potential by as much as 30%.

The minimum salary students say they’d accept at their first job is $72,580 — 30% higher than the actual average salary of $55,911. 

The discussion over starting pay presumes that new college graduates can find a job—something which is more problematic than many want to admit. Even though most employers are anticipating hiring more college graduates this year than last, the extent of that hiring has shrunk since last fall.

Projections in the Job Outlook 2023 Spring Update show that employers are planning to hire 3.9% more graduates from the Class of 2023 than they did from the Class of 2022.

The projection is positive, but is down from earlier projections: In the fall, employers projected a 14.7% increase.

Thus even within degree programs that notionally should enable graduates to service their educational debts, recent graduates may have misplaced expectations both about their future incomes as well as their ability to find a job.

None of this points to an easy or automatic resolution to student loan debts in the foreseeable future.

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The seeming intractability of student loan debt forces us to consider a darker aspect of student loans—students may be getting fleeced in the process. Paula Adams, a subscriber to this Substack, has done her own exploration of the student loan issue, and presents substantive arguments that much student lending is predatory in nature.

The reality is that in many cases these loans are PREDATORY LENDING. The schools that have the highest default rate are for-profit schools, not public colleges. These schools promise that you will graduate with a skill that will enable you to be more competitive in the job market. Unfortunately, what actually happened is that many of these jobs have very low starting pay and with the constantly increasing cost of living, many borrowers do not make enough money to pay bills and their student loan payments. That is IF they find a job at all.

The predatory aspect of student loans increases if one accepts the argument that education—the traditional college degree in particular—does not necessarily equate to higher earnings.

As recently as 2021, 39% of American college graduates did not believe their education was worth the money they paid for it. At least 40% of those are not using their degree in their current job.

Other commentators claim that as few as 15% of college students realize any benefit from attending college.

Many education experts conclude that college is a MUST for every child. But mounting evidence makes that advice hard to say with a straight face. By my analysis, at most, only 15% of students benefit from attending college.

For a shorthand economic explanation, some companies that don’t require a college degree offer starting salaries as high as $31,020. The average family spends $72,196 for a child’s college education (average cost of $26,226/year minus merit aid times four years). Meanwhile, the median entry-level salary for a college graduate has stayed steady at around $48,000. So families and graduates spend $192k ($72k for college, $120k in forfeited earnings) for a $17k bump in salary. Further, more and more college graduates are stuck in low-wage jobs, when they can find a job at all.

Certainly skepticism about the utility of college education is on the rise, and already more than half of all Americans doubt that a four-year degree is worth the cost.

The survey, conducted with NORC at the University of Chicago, a nonpartisan research organization, found that 56% of Americans think earning a four-year degree is a bad bet compared with 42% who retain faith in the credential. 

Skepticism is strongest among people ages 18-34, and people with college degrees are among those whose opinions have soured the most, portending a profound shift for higher education in the years ahead. 

If, as appears to be case given a growing consensus within the American public, the education being financed by student loans is of dubious value at best, and does not provide a realistic opportunity to service the debt. Immediately this calls into question the propriety of students taking out these loans in the first place, and begs the question of how many borrowers incurred their debt on the basis of erroneous and potentially dishonest representations about the economic utility of the education being financed with student loans.

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None of these statistics demonstrably prove that there has been any broad malfeasance or fraudulent representation on the part of schools and student loan servicers to encourage college students to take on debts with little or no realistic means of repayment. However, this data does raise the question of possible malfeasance, and to the extent that unserviceable student loan debt is the result of malfeasance it is hardly an iniquity for the borrower to seek relief.

Beyond the justice question is the practical consideration of how should the federal government deal with the reality that more than half of the monies owed to it in the form of student loan debt are in serious jeopardy of never being repaid. There is little use in simply insisting that the loans be repaid when the borrowers are either unable or unwilling to do so. If the reality is that the loans will not be repaid, the government must decide what is the proper response and then execute that response.

If borrowers are simply choosing to prioritize other spending choices over servicing their student loans, but otherwise have the means to pay back those loans, the government must decide how to proceed against those delinquent borrowers.

If borrowers are, for whatever reason, not earning enough to service their loans, the government must decide how much of those loans should be canceled, and what consequences should attach to the borrower for having their loans canceled.

The White House and the Department of Education have attempted to implement the response of simply cancelling a large portion of the outstanding student loan debt. The Supreme Court has ruled that in so doing the Department of Education greatly exceeded the authority delegated to it by the Congress. The likely next effort by the White House to circumvent the Court’s ruling is not likely to survive legal challenge, as the Court’s finding that the Department of Education lacks the requisite authority encompasses the totality of legislation related to the Higher Education Act of 1965.

Thus we are left with the frustrating and unanswered question: What next? What can the government do to address delinquent student loan debt—and why isn’t the government doing it?

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Seaford’s city council is considering whether to allow businesses the right to vote in municipal elections, making the western Sussex County city the largest municipality in the state to consider such a measure.

Thus Seaford gives us another reason why discussions of “legal personhood” for corporations are always timely and relevant—in matters large and small, we are constantly being challenged on where to draw the line distinguishing between the rights of “natural persons” (i.e., actual flesh and blood people) and “artificial persons” (i.e., businesses and non-profits). Corporate personhood as an issue goes far beyond “big” discussions such as RFK, Jr’s, proposal to ban Big Pharma ads from television.

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Surprisingly, Seaford is not the first municipality in Deleware to consider granting businesses and “artificial entities” the right to vote. Henlopen Acres1 extended the franchise to artificial entities in 2001. Fenwick Island2 followed suit in 2008. Seaford is merely the largest municipality in Delaware proposing to give businesses a vote in local governance3.

The core proposition within each of these pieces of legislation is to modify the premise of “one person, one vote”, to become “one person/entity, one vote”. Henlopen Acres’ enabling legislation is quite to the point in this regard:

(1) Every property owner, whether an individual, trust, partnership, corporation or limited liability company shall have one vote.

1. A entity other than an individual shall vote by a person named in a certificate signed by the president, vice-president or person with authority, attested by the secretary or an assistant secretary, and with the corporate or appropriate seal affixed. A partnership shall vote by a person named in a certificate signed by all of the general partners. No vote shall be cast by a person named in a certificate given pursuant to this paragraph until the certificate is filed with the Town Manager. A new certificate shall be required for each election.

2. Every citizen of the United States, State of Delaware, and Town of Henlopen Acres who is not a property owner but who is a bona fide resident of the Town of Henlopen Acres, and is over the age of eighteen (18) shall have one vote

Fenwick Island’s enabling legislation is wordier but arrives at the same point:

A.                  Voter qualifications.

(1)                 Resident:  Every natural person, who is a citizen of the United States, age 18 or before the date of the election, a bona fide resident of the Town as of March 1 prior to the annual municipal election, and registered to vote, if provided by ordinance, shall have one (1) vote.

(2)                 Non-residents.  Every property owner as of March 1 prior to the annual municipal election, whether a natural person or artificial entity, including but not limited to corporations, partnerships, trusts, and limited liability companies, and who is registered to vote, if provided by ordinance, shall have one (1) vote.  A natural person shall be a citizen of the United States and age 18 on or before the date of the election.  An artificial entity shall be a domestic entity in the State of Delaware.

(3)                 These provisions shall be construed in accordance with the principle of ‘one-person/entity, one vote’.  Where a voter is entitled to vote by virtue of being both a resident and as an owner of real property, that voter shall be entitled to only one (1) vote; where a voter is entitled to vote by ownership of two (2) or more parcels of real property, that voter shall be entitled to only one (1) vote.

(4)                 Any legal entity, other than a natural person entitled to vote, must cast its vote by a duly executed and notarized power of attorney from the legal entity granting the authority to cast its vote to its designated attorney-in-fact.  Such power of attorney shall be surrendered to the election officials who shall file the same in the office of the Town.  Such power of attorney so filed shall constitute conclusive evidence of the right of said person to vote in the election on behalf of the legal entity granting the power.  The person casting the ballot for such entity shall be age 18 on or before the date of the election and a citizen of the United States.

Seaford’s proposed legislation is similarly verbose:

(A) Voter Qualifications.  

At such Annual Election,   the following shall be permitted to vote:

(1) Residents.   Every natural   person, male or female who shall have attained the age for voting as established by the State of Delaware for voting in a General Election and who shall be a bona fide resident of the City of Seaford as of the day of final registration next preceding the Annual Election and each non-resident natural person of the City of Seaford who shall have obtained the age for voting established by the State of Delaware for voting in a General Election   shall have 1 vote. For purposes of this provision, “bona fide resident” means a permanent full-time resident of the City.

(2) Non-residents   . Every owner of property in the City   as of the day of final registration next preceding the Annual Election , whether a natural person or artificial entity, including but not limited to corporations, partnerships, trusts, and limited liability companies, and who is registered to vote in the book of registered voters maintained at City Hall, shall have one (1) vote. An artificial entity shall be a domestic entity in the State of Delaware and be in good standing.

(3) These provisions shall be construed in accordance with the principle of “one person/entity/one vote.” Where a voter is entitled to vote by virtue of being a resident or an owner of real property, that voter shall be entitled to only one (1) vote; where a voter is entitled to vote by ownership of two (2) or more parcels of real property, that voter shall also be entitled to only one (1) vote.

  (4) Any legal entity, other than a natural person entitled to vote, must cast its vote by a duly executed and notarized power of attorney,     corporate resolution, or authorization affidavit duly executed from the legal entity granting the authority to cast its vote to its designated   attorney-in-fact. Such power of attorney shall be surrendered to the election officials as of the day of final registration next preceding the Annual Election and the election officials shall file the same at City Hall. Such power of attorney, corporate resolution, or authorization affidavit duly executed so filed shall constitute conclusive evidence of the right of said person to vote in the election on behalf of the legal entity granting the power. The person casting the ballot for such entity shall be age 18 on or before the date of the election and a resident of the State of Delaware. In order for the City of Seaford to eliminate incidence of opportunities for violations of the “one person/entity/one vote principle and in accordance with The Federal Corporate Transparency Act after January 1, 2024, artificial entities shall be required to provide the City of Seaford with a completed CERTIFICATION OF BENEFICIAL OWNER(S) pursuant to Section 1020.230 of Title 31 of the United States Code of Federal Regulations (31 CFR 1020.230). All beneficial owners listed on the submitted CERTIFICATION OF BENEFICIAL OWNER(S) shall be cross-referenced with the voter registration listing provided by the State of Delaware and the Book of Registered Voters of the City of Seaford. Any related entities with common ownership shall be eliminated from voting more than once in Municipal Elections.

Unsurprisingly, the Seaford bill has more than a little opposition. Claire Snyder-Hall, Executive Director of Common Cause Delaware, is urging Delaware residents to tell their state legislators to vote down the bill.

Ten years ago in Delaware, after a major campaign finance scandal that sent people to prison, Chief Justice Norm Veasey issued a report calling for a law that prohibits artificial entities from making campaign contributions. His recommendation has never been implemented, but HS 1 for HB 121 doubles down in the wrong direction. It puts artificial entities on steroids by giving them the right to vote, a right that should be reserved for flesh-and-blood human beings. 

The Seaford mayor supports the right of businesses to vote. “There are people who have invested a ton of money in our town – in businesses – and then wonder why they can’t vote … just because they live outside of city limits," he said. “They can’t vote … but their employees can.”  

With all due respect to the mayor, that is absurd. People who don’t live in Seaford – or even in Delaware – should not get to vote in town elections, even if they own a business in Seaford. And of course, the employees get to vote. They live there! That’s how it works. People get to vote where they live – and not because they own property, but simply because they live there.  

Additionally, there is competing legislation pending in the state legislature4 that would prohibit corporations from gaining the franchise anywhere in Delaware, closing this apparent voting loophole for good. An op-ed in Delaware progressive media outlet Blue Delaware is urging the swift passage of that legislation.

Earlier this year, some misguided legislators introduced a bill that would allow certain artificial entities, like LLCs and Corporations, to vote in Seaford’s muncipal elections. They literally took Mitt Romney’s “Corporations are people, my friend” gaffe to its logical conclusion.

Fortunately, that bill has gone nowhere since it was released from committee, and House Bill 189 aims to void that bill and all others like it forever. The bill makes clear that corporations and other artificial entities may not be given a vote in municipal elections.

Whether the Seaford bill or the opposing bill will pass remains to be seen.

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However, even if the Seaford bill should pass, the validity of that legislation—and the validity of the Henlopen Acres and Fenwick Island legislation—is hardly a given. Even within the remit of the Delaware state constitution, the constitutionality of corporate voting rights is not at all certain.

While municipalities largely govern their own local elections, they are still obligated to conform to Delaware state election law for municipalities5.

In §7554(d), voter identification requirements are plainly set forth as follows:

(d) Persons appearing to vote shall present proof of identity and address. The identification shall be 1 or more of the following items that individually or together show the identity and address of the person:

(1) A current State of Delaware driver’s license or ID card;

(2) A uniformed service ID card;

(3) Another current photo ID issued by the State of Delaware; U.S. Government; the voter’s employer, high school or higher education institution;

(4) A current utility bill, bank statement, credit card statement, a paycheck or pay advice, or another type of bill or statement;

(5) A lease or sales agreement; and/or

(6) Any other documentation that a person can reasonably and commonly accept as proof of identity and address.

The Seaford bill states that corporate voting shall be done by a person duly authorized to vote on behalf of the legal entity, laying out the documents establishing that authorization. Henlopen Acres and Fenwick Island have virtually identical provisions. An artificial entity votes through an appointed “attorney-in-fact”—which it of course must because a corporation has no actual “person”, no physical aspect which can enter a polling place nor provide any of the documents cited under Delaware state law. The capacity of a municipality to add to the list of additional acceptable identifiable documents is very much in doubt, as the phrasing of §7554(d) presents the list of identifying documents as a comprehensive one, with only (6) providing any flexibility.

The utility of (6) for satisfying the statutory voter ID requirements by means of a corporate resolution, power of attorney, or authorizing affadavit seems dubious, because such authorizing documents are neither proofs of identity nor proofs of address, nor could it ever be said that such documents could be “reasonably and commonly" accepted as such.

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Nowhere in the Delaware code is there a provision indicating that any form of proxy voting is permissible—and proxy voting is the only mechanism by which any artificial entity can vote

This view would seem to be amplified by a recent ruling of the Delaware Supreme Court striking down voting by mail. In Albence v Higgins6, the state Supreme Court declared a recent vote-by-mail statute unconstitutional, holding, among other things, that the statute was an improper expansion of the constitutionally stated requirements for casting an absentee ballot.

But it is not history alone that persuades us that the Vote-by-Mail Statute violates Section 4A. Our construction of Section 4A also comports with two time-honored principles of interpretation. Under the linguistic canon known as “expressio (or inclusio) unius,” the expression of one thing—here the categories of absentee voters provided in Section 4A—suggests the exclusion of others.191 Of course, this canon “must be applied with great caution, since its application depends so much on context[] . . . .”192 Here, however, the context of Section 4A’s enactment and amendment as described above weighs heavily in favor of its application. Thus, Section 4A’s enumeration of absentee-voter classifications suggests the exclusion of additional classifications.

The complete list of eligibility requirements for absentee voting are enumerated in Article 5, Section 4A of the Delaware Constitution7. Those requirements are specifically targeted at “electors” who are prevented from appearing in person to cast a ballot.

Section 4A. The General Assembly shall enact general laws providing that any qualified elector of this State, duly registered, who shall be unable to appear to cast his or her ballot at any general election at the regular polling place of the election district in which he or she is registered, either because of being in the public service of the United States or of this State, or his or her spouse or dependents when residing with or accompanying him or her because of the nature of his or her business or occupation, because of his or her sickness or physical disability, because of his or her absence from the district while on vacation, or because of the tenets or teachings of his or her religion, may cast a ballot at such general election to be counted in such election district.

It goes without saying that a corporate artificial entity is automatically “unable to appear to cast his or her ballot”. As a matter of practical application, does not the use of a duly authorized attorney-in-fact to cast a vote on behalf of a corporate entity constitute an unconstitutional expansion of the list of reasons a person might qualify to vote by absentee ballot to include being a corporate entity? If a Vote-By-Mail statute is an unconstitutional expansion of absentee voter eligibility, then how is corporate voting not also an equally unconstitutional expansion of that same voter eligibility?

While Albence addressed Vote-By-Mail for state elections, and as such address state election absentee voting requirements in Section 4A in the constitution, those requirements are substantially identical to the absentee ballot eligibility requirements for municipal elections details in Subchapter V of Delaware State Election Law8.

§ 7571. Persons eligible to vote by absentee ballot.

Any person qualified under the provisions of a municipal charter to vote by absentee ballot in any municipal election held in that municipality (“elector”) may vote by absentee ballot for any reason authorized by that municipality’s charter or ordinances and for any of the following reasons:

(1) Because such person is in the public service of the United States or of this State, or is a citizen of the United States temporarily residing outside the territorial limits of the United States and the District of Columbia, or such person’s spouse or dependents when residing with or accompanying the person, or is absent from this State because of illness or injury received while serving in the armed forces of the United States; or

(2) Because such person is in the armed forces of the United States or the Merchant Marines of the United States, or attached to and serving with the armed forces of the United States in the American Red Cross or United Service Organizations; or

(3) Because of the nature of such person’s business or occupation, including the business or occupation of providing care to a parent, spouse or that person’s child who is living at home and requires constant care due to illness or injury; or

(4) Because such person is sick or physically disabled; or

(5) Because such person is absent from the municipality while on vacation; or

(6) Because such person is unable to vote at a certain time or on a certain day due to the tenets or teachings of that person’s religion.

If the Seaford bill were to pass, absentee ballot eligibility would be fundamentally altered for Seaford municipal elections, even though the Seaford charter would not have been specifically amended with regards to absentee balloting.

This creates a conflict similar to the one addressed in Albence, as §7551(g) of Subchapter IV9 explicitly obligates the municipal Board of Elections to administer absentee balloting as specified in the municipal charter or in accordance Subchapter V.

(g) Unless otherwise provided in the municipality’s charter or code, the municipality’s Board of Elections shall oversee the absentee ballot process for elections conducted in accordance with subchapters IV and V of this chapter.

The Seaford bill’s only mention of absentee balloting10 is that Deleware state law is controlling.

(C) Absentee voting shall be permitted in all municipal elections in conformity with Chapter 75 of Title 15 of the Delaware Code.

With the Seaford charter not amended to provide for different absentee ballot elegibility, and Subchapter V not expansive enough to encompass voting by an attorney-in-fact, corporate voting becomes the same sort of back-door expansion of absentee voter eligibility shot down by Albence.

To my layman’s eye, the Seaford bill (and the earlier Henlopen Acres and Fenwick Island bills) comes up short in terms of statutory compliance with the Delaware election code. With or without House Bill 189 banning corporate voting, such defects would be permanently lethal to corporate voting in Delaware.

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Yet even if there are not problems reconciling corporate voting to Delaware state election law, existing judicial opinions on corporate personhood and how that applies in law create additional difficulties for the concept—beginning with, ironically, the Fourteenth Amendment to the United States Constitution’s “equal protections” clause.

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws

To consider a corporate right to vote necessarily entails consideration of the corporation as a legal person—and to realize that the distinction cuts both ways.

If we look back over the evolution of corporate personhood doctrines, in cases such as Paul v Virginia11, the Supreme Court was particularly concerned that the corporate structure not present additional “privileges and immunities” not enjoyed by actual citizens of a particular state (As Paul predates the Fourteenth Amendment, the discussion is presented in light of the “privileges and immunities” clause in Article VI of the US Constitution). In elucidating the relevance of the Constitution’s “privileges and immunities” clause, Paul had this to say (emphasis mine):

It was undoubtedly the object of the clause in question to place the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned. It relieves them from the disabilities of alienage in other States; it inhibits discriminating legislation against them by other States; it gives them the right of free ingress into other States, and egress from them; it insures to them in other States the same freedom possessed by the citizens of those States in the acquisition and enjoyment of property and in the pursuit of happiness; and it secures to them in other States the equal protection of their laws. It has been justly said that no provision in the Constitution has tended so strongly to constitute the citizens of the United States one people as this.

However, as Paul continues, there are limitations to how far such “equal protection” may go.

But the privileges and immunities secured to citizens of each State in the several States by the provision in question are those privileges and immunities which are common to the citizens in the latter States under their constitution and laws by virtue of their being citizens. Special privileges enjoyed by citizens in their own States are not secured in other States by this provision. It was not intended by the provision to give to the laws of one State any operation in other States. They can have no such operation, except by the permission, express or implied, of those States. The special privileges which they confer must, therefore, be enjoyed at home, unless the assent of other States to their enjoyment therein be given.

Without some sort of delimiter, an untrammeled application of “equal protection” would quickly metastasize into corporations (and, potentially, natural persons), enjoying privileges and immunities within a state not enjoyed by natural persons who are simply citizens or residents of that state.

If, on the other hand, the provision of the Constitution could be construed to secure to citizens of each State in other States the peculiar privileges conferred by their laws, an extraterritorial operation would be given to local legislation utterly destructive of the independence and the harmony of the States. At the present day, corporations are multiplied to an almost indefinite extent. There is scarcely a business pursued requiring the expenditure of large capital, or the union of large numbers, that is not carried on by corporations. It is not too much to say that the wealth and business of the country are to a great extent controlled by them. And if, when composed of citizens of one State, their corporate powers and franchises could be exercised in other States without restriction, it is easy to see that, with the advantages thus possessed, the most important business of those States would soon pass into their hands. The principal business of every State would, in fact, be controlled by corporations created by other States.

We should note that the Supreme Court case where corporations were declared to have benefit of the Fourteenth Amendment, Santa Clara County v Southern Pacific Railroad12, did not overrule nor even address the holdings in Paul v Virginia. It merely extended the Fourteenth Amendment’s “equal protections” clause to corporations unremarked and undifferentiated. Consequently, within the notion of granting corporations the Fourteenth Amendment’s guarantee of the equal protection of the laws, we still have the understanding from Paul that such equal protection—which Paul explicitly stated was among the “privileges and immunities” guaranteed in Article VI of the Constitution—applies both ways.

If corporations are therefore allowed to authorize an attorney-in-fact to cast a vote on their behalf, should not natural persons also be allowed to do so? Would not the Fourteenth Amendment’s guarantee of equal protection in fact demand it?

Given that the explicit finding in Albence v Higgins that Delaware’s voting laws specified in-person voting, for corporate voting to be permissible in Delaware the Delaware state constitution arguably has to be amended to allow what is known as “delegated voting”13—which is the only mechanism by which a corporation can ever cast a ballot on anything. Delegated voting is exactly what it sounds like: you give someone else authority to vote on your behalf. As Albence shows, delegated voting is not within the permissible voting scenarios in the state of Delaware.

Can Delaware extend the franchise to “artificial persons” such as corporations without simultaneously permitting delegated voting, which it currently does not allow? I do not see how it can.

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While the current state of US law is that legal personhood exists for corporations, that is not to say that corporations are equivalent to natural persons in all regards.

In fact, even in modern Supreme Court cases touching upon corporate personhood, the Court has drawn fairly clear distinctions about the nature of corporate personhood, and it remains certain that corporate “artificial” persons are not the same as natural persons, even if upon some occasion corporate persons and natural persons should find themselves availing themselves of a common right. Citizens United v FEC14, for example, did not take issue with drawing a distinction between corporate “artificial persons” and “natural persons”.

If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech. If the antidistortion rationale were to be accepted, however, it would permit Government to ban political speech simply because the speaker is an association that has taken on the corporate form. The Government contends that Austin permits it to ban corporate expenditures for almost all forms of communication stemming from a corporation. See Part II–E, supra; Tr. of Oral Arg. 66 (Sept. 9, 2009); see also id., at 26–31 (Mar. 24, 2009). If Austin were correct, the Government could prohibit a corporation from expressing political views in media beyond those presented here, such as by printing books. The Government responds “that the FEC has never applied this statute to a book,” and if it did, “there would be quite [a] good as-applied challenge.” Tr. of Oral Arg. 65 (Sept. 9, 2009). This troubling assertion of brooding governmental power cannot be reconciled with the confidence and stability in civic discourse that the First Amendment must secure.

There would be little need for the Court to specify both “citizens” and “associations of citizens” if it were intended that corporations and citizens were legally identical in all regards.

The common thread throughout the evolution of legal personhood doctrines within the United States is this understanding that incorporated entities are essentially associations of people. Because they are understood to be an amalgamation of people they necessarily take on certain legal privileges and immunities applicable to the corporations members and corporators—which is also to say they do not take on all legal privileges and immunities. Corporations do not have a Fifth Amendment right against self-incrimination15, for example, because corporations cannot give testimony. However, corporations do have a Fifth Amendment right under that Amendment’s “takings” clause16, because corporations can and do own property.

Similarly, is there any real operative logic to giving corporations a right to vote, even though corporations are physically unable to present themselves as a polling place except through a designated proxy—a voting mechanism that is currently not extended to voters in the United States (and certainly not in Delaware)? That is not how legal personhood has been historically applied to corporations. The concept of legal personhood has always been predicated on the understanding that where corporations can and do act in the manner of natural persons, it is sensible and prudent to regard them before the law as if they were natural persons. Where corporations cannot possibly act in the manner of natural persons, it is hardly sensible or prudent to regard them before the law as if they were natural persons.

There is no corporation anywhere that can physically cast a ballot on its own. Corporations can not, in the most literal sense of the term, cast a vote. It is irrational in the extreme, therefore, to grant them the right to vote.

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Whatever philosophical merits such a proposal might have, they amount to naught if the proposal stands in contravention of the First Amendment. Even if we notionally support the proposition, if the proposition is unconstitutional it simply cannot stand.

Which brings us back also to the propositions made by Margaret Anna Alice in discussion of RFK, Jr’s, proposal.

Previously I explored the evolution of the doctrines of legal personhood for corporations in the United States.

As before, my purpose here is not to challenge Margaret’s position that “money is not speech”. Rather, the goal is simply to explore the Supreme Court cases that culminated in the ruling she cites as a “catastrophe”, Citizens United v. FEC1. Taking the cue from the historic Marbury v Madison2, which posited that the role of the courts is “to say what the law is”, in questions of corporate speech just as in questions of corporate personhood, effective discussion and opposition to such concepts requires we be extremely clear and precise on what the law says, as well as what it does not say.

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Citizens United addressed statutory limitations on corporate expenditures and contributions related to any political election or campaign, expenditures historically limited as part of the Federal Election Campaign Act of 19713 and particularly revised in the Bipartisan Campaign Reform Act of 20024. The broad thrust of the statute was that corporations could not make political expenditures or contributions out of its general funds5.

It is unlawful for any national bank, or any corporation organized by authority of any law of Congress, to make a contribution or expenditure in connection with any election to any political office, or in connection with any primary election or political convention or caucus held to select candidates for any political office, or for any corporation whatever, or any labor organization, to make a contribution or expenditure in connection with any election at which presidential and vice presidential electors or a Senator or Representative in, or a Delegate or Resident Commissioner to, Congress are to be voted for, or in connection with any primary election or political convention or caucus held to select candidates for any of the foregoing offices, or for any candidate, political committee, or other person knowingly to accept or receive any contribution prohibited by this section, or any officer or any director of any corporation or any national bank or any officer of any labor organization to consent to any contribution or expenditure by the corporation, national bank, or labor organization, as the case may be, prohibited by this section.

At issue in Citizens United was a principle established in an earlier opinion, Austin v Michigan Chamber of Commerce6, to the effect that corporate political speech could be banned.

Federal law prohibits corporations and unions from using their general treasury funds to make independent expenditures for speech defined as an “electioneering communication” or for speech expressly advocating the election or defeat of a candidate. 2 U. S. C. §441b. Limits on electioneering communications were upheld in McConnell v. Federal Election Comm’n, 540 U. S. 93, 203–209 (2003). The holding of McConnell rested to a large extent on an earlier case, Austin v. Michigan Chamber of Commerce, 494 U. S. 652 (1990). Austin had held that political speech may be banned based on the speaker’s corporate identity.

In Citizens United, the Court overturned Austin, ruling that 2 USC §441(b)’s limits on “electioneering communications” were unconstitutional.

To understand how the Court arrived at this conclusion, we must first clarify Margaret Anna Alice’ initial proposition above: the principle that “money is speech” did not arrive with Citizens United, but is actually the result of a 1976 ruling, Buckley v Valeo7. Citizens United was in fact largely a decision by the Court to return that ruling to prominence as a controlling precedent.

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In Buckley, the Court held that expenditures for political expression were tantamount to that political expression—i.e., political speech.

The expenditure limitations contained in the Act represent substantial, rather than merely theoretical, restraints on the quantity and diversity of political speech. The $1,000 ceiling on spending "relative to a clearly identified candidate," 18 U.S.C. § 608(e)(1) (1970 ed., Supp. IV), would appear to exclude all citizens and groups except candidates, political parties, and the institutional press [Footnote 19] from any significant use of the most effective modes of communication. [Footnote 20] Although the Act's limitations on expenditures by campaign organizations and political parties provide substantially greater room for discussion and debate, they would have required restrictions in the scope of a number of past congressional and Presidential campaigns [Footnote 21] and would operate to constrain campaigning by candidates who raise sums in excess of the spending ceiling.

As a result of the Buckley ruling, the notion that “money is speech”—rather, that expenditures of money by and on behalf of political candidates consitutes a mode of political speech that enjoys broad First Amendment protection—has been an accepted part of at least the election law landscape in this country since 1976.

Moreover, even in Austin, the ruling Citizens United wished to overturn, there was not only acknowledgment that expenditures to promote political expressions were protected speech but also that such protections were not vitiated merely because of corporate status (emphasis mine).

To determine whether Michigan's restrictions on corporate political expenditures may constitutionally be applied to the Chamber, we must ascertain whether they burden the exercise of political speech and, if they do, whether they are narrowly tailored to serve a compelling state interest. Buckley v. Valeo, 424 U. S. 1, 424 U. S. 44-45 (1976) (per curiam). Certainly, the use of funds to support a political candidate is "speech" independent campaign expenditures constitute "political expression at the core of our electoral process and of the First Amendment freedoms.'" Id. at 424 U. S. 39 (quoting Williams v. Rhodes, 393 U. S. 23, 393 U. S. 32 (1968)). The mere fact that the Chamber is a corporation does not remove its speech from the ambit of the First Amendment. See, e.g., First National Bank of Boston v. Bellotti, 435 U. S. 765, 435 U. S. 777 (1978).

That corporations could enjoy broad First Amendment protections also is not a novel creation of Citizens United, as the citation of First National Bank of Boston v Bellotti8 shows.

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In Bellotti, the Supreme Court rejected the line of reasoning used by the appellate court, which was to pose the question as to the extent of a corporation’s particular First Amendment rights, and instead approached the question from whether the statute under challenge intrinsically creates a challenge under the First Amendment.

The court below framed the principal question in this case as whether and to what extent corporations have First Amendment rights. We believe that the court posed the wrong question. The Constitution often protects interests broader than those of the party seeking their vindication. The First Amendment, in particular, serves significant societal interests. The proper question therefore is not whether corporations "have" First Amendment rights and, if so, whether they are coextensive with those of natural persons. Instead, the question must be whether § 8 abridges expression that the First Amendment was meant to protect. We hold that it does.

Substantially, the Court found that if a law or regulation ran afoul of the First Amendment, it did so regardless of whether the afflicted party was a natural person or a corporate—i.e., an “artificial person.”

In Bellotti, the Court explicitly held that the enjoyment by a particular exemplar of speech to First Amendment protection was irrespective of whether the author of that speech was a natural person or a corporate (“artificial”) person.

If the speakers here were not corporations, no one would suggest that the State could silence their proposed speech. It is the type of speech indispensable to decisionmaking in a democracy, [Footnote 11] and this is no less true because the speech comes from a corporation, rather than an individual. [Footnote 12] The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.

Under Bellotti, speech did not lose First Amendment protection simply because its source was a corporation rather than a natural person.

Bellotti also drew from Court precedent that a legislature may not restrict speech because of its subject matter, making explicit reference to the 1972 Police Department Of The City Of Chicago v Mosley9 case:

But, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.

Separately and some years later, the Court ruled in FEC v Massachusetts Citizens For Life10 that the application of 2 USC §441(b)—the same statute at issue in Citizens United—towards non-profit corporations such as MCFL was an unconstitutional infringement of political speech.

Regardless of whether that concern is adequate to support application of § 441b to commercial enterprises, a question not before us, that justification does not extend uniformly to all corporations. Some corporations have features more akin to voluntary political associations than business firms, and therefore should not have to bear burdens on independent spending solely because of their incorporated status.

Substantially, in MCFL, the Court made a distinction between for-profit corporations using their amassed wealth to champion political candidates and causes and non-profit entities formed specifically to engage in such political public discourse. Likening entities such as MCFL to “voluntary political associations”, the Court held that such entities should not have their rights of free speech burdened solely due to their corporate status.

Consequently, by the time of the Citizens United case, the idea of a corporate First Amendment protection for political speech was nearly forty years old—hardly a novel judicial or legal theory.

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MCFL figured prominently in Austin, the ruling Citizens United sought to overturn, as the Court examined the distinctions between a Chamber of Commerce—an association of businesses—and an advocacy group such as MCFL.

The final characteristic upon which we relied in MCFL was the organization's independence from the influence of business corporations. On this score, the Chamber differs most greatly from the Massachusetts organization. MCFL was not established by, and had a policy of not accepting contributions from, business corporations. Thus it could not "serv[e] as [a] condui[t] for the type of direct spending that creates a threat to the political marketplace." Ibid. In striking contrast, more than three-quarters of the Chamber's members are business corporations, whose political contributions and expenditures can constitutionally be regulated by the State.

Because of the significant differences between the corporate entity of a chamber of commerce and the corporate entity of an advocacy group such as MCFL, the Court reasoned in Austin that Section 54(1) of the Michigan Campaign Finance Act11 was a permissible regulation of corporate speech. Central to the Court’s logic in Austin was that corporations are a type of entity particularly suited for amassing and concentrating wealth—reasoning also found in MCFL, and in fact Austin merely quotes the logic from MCFL.

corporations are "by far the most prominent example of entities that enjoy legal advantages enhancing their ability to accumulate wealth."

In upholding the Michigan campaign finance law, however, the Austin Court departed from the precedents established in Buckley and Bellotti which largely precluded speech regulation based on corporate identity.

In considering Citizens United, the Court noted that Austin presented the Court with conflicting precedents:

The Court is thus confronted with conflicting lines of precedent: a pre-Austin line that forbids restrictions on political speech based on the speaker’s corporate identity and a post-Austin line that permits them. No case before Austin had held that Congress could prohibit independent expenditures for political speech based on the speaker’s corporate identity. Before Austin Congress had enacted legislation for this purpose, and the Government urged the same proposition before this Court.

The Court was discomfited by the anti-distortion logic of Austin. Based on that logic, the government argued in Citizens United that the government had the power to ban almost all forms of corporate speech merely by virtue of it being corporate speech.

If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech. If the antidistortion rationale were to be accepted, however, it would permit Government to ban political speech simply because the speaker is an association that has taken on the corporate form. The Government contends that Austin permits it to ban corporate expenditures for almost all forms of communication stemming from a corporation.

The Court in Citizens United rejected Austin’s logic, in part because it saw a danger that such logic could allow Congress to ban the political speech of media corporations, a danger it found “unacceptable”. Indeed, the Court held that 2 USC §441(b)’s exclusions for media corporations confirmed the unconstitutional nature of the statute.

Thus the Court concluded in Citizens United that Austin should be overturned. By so doing, far from establishing new corporate rights of free speech, the Court saw itself as restoring the pre-Austin standard that corporate identity could not be used to regulate political speech. The Court sought in Citizens United to affirm the Buckley and Bellotti precedents by rejecting Austin.

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That the Court sought to restore earlier understandings of how the First Amendment applied to corporate speech is important to appraising Citizens United and its significance as a precedent going forward. The reaffirmation of Bellotti’s rationale is particularly noteworthy with regards to RFK, Jr’s, proposals to ban pharmaceutical advertising from television.

Citizens United and all the cases upon which that decision were built focused exclusively on political speech. However, Bellotti, which the Court sought to reestablish as a controlling precedent, also made offhand reference to a corporation’s right to commercial speech—which advertising unquestionably is:

Until recently, it was not thought that any persons, natural or artificial, had any protected right to engage in commercial speech. See Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U. S. 748, 425 U. S. 761-770 (1976). Although the Court has never explicitly recognized a corporation's right of commercial speech, such a right might be considered necessarily incidental to the business of a commercial corporation.

While the Court in Bellotti did not explicitly rule that corporations had a right to commercial speech, it clearly leaned considerably in that direction.

Moreover, in Bellotti, the Court also somewhat paradoxically made political speech rights more problematic to the corporate form than commercial speech rights.

It cannot be so readily concluded that the right of political expression is equally necessary to carry out the functions of a corporation organized for commercial purposes. [Footnote 4/5] A State grants to a business corporation the blessings of potentially perpetual life and limited liability to enhance its efficiency as an economic entity. It might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere. Furthermore, it might be argued that liberties of political expression are not at all necessary to effectuate the purposes for which States permit commercial corporations to exist. So long as the Judicial Branches of the State and Federal Governments remain open to protect the corporation's interest in its property, it has no need, though it may have the desire, to petition the political branches for similar protection. Indeed, the States might reasonably fear that the corporation would use its economic power to obtain further benefits beyond those already bestowed.

Following the Court’s logic, a corporation’s rights to engage in commercial speech are arguably superior to its rights to engage in political speech, even though the Court reasoned that political speech itself is far more deserving of Constitutional protection than purely commercial speech.

While Citizens United sought to restore the Buckley and Bellotti precedents on political speech by corporations, it arguably also reaffirmed Bellotti’s belief that corporations have an almost intrinsic right to commercial speech as well. Commercial speech might potentially enjoy less First Amendment protection than political speech, yet in light of Bellotti it is highly likely that a particular mode of commercial speech can not be regulated merely because its source is a corporation.

Consequently, whatever societal benefits might accrue from banning Big Pharma’s pharmaceutical ads from television, such bans would likely not be sustainable within the Court’s current understanding of First Amendment protections towards various modes of speech if based primarily on the status of Big Pharma companies as corporations. To limit pharmaceutical advertisements, different legal logic is likely to be necessary.

However, there is another important takeaway from Citizens United: Precedents can be and sometimes are overturned. Just as Austin moved the Court’s position on corporate speech away from Buckley and Bellotti, Citizens United moved it back. Margaret Anna Alice’ opposition to constructions of monetary expenditures as tantamount to speech is not rendered disproven or wrong merely because Citizens United takes a different position. Rather, opposition to the notion of “money is speech”, in order to prevail within the law, must build up an argument that refutes Citizens United, Buckley, and Bellotti.

Much as with corporate personhood, the treatment of corporate expenditures as protected speech under the First Amendment is the result of a constantly evolving understanding of speech by the Supreme Court. That understanding has changed over time, and almost certainly will change again in the future.

Today, the current state of the law is that speech may not be limited or infringed merely because the source of that speech is a corporation. Similarly, the expenditures necessary to effect various modes of speech themselves today enjoy the same First Amendment protections as the actual utterances themselves.

Such is what the law is today. What the law should be tomorrow is the crux of all political debate, and is the question we must constantly both ask and answer if we are to move the law forward.

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Beyond the immediate issues I see with RFK's proposal, it is worth noting that his ideas have sparked some interesting discussions here on Substack, raising some points that deserve further exploration.

Dr. DeMasi’s Substack article was restacked by Margaret Anna Alice, who also gave the idea full-throated approval.

Margaret Anna Alice further expounded on the idea by asserting two intriguing supporting propositions: a rejection of the idea of legal personhood for corporations and a rejection of a principle attributed to the Citizens United1 Supreme Court case: that expenditures of money are expressions of free speech.

Without commenting on the merits and demerits of her proposition legal personhood, it is nevertheless important to understand that the modern doctrine of legal personhood did not arise ex nihilo within any one Supreme Court case, but is a doctrine whose evolution reaches back even before the founding of the United States. Understanding where US law stands currently on legal personhood and how it evolved to that point provides a much needed backdrop for weighing what reforms are both appropriate and Constitutional when contemplating what to do with Big Pharma corruption.

Borrowing from Chief Justice John Marshall’s historic phrasing in Marbury v Madison2, “It is emphatically the duty of the Judicial Department to say what the law is”, my goal here is neither to prove nor disprove her propositions, but simply to explore where the law stands on them, and how those stands have come to be—to provide the detail, as it were, on what the law in these matters is. Understanding what the law is today, I submit, is essential if we are to wisely decide what the law should be tomorrow.

Fair warning: This is not a small subject, and this article addresses only the first of the two propositions. Assessing the status of “money as speech” will come in a subsequent article.

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A few years after Marshall’s historic Marbury decision, he would again visit the limitations of the what the law is in ruling on a lawsuit involving the Bank of the United States—the central bank of its day. Thus Bank of the United States v. Deveaux3 articulated a key legal facet of the corporate structure in early 19th century America—corporations were not counted as “citizens”.

The jurisdiction of this Court being limited, so far as respects the character of the parties in this particular case, "to controversies between citizens of different states," both parties must be citizens to come within the description.

That invisible, intangible, and artificial being, that mere legal entity, a corporation aggregate, is certainly not a citizen, and consequently cannot sue or be sued in the courts of the United States unless the rights of the members in this respect can be exercised in their corporate name. If the corporation be considered as a mere faculty, and not as a company of individuals who, in transacting their joint concerns, may use a legal name, they must be excluded from the courts of the union.

This early reasoning by the courts to my layman’s eye appears to reconcile rather well to Margaret Anna Alice’ stated positions—a corporation is not a citizen, and can only be apprehended as a citizen to the extent its members are themselves citizens.

However, even in this early decision, Marshall acknowledged that the treatment of corporations often approached that of actual persons, and pointed out this had been the understanding of the English common law from which much American common law has been derived.

In the case of King v. Gardner, reported by Cowper, a corporation was decided, by the Court of King's bench, to come within the description of "occupiers or inhabitants." In that case, the poor rates, to which the lands of the corporation were declared to be liable, were not assessed to the actual occupant, for there was none, but to the corporation. And the principle established by the case appears to be that the poor rates on vacant ground belonging to a corporation may be assessed to the corporation as being inhabitants or occupiers of that ground. In this case Lord Mansfield notices and overrules an inconsiderate dictum of Justice Yates that a corporation could not be an inhabitant or occupier.

These opinions are not precisely in point, but they serve to show that for the general purposes and objects of a law, this invisible, incorporeal creature of the law may be considered as having corporeal qualities.

It is true that as far as these cases go, they serve to show that the corporation itself, in its incorporeal character, may be considered as an inhabitant or an occupier, and the argument from them would be more strong in favor of considering the corporation itself as endowed for this special purpose with the character of a citizen, then to consider the character of the individuals who compose it as a subject which the court can inspect, when they use the name of the corporation for the purpose of asserting their corporate rights. Still the cases show that this technical definition of a corporation does not uniformly circumscribe its capacities, but that courts for legitimate purposes will contemplate it more substantially.

Thus even in this early US Supreme Court decision, while corporations were not regarded as full citizens themselves, they nevertheless could be legally apprehended as having the citizenship qualities of their members, thus creating a form of quasi-citizenship.

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That a corporate entity could have rights intrinsic to the entity and not derived from any of its members would be one of the principles upon which a subsequent case, Trustees of Dartmouth College v. Woodward4, was decided.

A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it either expressly or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created. Among the most important are immortality, and, if the expression may be allowed, individuality -- properties by which a perpetual succession of many persons are considered as the same, and may act as a single individual. They enable a corporation to manage its own affairs and to hold property without the perplexing intricacies, the hazardous and endless necessity, of perpetual conveyances for the purpose of transmitting it from hand to hand. It is chiefly for the purpose of clothing bodies of men, in succession, with these qualities and capacities that corporations were invented, and are in use. By these means, a perpetual succession of individuals are capable of acting for the promotion of the particular object like one immortal being.

While legal personhood was not a specific aspect of the Dartmouth case, that corporate entities could have legal rights—specifically, corporate autonomy and the right to operate free from government interference—was firmly established by Dartmouth, and so the case becomes a stepping stone on the longer path towards contemporary apprehensions of legal personhood.

The corporate autonomy established in Dartmouth would be used specifically to ground an articulation of legal personhood in the 1839 case Bank of Augusta v. Earle5 (emphasis mine),

It is very true that a corporation can have no legal existence out of the boundaries of the sovereignty by which it is created. It exists only in contemplation of law and by force of the law, and where that law ceases to operate and is no longer obligatory, the corporation can have no existence. It must dwell in the place of its creation, and cannot migrate to another sovereignty. But although it must live and have its being in that state only, yet it does not by any means follow that its existence there will not be recognized in other places, and its residence in one state creates no insuperable objection to its power of contracting in another. It is indeed a mere artificial being, invisible and intangible; yet it is a person for certain purposes in contemplation of law, and has been recognized as such by the decisions of this Court.

The doctrine of corporate autonomy articulated in Dartmouth would also become a key element of Louisville, Cincinnati & Charleston R. Co. v. Letson6, which would also seek to clarify and to some degree retreat from the blanket presumption of Bank v Deaveaux that corporations could not be regarded as citizens.

It is that a corporation created by and doing business in a particular state is to be deemed to all intents and purposes as a person, although an artificial person, an inhabitant of the same state, for the purposes of its incorporation, capable of being treated as a citizen of that state as much as a natural person. Like a citizen, it makes contracts, and though in regard to what it may do in some particulars it differs from a natural person, and in this especially, the manner in which it can sue and be sued, it is substantially, within the meaning of the law, a citizen of the state which created it and where its business is done, for all the purposes of suing and being sued. And in coming to this conclusion as to the character of a corporation, we only make a natural inference from the language of this Court upon another occasion, and assert no new principle.

The language from which the Supreme Court in 1844 drew that inference was the language from Dartmouth quoted above.

Thus by 1844, the laws of the United States had already evolved to an apprehension that a form of legal personhood did extend to corporations, and that corporations could and indeed should be treated in the same manner as natural persons when appropriate within contemplation of the law. In Louisville, the treatment in question included the liability to being sued in federal district court by a citizen of a state different from its state of incorporation, thus fulfilling a Constitutional predicate for federal court jurisdiction per Article 3, Section 2 of the US Constitution (emphasis mine):

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

This was the explicit conclusion of the Louisville v Letson case:

In Bank v. Deveaux, the case relied upon most for the doctrines contended for by the plaintiff in error, it is said of a corporation, "This ideal existence is considered as an inhabitant, when the general spirit and purposes of the law requires it." If it be so for the purposes of taxation, why is it not so for the purposes of a suit in the circuit court of the United States, when the plaintiff has the proper residence? Certainly the spirit and purposes of the law require it. We confess our inability to reconcile these qualities of a corporation -- residence, habitancy, and individuality -- with the doctrine that a corporation aggregate cannot be a citizen for the purposes of a suit in the courts of the United States unless in consequence of a residence of all the corporators being of the state in which the suit is brought. When the corporation exercises its powers in the state which chartered it, that is its residence, and such an averment is sufficient to give the circuit courts jurisdiction.

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That a corporation established effectual citizenship within the state in which it was chartered was explicitly confirmed nine years later in Marshall v. Baltimore & Ohio Railroad Company7, with specific reference to Louisville v Letson.

In Marshall v Baltimore, the judicial principle of stare decisis8, the general legal presumption that courts will hew to established precedents, was part of the judicial logic that, inasmuch as the corporate citizenship principles articulated in Louisville v Letson had framed numerous subsequent cases without challenge before Marshall v Baltimore, cases and issues which might need to be relitigated were Louisville v Letson to be overturned, it would be inappropriate to overturn them in Marshall v Baltimore.

The published report of that case (whatever the fact may have been) exhibits no dissent to the opinion of the Court by any member of it. It has for the space of ten years been received by the bar as a final settlement of the questions which have so frequently arisen under this clause of the Constitution, and the practice and forms of pleading in the courts of the United States have been conformed to it. Confiding in its stability, numerous controversies involving property and interests to a large amount have been heard and decided by the circuit courts, and by this Court, and many are still pending here, where the jurisdiction has been assumed on the faith of the sufficiency of such an averment. If we should now declare these judgments to have been entered without jurisdiction or authority, we should inflict a great and irreparable evil on the community. There are no cases where an adherence to the maxim of stare decisis is so absolutely necessary to the peace of society as those which affect retroactively the jurisdiction of courts. For this reason alone, even if the Court were now of opinion that the principles affirmed in the case just mentioned and that of Bank v. Deveaux were not founded on right reason, we should not be justified in overruling them. The practice founded on these decisions, to say the least, injures or wrongs no man while their reversal could not fail to work wrong and injury to many.

Thus by 1853 the state of American law firmly established a basic premise of legal personhood for corporate entities.

Curiously enough, the doctrine of legal personhood articulated in Marshall v Baltimore, just as in Louisville v Letson, arose to establish not merely legal right but also legal liability—legal personhood for corporations meant that parties to a litigation could not use the corporate structure as a means of excluding the litigation from the courts.

"A corporation, it is said, is an artificial person, a mere legal entity, invisible and intangible."

This is no doubt metaphysically true in a certain sense. The inference also that such an artificial entity "cannot be a citizen" is a logical conclusion from the premises which cannot be denied.

But a citizen who has made a contract and has a "controversy" with a corporation may also say with equal truth that he did not deal with a mere metaphysical abstraction, but with natural persons; that his writ has not been served on an imaginary entity, but on men and citizens; and that his contract was made with them as the legal representatives of numerous unknown associates or secret and dormant partners.

The necessities and conveniences of trade and business require that such numerous associates and stockholders should act by representation, and have the faculty of contracting, suing, and being sued in a factitious or collective name. But these important faculties, conferred on them by state legislation, for their own convenience, cannot be wielded to deprive others of acknowledged rights. It is not reasonable that those who deal with such persons should be deprived of a valuable privilege by a syllogism, or rather sophism, which deals subtly with words and names without regard to the things or persons they are used to represent.

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Appreciating this mid-century view of legal personhood for corporations is essential for placing the case many sources cite as the origin of modern notions of legal personhood, the 1886 Santa Clara County v. Southern Pacific Railroad Co.9 case, in its proper context.

Santa Clara County is very much an odd duck in the pantheon of cases addressing an evolving notion of legal personhood, for the ruling itself did not substantively address either legal personhood or the application of the Fourteenth Amendment to corporations. Rather, a premise expanding legal personhood to include corporations under the Fourteenth Amendment’s guarantee of “equal protection of the laws”, was peremptorily declared by Chief Justice Morrison Waite prior to oral argument.

One of the points made and discussed at length in the brief of counsel for defendants in error was that "corporations are persons within the meaning of the Fourteenth Amendment to the Constitution of the United States." Before argument, MR. CHIEF JUSTICE WAITE said:

"The Court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution which forbids a state to deny to any person within its jurisdiction the equal protection of the laws applies to these corporations. We are all of opinion that it does. "

This declaration by the Chief Justice would subsequently be accepted as part of the ruling in Santa Clara County and cited accordingly, such as in the 1898 case Smyth v Ames10.

By the Fourteenth Amendment, it is provided that no state shall deprive any person of property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. That corporations are persons within the meaning of this amendment is now settled. Santa Clara County v. Southern Pacific Railroad, 118 U. S. 394, 118 U. S. 396

Because of the extraordinary (and arguably improper) declaration by the Chief Justice and subsequent reliance upon it as binding precedent, some legal commentators and historians criticize the validity of the precedent.

But it wasn’t until the 1886 case Santa Clara County v. Southern Pacific Rail Road that the Court appeared to grant a corporation the same rights as an individual under the 14th Amendment. The case is remembered less for the decision itself—the state had improperly assessed taxes to the railroad company—than for a headnote added to it by the court reporter at the time, which quoted Chief Justice Morrison Waite as saying: “The Court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution which forbids a state to deny to any person within its jurisdiction the equal protection of the laws applies to these corporations. We are all of opinion that it does.”

Indeed, UCLA law professor Adam Winkler would argue in an essay appearing in The Atlantic in 2018 that the modern notion of legal personhood is built upon a “19th century lie”.

Prior to the Santa Clara County case, Southern Pacific Rail Road had a similar case, San Mateo County v. Southern Pacific R. Co11, come before the Supreme Court, argued by legal and political heavyweight Roscoe Conkling12—who had been on the Congressional committee which had drafted the Fourteenth Amendment’s text. In his oral argument, Conkling made the claim to the Court that the Fourteenth Amendment’s use of the word “person” rather than “citizen” had been done expressly to encompass corporate persons as well as natural persons in its intent.

As he spoke before the Court on Southern Pacific’s behalf, Conkling recounted an astonishing tale. In the 1860s, when he was a young congressman, Conkling had served on the drafting committee that was responsible for writing the Fourteenth Amendment. Then the last member of the committee still living, Conkling told the justices that the drafters had changed the wording of the amendment, replacing “citizens” with “persons” in order to cover corporations too. Laws referring to “persons,” he said, have “by long and constant acceptance … been held to embrace artificial persons as well as natural persons.” Conkling buttressed his account with a surprising piece of evidence: a musty old journal he claimed was a previously unpublished record of the deliberations of the drafting committee.

Subsequent inspection of Conkling’s journal suggests that Conkling simply lied. Certainly there is no external historical support for his claim that the use of the word “persons” in the Fourteenth Amendment was specifically used to include corporate “artificial” persons.

The San Mateo County case is noteworthy because, even though oral arguments were heard on the case, the Court held the case until 1885, at which point the parties to the case had settled the matter and the Court simply dismissed the case. For reasons never formally stated, the Court avoided actually ruling on the case, and when substantially the same issues came before the Court in Santa Clara County, Chief Justice Waite short-circuited the judicial proceedings by declaring ex cathedra that the issue of extending Fourteenth Amendment guarantees of equal protection of the laws to corporations was settled. Professor Winkler suspects the Court realized Conkling had misled them and chose to bury the San Mateo County case rather than face an inevitable scandal; such is not an unreasonable interpretation of events, although there is no precise evidence at hand to prove the allegation.

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Yet Conkling’s claims in San Mateo County are erroneous in another regard as well—as we can see just in the cases cited above, the articulations of corporate personhood revolved largely around questions of whether or not a corporation was a citizen of a particular state, and whether it can sue and be sued in the manner of a citizen of a particular state. “Person” was hardly necessary language within the Fourteenth Amendment in order to advantage corporations.

Canadian legal writer Benjy Radcliffe, in 2009, would ponder this very question.

After that moment, everything changed. In effect, the U.S. Supreme Court had granted the attribute of personhood to the corporation; as a result, corporations enjoy the same rights as ordinary people. Yet corporations do not behave as persons, and lack many defining characteristics of biological persons. Indeed, as Lord Chancellor Thurlow put it, corporations have, “no soul to damn, no body to kick”. What then inspired the great need for the corporation to be conceived as persons? In particular, what additional impetous caused the U.S. Supreme Court to stray from the line of reasoning it adopted a scant 20 years ago in Paul v. Virginia (1869), 75 U.S. (7 Wall.) 168, where it held corporations were not citizens?

Arguably, Radcliffe is overgeneralizing the logic expressed in Paul v Virginia13.

Paul does express the principle that corporations are not notionally citizens of a state.

But in no case which has come under our observation, either in the State or Federal courts, has a corporation been considered a citizen within the meaning of that provision of the Constitution which declares that the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States.

However, this principle is not at all in conflict with the half-century of Supreme Court reasoning summarized herein. Paul in fact restates the logic in Bank of Augusta, which, as shown above, concluded that corporations become persons “for certain purposes in contemplation of law”.

Paul also makes an important observation regarding the “privileges and immunities” clause in the Constitution:

But the privileges and immunities secured to citizens of each State in the several States by the provision in question are those privileges and immunities which are common to the citizens in the latter States under their constitution and laws by virtue of their being citizens. Special privileges enjoyed by citizens in their own States are not secured in other States by this provision. It was not intended by the provision to give to the laws of one State any operation in other States. They can have no such operation, except by the permission, express or implied, of those States. The special privileges which they confer must, therefore, be enjoyed at home, unless the assent of other States to their enjoyment therein be given.

A citizen of the state of New York, for example, cannot exercise his particular rights as a New York citizen while within the jurisdiction of the state of New Jersey, but he does enjoy all the rights possessed by citizens of New Jersey while in that state.

Additionally, Paul makes another important observation about the nature of corporations: they exist as one of those “privileges and immunities” guaranteed by the Constitution.

Now a grant of corporate existence is a grant of special privileges to the corporators, enabling them to act for certain designated purposes as a single individual, and exempting them (unless otherwise specially provided) from individual liability. The corporation being the mere creation of local law, can have no legal existence beyond the limits of the sovereignty where created.

With regards to state citizenship, this sets up a conundrum. While on the one hand a corporation is not held to be a citizen of a state, yet its corporators are citizens of at least one state. If the character and state citizenship of the corporators were the only determinant on how courts should apprehend corporations for matters such as jurisdiction and rights and privileges pertaining to contracts, then the moment such a corporation enters into contract in a state other than where it is incorporated, its corporators potentially receive additional benefits not available to the citizens of that other state—the very thing the Constitution forbids, albeit in reverse.

If, on the other hand, the provision of the Constitution could be construed to secure to citizens of each State in other States the peculiar privileges conferred by their laws, an extraterritorial operation would be given to local legislation utterly destructive of the independence and the harmony of the States. At the present day, corporations are multiplied to an almost indefinite extent. There is scarcely a business pursued requiring the expenditure of large capital, or the union of large numbers, that is not carried on by corporations. It is not too much to say that the wealth and business of the country are to a great extent controlled by them. And if, when composed of citizens of one State, their corporate powers and franchises could be exercised in other States without restriction, it is easy to see that, with the advantages thus possessed, the most important business of those States would soon pass into their hands. The principal business of every State would, in fact, be controlled by corporations created by other States.

It was upon this logic that the Court concluded in Paul that states had the power and authority to particularly regulate the activities of foreign corporations.

It is important to note that this is still the legal state of affairs today. A corporation chartered in one state still has to qualify to conduct intrastate business in another state14. Neither Santa Clara County nor any subsequent decision by the Court has altered this. The application of the Fourteenth Amendment does not and has not precluded this.

Neither did extending the Fourteenth Amendment’s guarantee of equal protection of the laws prevent the Court from ruling in Hale v. Henkel15 that corporations could not be persons for the purpose of asserting a Fifth Amendment right against self-incrimination.

The right of a person under the Fifth Amendment to refuse to incriminate himself is purely a personal privilege of the witness. It was never intended to permit him to plead the fact that some third person might be incriminated by his testimony, even though he were the agent of such person. A privilege so extensive might be used to put a stop to the examination of every witness who was called upon to testify before the grand jury with regard to the doings or business of his principal, whether such principal were an individual or a corporation. The question whether a corporation is a "person" within the meaning of this amendment really does not arise except, perhaps, where a corporation is called upon to answer a bill of discovery, since it can only be heard by oral evidence in the person of some one of its agents or employees.

As corporations can only give testimony via its agents or employees, it cannot therefore incriminate itself. Therefore, it cannot presume a Fifth Amendment right, as the right is reserved exclusively for the one giving testimony—i.e., the agent or employee.

However, as was affirmed in Russian Volunteer Fleet v United States16, corporations do enjoy the benefit of the Fifth Amendment’s “takings” clause:

As the facts alleged in the petition were admitted by the motion to dismiss, the allegation that the petitioner is a corporation duly organized under the laws of Russia stands unchallenged on the record. There was no legislation which prevented it from acquiring and holding the property in question. The petitioner was an alien friend, and, as such, was entitled to the protection of the Fifth Amendment of the federal Constitution.

While the Fourteenth Amendment has been deemed to extend equal protection of the laws to corporations, it does so only in those areas of the law where corporations enjoy consideration as “persons”—which consideration is neither universal nor presumed.

The answer to Beny Radcliffe’s question of “what changed?” is simply the ratification of the Fourteenth Amendment itself. Paul as a case arose while the Amendment was being ratified, and so the legal arguments constructed were done so on the basis of the “privileges and immunities” clause of the Constitution.

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

This Constitutional declaration is fundamentally transformed by Section 1 of the Fourteenth Amendment (emphasis mine):

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

As Paul notes, the Constitutional provision extending the “privileges and immunities” of the several states includes equal protection of the laws. What the Fourteenth Amendment did was establish that such protection extended to everyone, citizen or otherwise. As corporations are not citizens but are artificial persons, to the extent that corporations may and should be legally treated as persons, after Santa Clara County they enjoy equal protection of the laws.

Given the well established precedent that corporations are artificial “persons” with rights and responsibilities attaching thereto, the conclusion that the Fourteenth Amendment guarantees to corporations as well the equal protection of the laws is perhaps not so radical a statement as some commentators suggest. Following the evolving theory of legal personhood expressed in the cases cited herein, applying the Fourteenth Amendment to corporations merely means the courts regard them equally with natural persons within the scope of legal matters brought before them—that if a corporation is, within contemplation of law, to be regarded as if it were a person, it necessarily enjoys the same equal protection of the laws as a natural person. A corporation is not disadvantaged before the courts merely by being a corporation.

As existing limitations imposed on foreign corporations and the preclusion of Fifth Amendment rights against self incrimination demonstrate, such equal protection does not make corporations fully equivalent to natural persons—indeed, following the logic of Paul, such equivalence would be contrary to the standard of equal protection of the laws. Santa Clara County did not change that operative logic.

An important point made in Smyth regarding the Fourteenth Amendment’s application to corporations via Santa Clara County was that what constituted “equal protection” was a matter to be adjudicated.

What amounts to deprivation of property without due process of law, or what is a denial of the equal protection of the laws, is often difficult to determine, especially where the question relates to the property of a quasi-public corporation, and the extent to which it may be subjected to public control. But this Court, speaking by Chief Justice Waite, has said that while the state has power to fix the charges by railroad companies for the transportation of persons and property within its own jurisdiction, unless restrained by valid contract, or unless what is done amounts to a regulation of foreign or interstate commerce, such power is not without limit, and that under pretense of regulating fares and freights, the state cannot require a railroad corporation to carry persons or property without reward, neither can it do that which in law amounts to the taking of private property for public use without just compensation, or without due process of law."

While from Santa Clara County onward corporations have been presumed to enjoy the equal protection of the law, how that protection is put into practice is inherently a matter for courts to determine.

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If you’ve hung with me so far, well done!

If you’ve hung with me so far, you probably are wondering “what is the point?”

The most immediate point is to present the background by which the courts come to apply principles of personhood to corporations. While it is intuitively obvious that corporations are not and can never be “natural” persons, they are able to perform many of the legal functions routinely transacted by natural persons: they buy and sell goods and services, they enter into contracts, they acquire and dispose of property of all types.

When a corporation engages in any of these activities, should the courts apprehend them differently than natural persons, or the same? If differently, by what legal standards should corporate transactions be assessed?

These questions arise directly when we consider ideas such as RFK, Jr.’s proposed ban on pharmaceutical advertising. It accomplishes little to enact such a ban if it is not done in keeping with the proper legal standard applicable to Big Pharma corporations; either the ban will not survive court challenge or it will open the door to an even greater corruption.

If one applies doctrines of legal personhood, the answer to these questions is largely that the courts should apprehend corporations in the same manner as natural persons where it is fitting. If one rejects those doctrines then the appropriate different legal standard must be defined.

Yet there is an additional point to consider, which Margaret Anna Alice elucidates elsewhere in that same discussion thread.

Corporations cannot be incarcerated. When they are convicted of crimes, the worst they tend to get is fines, which they factor into the cost of doing business. Instead of being dissolved, they just rebrand themselves under a different name. CEOs and individual perpetrators are rarely held to account. So basically, we are dealing with amoral entities that are virtually untouchable.

Accepting this at face value for the purposes of this article, when we consider the evolution of legal personhood for corporations in light of such assertions we must ask ourselves a simple and direct question: “How did this get so badly screwed up?”

Recall the wording of Louisville v Letson:

Jurisdiction, in one sense, in cases of corporations, exists in virtue of the character of members, and must be maintained in the courts of the United States unless citizens can exempt themselves from their constitutional liability to be sued in those courts by a citizen of another state by the fact that the subject of controversy between them has arisen upon a contract to which the former are parties, in their corporate and not in their personal character.

Constitutional rights and liabilities cannot be so taken away or be so avoided. If they could be, the provision which we are here considering could not comprehend citizens universally, in all the relations of trade, but only those citizens in such relations of business as may arise from their individual or partnership transactions.

The very premise behind considerations of legal personhood, as stated in Louisville v Letson as in other cases, was in large measure to prevent such loopholes by which liability could be avoided. It was in furtherance of this explicit objective that the Supreme Court explicitly likened corporations to citizens for the purposes of establishing jurisdiction.

…it is substantially, within the meaning of the law, a citizen of the state which created it and where its business is done, for all the purposes of suing and being sued.

If, as Margaret Anna Alice asserts (and let me reiterate, I am not disputing her assertion here), corporations have become unaccountable behemoths of illegality and corruption, then something has gone radically wrong. In charting the evolving understanding of the nature of corporate entities within the law, the courts have consistently sought not merely to ensure that all proper rights are respected, but that all just liabilities are honored as well. The history of legal personhood shows that it is not meant as an evasion of liability nor a pathway of unaccountability, but rather a balance of both rights and responsibilities.

Whether legal personhood is fair and just juridical doctrine is, ultimately, a question I will leave to the reader. Regardless of that answer, an ongoing debate about how best to ensure proper liability and accountability by corporate entities and those executives who helm them is one that must be had. If we are to bend the arc of history towards justice at last such debates must never be avoided or ignored.

Hopefully, this somewhat overlong essay helps to further that debate.

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The Adams administration has announced a plan to begin tracking the carbon footprint created by household food consumption as well as a new target for New York City agencies to reduce their food-based emissions by 33% by the year 2023.

If we take the Gothamist reporter at face value, Mayor Adams is planning a Chinese-level of surveillance and monitoring of New York City residents.

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To be sure, it is amply documented that on April 17, 2023, the Mayor’s Office held a press event announcing the city’s commitment to target “food-based” sources of greenhouse gas emissions.

Per the transcript of the event:

With Mayor Adams' leadership, New York City is reaffirming its commitment to reducing consumption-based emissions of greenhouse gases through our food, including innovative actions, policies, and initiatives.

However, the term “household” does not appear in the transcript.

Yet in that same event Mayor Adams talks about having “a conversation” about food and climate change1 (emphasis mine).

This is a significant moment and we're going to look back on what we're doing here in New York and what we're doing in London and how this impacts the way we have been thinking. And it also is going to be an uncomfortable moment for many. It is easy to talk about emissions that are coming from vehicles and how it impacts our carbon footprint. It is easy to talk about the emissions that's coming from buildings and how it impacts our environment, but we now have to talk about beef. And I don't know if people are really ready for this conversation. And we can't have a level of hypocrisy where we want to ensure that we do local laws to address the emissions that's come from fossil fuel, but not willing to have a real conversation on what food is doing to us.

And I recall during my campaign for mayor when we first started engaging in the behavioral issues that's attached to unhealthy food, there was a lot of pushback. There was a lot of people who did not want to look at the science. And now more and more we're discovering how food that is nutritionally void has a major impact on the health of a person's mental state. And we know the story, what it has done for us physically, and that is why we're here in the hospital, talking about the role that food plays on our physical wellbeing. But now we are at a new level and this conversation is a very significant one.

At a minimum, one can reasonably infer that Mayor Adams wants New York City to pass laws regarding what foods may be consumed.

The Gothamist story was picked up by the alternative media outlet The Defender, run by health advocacy non-profit Children’s Health Defense.

New York City will begin tracking the carbon footprint of household food consumption and putting caps on how much red meat can be served in public institutions as part of a sweeping initiative to achieve a 33% reduction in carbon emissions from food by 2030.

Mayor Eric Adams and representatives from the Mayor’s Office of Food Policy and Mayor’s Office of Climate & Environmental Justice announced the new programs last month at a Brooklyn culinary center run by NYC Health + Hospitals, the city’s public healthcare system, just before Earth Day.

At the event, the Mayor’s Office of Climate & Environmental Justice shared a new chart to be included in the city’s annual greenhouse gas inventory that publicly tracks the carbon footprint created by household food consumption, the Gothamist reported.

The chart, which is included in the “New York City Household Consumption-Based Emissions Inventory” report dated February, 2023, is this:

EcoDataLabs is, without a doubt, developing data on per-household levels of consumption for a variety of food categories.

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Here’s where this story gets interesting.

Local New York news outlet 9News chose to issue a “fact check” of the piece in The Defender, claiming the story was false:

State and local governments are enacting policies designed to fight against climate change, including New York City. 

A May 16 article claiming America’s largest city is tracking residents’ food purchases and “imposing caps on red meat” went viral on social media. Some people have referred to this as “food fascism” and have suggested the city’s government is tracking individual credit and debit card purchases to create a “social credit system” in which it can decide what individual people can eat.

Specifically, 9News is referring to a tweet that was made on May 17:

9News asserts the claim that NYC will be tracking purchases by household and placing caps on how much meat may be sold in restaurants as false.

No, New York City is neither tracking household food purchases nor limiting individual consumption of red meat. 

But is that really the case?

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While the Defender headline might arguably be hyperbolic, it is documented fact that EcoDataLab is reporting on New Yorker’s food consumption patterns per household. They have been preparing a report on per-household emissions of so-called “greenhouse gases” for the city for the past several years.

Mayor Adams himself mentioned “having a conversation about food” in the same breath as mentioning “doing local laws” regarding fossil fuels. Mayor Adams specifically stated “now we have to talk about beef.”

Is the Defender’s connecting of these dots that outlandish? Especially when another NYC official, Commissioner Rohit Aggarwala, Department of Environmental Protection, spoke of incorporating a variety of consumption patterns into the city’s greenhouse gas inventory reports in that same event:

Just to build on what the mayor said, since 2007, New York City has every year produced a boundary based, a citywide carbon emissions inventory that calculates the carbon emissions from fossil fuels combusted within the city's boundaries, the trucks and cars on our roads, buildings inside our roads or buildings on our roads and the energy, the electricity generated and shipped to New York City. But until now, it has never included the carbon footprint of the things that we bring in from outside, the food we eat, the services that we import, the consumer goods, the clothing we wear, things like that.

How does the Mayor propose to have a “conversation about food” without having data to track food purchases on a per household basis? None of the articles say.

Moreover, financial services firm American Express has been partnering with climate change advocacy group C40 for over a year to build out the relevant data collection mechanisms.

C40 Cities is thrilled to announce a new partnership with American Express to support the development of consumption-based emissions inventories for London and New York City.

While this does not explicitly state that per-person or per-household purchases will be tracked, neither does C40 offer any assurance that such purchases will not be tracked. Given the size and stature of American Express as a financial services firm, we have to at least consider the possibility that any system they design might very well incorporate gathering per-person and per-household data; we certainly are not able, on the data at hand, to exclude that possibility.

The Defender also pointed out that Aggarwala was involved in starting up Google’s “smart city” subsidiary Sidewalk Labs.

At a minimum, New York City has assembled the infrastructure with the potential to track food purchases by individual household if desired, and Mayor Adams certainly appears to have the desire..

We should, however, note that EcoDataLab’s current reporting methodology does not draw on culled individual purchase data, but on presumably anonymous surveys applied against a computer modeling algorithm:

An inventory of consumption emissions is not a direct measurement of an individual resident's consumption or behavior. Instead, EcoDataLab uses a model (a series of complex calculations) to estimate consumption and emissions attributable to the lifestyles of residents of a city, using a combination of real-world consumption or emissions data where available, along with predictions based upon household characteristics, as well as regional and national averages.

This model is based upon an approach first developed by the CoolClimate Network
at the University of California, Berkeley, and published extensively in multiple
scientific journals.

We must also note that methodologies can and will change

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Moreover, while the technological infrastructure may be in place to track food purchases per household in New York City, accessing the purchase data from credit and debit card purchases is no small intrusion into personal privacy, and arguably a violation of one or more data privacy laws, particularly the Gramm-Leach-Bliley Act2.

Within Gramm-Leach-Bliley are requirements for financial institutions, including providers of debit and credit cards and related merchant services, to safeguard “non-public personal information”3, or NPI.

Financial institutions are required to take steps to protect the privacy of consumers’ finances under a federal law called the Financial Modernization Act of 1999, also known as the Gramm-Leach-Bliley Act. The FTC is one of the federal agencies that enforces provisions of Gramm-Leach Bliley, and the law covers not only banks, but also securities firms, and insurance companies, and companies providing many other types of financial products and services.

Most importantly, the ability to share this information is supposed to be fairly limited4.

If you receive NPI from a nonaffiliated financial institution, your ability to reuse and redisclose that information is limited. The limits depend on how the information is disclosed to you. It does not matter whether or not you're a financial institution.

Substantially, disclosure of NPI is limited to what is necessary to conduct the ordinary course of business. Relaying purchase data along with personal identification to establish the relevant “household” to EcoDataLab or the Amex/C40 partnership would almost certainly be a violation of this requirement.

Whether New York City or New York State could pass legislation to authorize the sharing of that data within Gramm-Leach-Bliley is a legal question I will not attempt to answer here, other than to note that such legal license for the data collection very likely would be required.

Regardless of what laws would be necessary to circumvent established privacy laws, it takes no great leap of imagination to contemplate the possibility of either the New York City Council or the New York State Legislature passing the necessary laws (whether such laws could withstand Constitutional scrutiny is another matter).

Thus, even though New York City presumably is not currently tracking per-household food purchases, the initiatives announced by Mayor Adams appear to establish the necessary foundation for such tracking in the future, with only the requisite enabling legislation currently missing. Mayor Adams and Commissioner Aggarwala arguably have already voiced an intent to seek such enabling legislation, or something very similar to it.

Indeed, much like the wasteful and unnecessary FedNow payments service, New York City’s initiatives with EcoDataLabs and the Amex/C40 partnership demonstrate how utterly unnecessary a “digital dollar” is for those wanting to monitor and micromanage American life. Bit by bit, byte by byte, the digital and surveillance infrastructures continue to be erected that would fulfill all the social policy objectives of a programmatic “digital dollar”—and all done out in the open, right under the noses of the American public.

The FedNow service is proof positive that the Federal Reserve—and, by extension, the US government—does not need to “weaponize” the dollar via a CBDC. With FedNow, it is already weaponizing the means by which people spend their dollars in furtherance of their own lives, their own liberty, and in pursuit of their own happiness.

New York City may not have “weaponized” food purchases in a similar fashion—yet.

What should concern everyone is just how little additional effort would be needed for Mayor Adams to do exactly that.

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Dementia Joe is the latest exemplar of this principle, given his recent nonsense about using the 14th Amendment to resolve the debt ceiling talks with the GOP.

President Biden on Sunday said he believes he has the authority to use the 14th Amendment to unilaterally address the debt ceiling, but he acknowledged potential legal challenges could still lead the nation to default if he went that route.

While it has never seemed likely that his handlers had ever bothered to read the Constitution or the Amenmdents, this bit of ignorant illogic is among the silliest things to emerge from 1600 Pennsylvania Avenue with the exception of Dementia Joe himself.

In brief, not only does the 14th Amendment not give him license to void the debt ceiling, but it actually compels him to avoid default on the debt. If the US should through some burst of incompetence manage to miss a payment on the debt, the President can and should be impeached and removed from office, along with the Vice President and the whole of his Cabinet.

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The text in the 14th Amendment that gives rise to such effusions of pure nonsense is the first sentence in Section 4:

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.

The President has hinted before at using this supposed loophole to bypass Congress and void the debt ceiling altogether.

“I have been considering the 14th Amendment, and the man I have enormous respect for, Larry Tribe … thinks that it would be legitimate,” Biden told reporters after a meeting with congressional leaders on the debt ceiling.

“But the problem is it would have to be litigated,” Biden continued. “And in the meantime, without an extension, it would still end up in the same place.”

“Larry Tribe” is, of course, Harvard law professor Lawrence Tribe, who firmly but erroneously believes that the 14th Amendment gives the President unilateral power to act to in effect negate the debt ceiling—which he seems to believe is somehow unconstitutional.

Gazette: So how can a law passed by Congress in 1917 establishing a debt ceiling decide which debts are valid and should be paid and which are less valid, and can be put off?

Tribe: In my view, a debt ceiling law can’t legitimately do that. But there’s a catch. By leaving that law in place and threatening for the first time ever not to raise the ceiling as needed to pay all the debts it has already created, Congress can cause economic crises by pointing to that ceiling and generating panic because nobody can say for sure what would happen when the ceiling is breached.

From 1789 to 1917, Congress incurred debts pursuant to statutory authorizations, levying taxes and also borrowing money from time to time. When Congress authorized an individual bond issue, typically for a stated purpose, the Treasury Department could borrow money pursuant to that authorization.

That cumbersome process was replaced in 1917 with a statute generally described as the debt limit or the borrowing ceiling. It permits the Treasury to issue bonds that would raise revenue that could then be used for any lawful purpose — up to whatever total Congress had previously specified. The statute’s original purpose was to simplify things, not to create a tool that could be used to create uncertainty and chaos.

Throughout this process, both before 1917 and up to the present, Section 4 of the 14th Amendment has hovered in the background, promising the world that the U.S. could always be counted on to pay its debts in full — as long as those debts had been authorized by law.

The 1917 law in question was the Second Liberty Bond Act1, which, among other things, amended the US code2 by both authorizing the Treasury to issue general obligation bonds (as opposed to bonds issued for a specific spending item or project), and by capping the value of all bonds issued.

The face amount of obligations issued under this chapter and the face amount of obligations whose principal and interest are guaranteed by the United States Government (except guaranteed obligations held by the Secretary of the Treasury) may not be more than $14,294,000,000,000, outstanding at one time, subject to changes periodically made in that amount as provided by law through the congressional budget process described in Rule XLIX [1] of the Rules of the House of Representatives or as provided by section 3101A or otherwise.

That debt limit has been raised periodically, the most recent being at the end of 20213.

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, <<NOTE: 31 USC 3101 note.>> That the limitation under section 3101(b) of title 31, United States Code, as most recently increased by Public Law 117-50 (31 U.S.C. 3101 note), is increased by $2,500,000,000,000.

Tribe’s thesis is notionally correct: the plain reading of the text of Section 4 of the 14th Amendment is that the United States categorically will pay its lawfully authorized debts.

Where Professor Tribe—and every other advocate of this foolhardy way to circumvent Congress—goes off the rails is he conflates legally obligated spending with debt.

Such legal authorizations can take the form of laws empowering the Treasury Department to issue bonds. But legal authorizations for debts incurred by the U.S. can also take the form of laws empowering other federal agencies to administer programs to promote the general welfare or provide for the nation’s defense, like those that fund the military or fund Social Security, Medicare and Medicaid, or the Affordable Care Act.

They also direct the executive branch to incur obligations, most of them to ordinary citizens and not in the form of Treasury bonds or other obligations formally created by the borrowing process that is subject to the statutory borrowing ceiling.

The key point is that the debt limit, or borrowing ceiling, just limits the amount the Treasury may borrow. It doesn’t cancel the obligations that happen to come due when the ceiling is reached.

The flaw in this logic is that “obligations” are not necessarily “debts”.

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To understand the distinction, I am going to substitute the term “liability” for “obligation”, thus bringing us within the argot of accounting but more importantly the law (bear with me…I am, after all, a recovering Cost Accountant!).

Merriam-Webster gives us a basic definition of liablity that seems to make it synonymous with “debt”.

something for which one is liable
especially : pecuniary obligation : debt

Indeed, Merriam-Webster’s definition of “debt” would seem to confirm this.

something owed : obligation

However, when we apprehend these terms as terms of art within the law, we have to apply a more precise legal definition4.

The term liability refers to a broad spectrum of things a person may be held responsible for. This may be a legal liability, a financial liability, or other responsibility. An example of liability includes the legal obligation to pay a debt, or to pay for damages an individual has caused someone else. Liabilities are also counted in finances as debits on the ledger. To explore this concept, consider the following liability definition.

Definition of Liability

Noun

1. The state of being liable, or responsible, for something

2. An obligation, debt, or responsibility

3. Something that serves as a hindrance or disadvantage

Legally speaking, when we speak of debts, we are referring to “indebtedness”5.

Indebtedness is the state of being in debt, or owing money to someone else. When someone is in debt, it means that he has borrowed money, or received goods or services, with a promise to pay the sum back. Someone can be in debt for bills that are due now, as well as bills that he knows will be due in the future. For example, indebtedness can refer to someone’s mortgage, or a car purchase on credit. To explore this concept, consider the following indebtedness definition.

Definition of Indebtedness

Noun

1. The state of owing someone else money

2. The amount of someone’s debt

In most situations, making this distinction between debts and liabilities/obligations might seem an almost Clintonian level of word-parsing. However, it is crucial to understanding the proper interpretation of the 14th Amendment’s text.

In short, “debt” means there is an incurred obligation to actually transfer a sum of money, whereas a liability encompasses a broader spectrum of obligations. For example, a bank records its customers’ deposits as “liabilities” even though there is no obligation to transfer a sum of money until the customer chooses to withdraw from his or her deposits with the bank; prior to a withdrawal demand, the bank's obligation is to safeguard the customer’s deposits.

Thus all debts are necessarily obligations, but not all obligations are necessarily debts.

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Nor is this distinction a phantom of my own invention. The US Treasury’s Bureau of The Fiscal Service makes the same distinction6.

The national debt is the amount of money the federal government has borrowed to cover the outstanding balance of expenses incurred over time. In a given fiscal year (FY), when spending (ex. money for roadways) exceeds revenue (ex. money from federal income tax), a budget deficit results. To pay for this deficit, the federal government borrows money by selling marketable securities such as Treasury bonds, bills, notes, floating rate notes, and Treasury inflation-protected securities (TIPS). The national debt is the accumulation of this borrowing along with associated interest owed to the investors who purchased these securities. As the federal government experiences reoccurring deficits, which is common, the national debt grows.

The national debt—i.e., the “public debt”—is whatever has been borrowed to spend on various government programs—the “legal authorizations” Lawrence Tribe mistakenly lumps in with the public debt.

This is the crux of the matter: the “public debt” is what has been borrowed in order to administer the various programs and projects authorized by Congress through various legislative acts. This is the obligation for which the 14th Amendment rejects any challenge to its validity.

Moreover, this reading of the 14th Amendment, including the distinction between debt (i.e., what has been borrowed) and “legal authorization”/obligation, is necessitated by the Constitution’s empowerment of the Congress to borrow money (Article 1 Section 8 Clause 2):

To borrow Money on the credit of the United States

This reading is reinforced by the requirement that monies be expended from the Treasury only pursuant to appropriate acts of Congress (Article 1, Section 9, Clause 7):

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

Follow the Constitutional structure: The Treasury disburses money in accordance with Congress’ enacted will, by which the many programs and functions of the government are administered. When needed and/or appropriate, Congress may authorize the Treasury to borrow that money. Spending on government programs is thus always a Treasury disbursement of money, and the public debt is merely one source of that money (the other being government revenues from taxes, tariffs, and various other fees and levies).

To lump the programs enacted by Congress in with the actual borrowings is notionally at odds with the ordinary understanding of what borrowing is. An employee does not view himself as having loaned his wages to his employer, even though there is no doubt in his mind that his employer owes him those wages. Similarly, many businesses manage their cash flows by borrowing funds in the short term to satisfy obligations such as wages—the “debt” is the borrowing, not the wages, even though the wages are a liability/obligation.

The wages example also shows why Tribe’s conflation is untenable. As a matter of basic business management, an employer does not merely pay his employee upon demand for his wages. The employer will want to see a time sheet, or time card, or some other record establishing that the work has been done and the wages are in fact owed.

Similarly, a contractor might tender an invoice for services rendered, but before that invoice is payed it has to be approved—the accounting department of a business has to confirm that the invoice is legitimate, that it is appropriate, and that it is timely. Government offices are no different; invoices for services rendered must be approved before they are paid. By Tribe’s construction of the 14th Amendment, the approval process itself can never be performed, as no one is allowed to question the “validity” of the obligation (i.e., the invoice).

As there is much waste in government that attends upon bureaucrats not questioning enough the validity of contractors’ invoices and other bills, it is utterly absurd to suggest any Constitutional interpretation which would make all such invoices uncontestable. Yet that is exactly what Professor Tribe’s interpretation of Section 4 of the 14th Amendment would require.

Surely even Harvard Law professors have a better understanding of the law than this!

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The 1935 Supreme Court Case Perry v United States7 further supports this particular understanding of the “public debt”. In this case, plaintiff Perry, having purchased a Liberty Bond during WW1, the issuance of which explicitly provided that “The principal and interest hereof are payable in United States gold coin of the present standard of value.”

However, prior to the bond being called in by the government, Congress passed the “Gold Repeal Joint Resolution”8, which in 1933 suspended government payments in gold. Perry, undeterred, demanded payment in gold coin per the terms of the bond. Citing the resolution, the Treasury refused to pay Perry in gold. Perry sued, claiming the resolution was unconstitutional, and the case went before the Supreme Court in 1935.

While the Court did not challenge the right of the Congress to regulate money value, including whether or not payment in gold would be allowed, it did draw the line at Congress’ seeming ability to rewrite contractual terms passed by previous sessions.

here is no question as to the power of the Congress to regulate the value of money -- that is, to establish a monetary system, and thus to determine the currency of the country. The question is whether the Congress can use that power so as to invalidate the terms of the obligations which the government has theretofore issued in the exercise of the power to borrow money on the credit of the United States. In attempted justification of the Joint Resolution in relation to the outstanding bonds of the United States, the government argues that "earlier Congresses could not validly restrict the 73rd Congress from exercising its constitutional powers to regulate the value of money, borrow money, or regulate foreign and interstate commerce;" and, from this premise, the government seems to deduce the proposition that, when, with adequate authority, the government borrows money and pledges the credit of the United States, it is free to ignore that pledge and alter the terms of its obligations in case a later Congress finds their fulfillment inconvenient. The government's contention thus raises a question of far greater importance than the particular claim of the plaintiff. On that reasoning, if the terms of the government's bond as to the standard of payment can be repudiated, it inevitably follows that the obligation as to the amount to be paid may also be repudiated. The contention necessarily imports that the Congress can disregard the obligations of the government at its discretion, and that, when the government borrows money, the credit of the United States is an illusory pledge.

In brief, the government argued that Congress had the ability to repudiate contracts and to unilaterally rewrite contracts to avoid onerous contract obligations.

Suffice it to say, the Court rejected this view of the Constitution.

We do not so read the Constitution. There is a clear distinction between the power of the Congress to control or interdict the contracts of private parties when they interfere with the exercise of its constitutional authority and the power of the Congress to alter or repudiate the substance of its own engagements when it has borrowed money under the authority which the Constitution confers. In authorizing the Congress to borrow money, the Constitution empowers the Congress to fix the amount to be borrowed and the terms of payment. By virtue of the power to borrow money "on the credit of the United States," the Congress is authorized to pledge that credit as an assurance of payment as stipulated, as the highest assurance the government can give -- its plighted faith. To say that the Congress may withdraw or ignore that pledge is to assume that the Constitution contemplates a vain promise, a pledge having no other sanction than the pleasure and convenience of the pledgor. This Court has given no sanction to such a conception of the obligations of our government.

Per the Fourteenth Amendment, the Gold Repeal Joint Resolution was found to be an unconstitutional excess of Congressional authority.

The Fourteenth Amendment, in its fourth section, explicitly declares: "The validity of the public debt of the United States, authorized by law, . . . shall not be questioned." While this provision was undoubtedly inspired by the desire to put beyond question the obligations of the government issued during the Civil War, its language indicates a broader connotation. We regard it as confirmatory of a fundamental principle which applies as well to the government bonds in question, and to others duly authorized by the Congress, as to those issued before the Amendment was adopted. Nor can we perceive any reason for not considering the expression "the validity of the public debt" as embracing whatever concerns the integrity of the public obligations.

We conclude that the Joint Resolution of June 5, 1933, insofar as it attempted to override the obligation created by the bond in suit, went beyond the congressional power.

In Perry, the Court relied on an earlier ruling in the Sinking Fund Cases9 to confirm the principle of the sanctity of government contracts.

The United States are as much bound by their contracts as are individuals. If they repudiate their obligations, it is as much repudiation, with all the wrong and reproach that term implies, as it would be if the repudiator had been a state or a municipality or a citizen. No change can be made in the title created by the grant of the lands, or in the contract for the subsidy bonds, without the consent of the corporation.

Simply put, the government is required to stand by the terms of its contracts. As bonds and other debt instruments call for payments of interest and/or principal on specific dates, a default—a failure to pay on the specified date—is by definition an abrogation of the contractual elements of the bond.

However, not every government payment is occasioned by a contract. There are no contracts signed for paying out various types of welfare benefits, for example. One need only consider both the expansion of Medicaid benefits as a result of the COVID-19 pandemic and their subsequent withdrawal to see that such benefits are hardly tied to a formal contract. To argue otherwise would be to contradict the reasoning of both Perry and the Sinking Fund Cases that the US government has no power to alter the terms of an agreement.

Even the dysfunctional reality of government shutdowns argues against the sweeping interpretation of “the public debt”. If all authorized government expenditures counted directly as “the public debt”, then every government shutdown already violates the Fourteenth Amendment’s prohibition against challenging the “validity of the public debt.”

During the 2018 government shutdown, the IRS recalled as many as 26,000 workers to work even though their pay would be delayed.

But when the IRS briefed Congress behind closed doors Thursday, it told staffers that 14,000 of the 26,000 workers recalled to work without pay at IRS processing and call centers across the country didn’t show. About 9,000 of the workers weren’t reachable while 5,000 had claimed financial hardship, the House Democratic staffer told ABC News.

If the “validity” of workers’ paychecks cannot be questioned, then the government has already violated the 14th Amendment prohibition multiple times.

Similiarly, the 2018 government shutdown impacted the Supplemental Nutritional Assistance Program.

Funding for the food stamp program — called the Supplemental Nutrition Assistance Program — is mandatory, but the government's ability to distribute the benefits to its 42 million recipients could be impacted, the CRFB said. 

That's because a stopgap funding bill would be needed to authorize the Department of Agriculture  to send out benefits for 30 days after the start of a shutdown. In the 2018 shutdown, the USDA avoided that issue by paying food stamp benefits early in January of 2019. If it hadn't done so before the 30-day window expired, the agency wouldn't have been able to pay the benefits in March, according to the CRFB. 

If the “validity” of food stamp benefits cannot be questioned, then this disruption was also a violation of the 14th Amendment prohibition.

Tribe's broad view of what constitutes “the public debt” is not a view that is currently held by anyone in Washington. Indeed, the Fourteenth Amendment is raised only when the debt ceiling is at issue, which means all of Washington already views “the public debt” as those amounts already borrowed, not those amounts for which an obligation exists. Lawrence Tribe’s effort to extend the sanctity of government contracts to all authorized payments thus flies in the face of judicial reasoning as well as existing government practice.

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As the established judicial view of Section 4 of the Fourteenth Amendment is to establish the sanctity of government contracts, instead of the Fourteenth Amendment empowering the President to breach the debt ceiling on his own initiative, in fact it obligates the President to ensure bond payments are made timely.

We must not forget that it is absolutely inconceivable for the President of the United States to presume the power to borrow money on the credit of the United States. The Constitution explicitly reserves that power to the Congress. The Second Liberty Loan Act and subsequent legislation dealing with the debt ceiling authorize the Treasury to borrow within specified parameters—those parameters being the limit imposed on total indebtedness—and no more.

Voiding the debt ceiling already written into law would be a blatant and unconstitutional seizure of Congress’ explicit authority ro borrow money. Even if Congress could delegate the borrowing authority entirely to the President, the very existence of debt ceiling means it has not done so.

The Constitution instead obligates the President to faithfully execute the nation’s laws.

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

It takes no great leap of legal scholarship to see that bonds which Congress has by law authorized must be paid timely by the President as part of his discharge of his duty.

As the Fourteenth Amendment affirms the sanctity of lawfully-incurred debt, neither the President nor the Secretary of the Treasury have the option of declining to make scheduled bond payments. As we have seen in government shutdowns, other payments may be delayed without a repudiation occurring, but not bond payments.

This means that, when the debt ceiling is reached, the Secretary of the Treasury and the President are legally obligated to make the required payments of bond interest and principal, even if that means postponing other payments.

As I have noted previously, this arguably should have been the Administration’s barganing tactic with the GOP for getting a debt ceiling increased passed by Congress.

Moreover, this clear legal requirement means that, by threatening default, the Administration is actually choosing to do so—and doing so illegally. The Fourteenth Amendment means this is not a choice the government gets to make. In the event the debt ceiling is reached, the Treasury will have to prioritize its payments. This is not current practice, but it would be legal requirement in a debt ceiling scenario.

Contrary to what the Treasury pretends—to what the Administration as a whole pretends—the government has always had both the legal and administrative capacity to prioritize its payments. This was the view established by the Government Accountability Office in 198510. What Tribe and the Administration fatuously overlook is that Section 4 of the Fourteenth Amendment means the Treasury also has the legal duty to prioritize payments.

The Administration’s threat of default must be understood for what it is—an illegal, unconstitutional, and untenable threat to engage in deliberate dereliction of duty. If the debt ceiling is not raised, the Treasury is obligated to prioritize its various payments, with the legal requirement that scheduled payments on the public debt must be made first. The Treasury is not constrained from making the required payments on the public debt merely because the debt ceiling is reached.

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When it was first released, I shared a link to the report on Notes, along with a simple question regarding the substance of the report:

Having had the opportunity to do a first pass at a deeper dive into the report, I can begin to answer that question—and unfortunately the answer is “Yes”. The report fails to address some key questions about the SARS-CoV-2 virus while providing relatively thorough documentation on others. It commits the cardinal reporting sin of obscuring some aspects of the larger narrative while overemphasizing other aspects.

The first thing we must acknowledge about the report is that it is, in its conception and execution, a political document serving a political agenda. It is focused on China to the exclusion of all else, and ultimately holds only China as culpable for the creation and lab release (accidental or otherwise) of the pathogen into the wider world2.

This report draws on numerous sources published in English and Chinese to examine the posture taken by the authorities of the People’s Republic of China (PRC) toward biosecurity, biosafety, and public health starting from 2018 until 2021. Its primary focus is on tracing the authorities’ response to the emergence of SARS-CoV-2, the virus that causes COVID-19, as it progressed from a localized outbreak to a national epidemic to a full-fledged pandemic.

To be clear, China’s role in the spread of COVID-19 can be identified and, at least in Marco Rubio’s eyes, shown to be a deciding factor in the emergence of COVID-19 as a new global “pandemic”. However, China is not the whole of the story. More on that later.

Senator Rubio made a clear choice to focus exclusively on China for his investigation into the origins of COVID-19 and the SARS-CoV-2 virus. We can see this plainly in the framing questions he uses to set up the narrative arc of the report3:

The following questions served as the frame of reference for this report:
• Prior to the pandemic, were biosafety conditions at laboratories studying bat
coronaviruses in Wuhan subpar and potentially dangerous? If so, were the
managers of these labs aware of such problems?
• Were senior leaders in the ruling CCP and PRC government concerned about
biosecurity and biosafety as general matters, and/or particularly concerned about
the biosafety conditions at laboratories studying bat coronaviruses in Wuhan?
• Is there evidence that a laboratory incident occurred in Wuhan concurrent with
the initial outbreak of SARS-CoV-2 in 2019?
• When did the CCP leadership at the local and central levels first become aware
that there was an outbreak of infectious disease? Did they know it was caused by
a novel pathogen? If so, did they suspect a zoonotic spillover or a laboratory
incident was most likely responsible for that outbreak?

Straightaway we can see that Senator Rubio, for better or worse, is explicitly targeting China’s role in the emergence and spread of the SARS-CoV-2 virus worldwide, and thus in China in particular.

In particular, Rubio calls China out for their lack of transparency regarding the information they possess(ed) about the SARS-CoV-2 virus.

Awareness of a laboratory incident seemed to have shaped the CCP leadership’s response to SARS-CoV-2: a response characterized by strict controls of information, obfuscation, misdirection, punishment of whistleblowers, and the destruction of key clinical evidence. A closer look at the early days of the pandemic revealed that even when Beijing shared information with the international community – such as the initial notice of a pneumonia outbreak, the later admission that a novel coronavirus was its causal agent, and the publishing of its genomic sequence – it did so belatedly. In all three cases, Beijing possessed the relevant information for some time before sharing it, and disclosed it only when compelled to do so by circumstances beyond its control.

However, while Senator Rubio does go on to present his case for asserting this, in the process he overlooks the demonstrable failures of corporate media in the West and in the United States especially to adequately report on the emergence of the virus in late December 2019 and early January 2020.

Yet the legacy media has been tardy if not downright derelict in covering several significant aspects of this ongoing event. It was alternative media and social media that first called attention to the existence of the virus, officially named 2019-nCoV (also referenced as nCoV2019). It has been the alternative media and social media that has highlighted serious shortcomings and outright deceptions by Chinese officials and the state-run media.

China’s success in being less than transparent with what it knew and knows about the SARS-CoV-2 virus has without a doubt been facilitated by the multiple failures of corporate media to adequately report on the earliest days of the global outbreak.

The Rubio report also takes great pains to lay a conceptual foundation for the chronology of events it advances, by discussion and documenting China’s efforts in “biosecurity” and “biosafety”.

A key concept discussed in this report is shengwu anquan (生物安全), a Chinese term that can encompass, depending on the context in which it is used, what is commonly meant by the two English terms “biosecurity” and “biosafety.”

However, the report omits an important context by acknowledging the extent to which these issues are a priority among Western nations, and (again) in the United States especially.

There is no mention in the report of the Nunn-Lugar programs in biological “threat reduction” which came about in the 1990s and is a forerunner of today’s biosecurity infrastructure.

Ultimately, the distinction between what constitutes “bioweapons research” versus “threat reduction research” is a rather Clintonian parsing of the terms.

Regardless of the terms, the research activities involved target dangerous pathogens. Regardless of the terms, the research demands the storage of dangerous pathogens. Regardless of the terms, the research invites if not demands the strictest of scrutiny to ensure it remains within the parameters of the BWC.

Moreover, regardless of the requirements of the BWC, it is a proven fact that virtually all nations conduct research involving dangerous pathogens. Russia certainly does, and the COVID pandemic is absolute proof that China does as well—and COVID is, like the Ames anthrax strain, a grim reminder how easy it is for threat reduction to become threat creation.

This much is certain: once a dangerous pathogen escapes the confines of the lab, the matter of bioweapons research versus threat reduction research quickly becomes a distinction without a difference.

From these dubious origins within 1990s programs to address disposing of the former Soviet Union’s stockpiles of weapons of mass destruction comes nearly the whole of the US biosecurity infrastructure, which has evolved and expanded greatly beyond its Nunn-Lugar origins4. However, even the more recent lineages of the US biosecurity infrastructure are missing from Rubio’s report—there is no mention of the US DoD Biological Threat Reduction Program or the Department of State’s BioSecurity Engagement Program.

This evolution of Western and US biosecurity initiatives is crucial to understanding even China’s biosecurity efforts, for it is here that we begin to see names and entities that play a recurring role in establishing even just the China chronology:

It was Kadlec who formed the Bipartisan Commission on Biodefense in 2014 and began the planning of his Manhattan Project in earnest. Those involved with him in this commission included Tom Ridge, the first Homeland Security Secretary, Donna Shalala, a former Health and Human Services (HHS) Secretary, Dr Margaret Hamburg, a former Food and Drug Administration (FDA) commissioner, Scooter Libby, formerly of Project for a New American Century (PNAC), William Karesh, the vice president of EcoHealth Alliance and an adviser to the WHO on reforms to the International Health Regulations (IHR), and Kenneth Wainstein, now the Under Secretary of Homeland Security for Intelligence and Analysis.

EcoHealth Alliance, of course, would also figure prominently in multiple research initatives within China and within the Wuhan Institute of Virology dating back to the mid 2010s if not sooner. EcoHealth was able to become a player in China’s “biosecurity” and “biosafety” initiatives because it was built up as a player in these sort of programs by the US programs first.

Where the Rubio report is strongest is in laying out a fairly comprehensive chronology of Chinese biosecurity research initiatives going back a few years before the initial 2019 outbreaks in Wuhan. China’s intensive research into bat coronavirus is fairly well documented here.

Regretably, Senator Rubio fails to acknowledge that much of the original research work into China’s bat coronavirus projects was first done by alternative media site ZeroHedge. This is a shame, for Rubio’s report serves as yet more corroboration of ZeroHedge’s early reporting on the potential lab connections and possible lab origins of the SARS-CoV-2 virus.

This interest in the truth about the CCPVirus' origins would get ZeroHedge falsely accused by BuzzFeed and then subsequently banned from Twitter, but their journalism has withstood the test of time--researchers at the Wuhan Institute of Virology had not only studied bat coronaviruses for some time, but were actively seeking graduate students to participate in that research as late as December, 2019.

Thus, while the report is strongest on the chronology of Chinese policies and actions surrounding the Wuhan Institute of Virology, that chronology also serves to highlight a fundamental flaw in the report—it is not at all the groundbreaking report Rubio claims it to be.

The office of U.S. Senator Marco Rubio (R-FL) released a groundbreaking new report on the origins of the Covid-19 pandemic. Titled “A Complex and Grave Situation,” the report is a 328-page political chronology of the SARS-COV-2 outbreak.

The report does present considerable evidence outlining the documented and potential connections between the WIV and SARS-CoV-2. However, it ultimately is a retread, covering ground numerous other commentators (including myself) have already covered.

Much of China’s mendacity in late 2019 and early 2020 has already been reported and established—which mendacity goes a long way towards supporting a thesis that, whether or not China weaponized the virus itself, China absolutely weaponized the global outbreak which followed.

While China quite naturally denies any culpability by the Wuhan Institute for either the genesis of the CCPVirus or its release into the world, their denials are fundamentally tainted by one unalterable truth: they are actively concealing as much information about the CCPVirus and its origins as they can.

• The WHO states China is refusing to allow the WHO to participate in China's own internal investigation into the origins of the CCPVirus.

• China has been deleting all online research on the CCPVirus and its origins.

• At a time when China was still denying human-to-human transmission, Chinese firms were literally stripping all the medical supplies from other nations that they could, buying them by the ton and shipping them back to China.

• China knew of human-to-human transmission of CCPVirus for at least six days in January while still professing to the WHO that there was "no evidence" of this (for its part, the WHO was informed of this by Taiwan in December and ignored the warning in favor of China's false statements on this issue).

• In mid February, China issued a "wartime order" to put a stop to "lab leakage" of deadly pathogens.

• In mid February, China dispatched Chen Wei, the nation's top biochemical weapons defense expert, to take control of the BSL4 (P4) lab at the Wuhan Institute.

• On February 10 or 11, China arrested citizen journalists Fang Bin and Chen Quishi for attempting to report on the CCPVirus outbreak in Wuhan.

• In a speech President Xi Jinping gave to party leaders on February 3, he acknowledged having been apprised of the severity of the outbreak in early January, weeks before disclosing this to the world.

• China ignored its own "state of the art" warning system for emerging pandemic pathogens.

• China forbade researchers in early January from publicly discussing CCPVirus.

• China ordered labs to destroy their biological samples and stop all research into the CCPVirus in December.

• China suppressed for over two weeks data indicating an outbreak of a SARS-like pathogen obtained in late December, 2019.

• China systematically undercounted and hid CCPVirus cases from the world.

• Nor should the world ever forget the tragic case of Li Wenliang, who on December 30 attempted to warn the world about the CCPVirus, only to be silenced and humiliated by the Chinese government. Dr. Li would die from the virus on February 6.

For the report to largely rehash materials already established makes it a bit of a disappointment—it is a comprehensive overview of the chronology of COVID as it pertains to China, but it completely ignores other elements at least as crucial.

Nowhere, for example, does the body of the report mention Anthony Fauci (Fauci’s name does appear in a single endnote), who as head of the National Institutes’ of Health National Institute of Allergies and Infectious Diseases (NIAID), helped steer federal grant dollars through EcoHealth Alliance to the Wuhan Insititute of Virology.

Leaked documents have contradicted Fauci numerous times, and it is now clearly established that the research at Wuhan did involve gain-of-function research.

Dr. Anthony Fauci was absolutely adamant that the National Institutes of Health has never funded dangerous research on bat viruses in the Chinese lab suspected of being the source of the COVID-19 pandemic, when he was questioned by Republican Sen. Rand Paul two weeks ago.

“Senator Paul, with all due respect, you are entirely and completely incorrect that the NIH has not ever and does not now fund ‘gain of function’ research in the Wuhan Institute of Virology,” Fauci said in the fiery Senate hearing on May 11.
He couldn’t have been more certain.

Until he wasn’t certain a few hours later.

That very afternoon, Fauci admitted to “a very minor collaboration as part of a subcontract of a grant we had a collaboration with some Chinese scientists,” during an appearance at Poynter.org’s “festival of fact checking.”

It’s like being a little bit pregnant. The NIH either funded so-called gain-of-function research to juice up bat coronaviruses in China, or it didn’t. Turns out it did. And it did it by exploiting a loophole in an Obama-administration ban on the Frankenstein research put in place in 2014.

Nor is Fauci’s role in the contrived paper “The Proximal Origin of SARS-CoV-25” even acknowledged, much less explored. This paper was a significant effort to deny a laboratory origin of the SARS-CoV-2 virus, thereby exonerating the WIV from any culpability in its emergence.

SARS-CoV-2 is the seventh coronavirus known to infect humans; SARS-CoV, MERS-CoV and SARS-CoV-2 can cause severe disease, whereas HKU1, NL63, OC43 and 229E are associated with mild symptoms⁶. Here we review what can be deduced about the origin of SARS-CoV-2 from comparative analysis of genomic data. We offer a perspective on the notable features of the SARS-CoV-2 genome and discuss scenarios by which they could have arisen. Our analyses clearly show that SARS-CoV-2 is not a laboratory construct or a purposefully manipulated virus.

For Senator Rubio to argue SARS-CoV-2 emerged at the Wuhan Institute of Virology while ignoring Anthony Fauci’s documented efforts to discredit that very thesis is a curious and disappointing choice.

Prevailing academic standards for authorship required Fauci's role be acknowledged. This did not happen. Moreover, the paper's authors privately shared their suspicions the virus was in fact a lab construct.

Did Anthony Fauci participate in a scientific fraud? There is at least some evidence to suggest he did.

Fauci’s only appearance in the Rubio report is in an endnote capturing a statement by him downplaying the potential for asymptomatic transmission:

In all the history of respiratory-borne viruses of any type, asymptomatic transmission has never been the driver of outbreaks. … Even if there’s a rare asymptomatic person that might transmit, an epidemic is not driven by asymptomatic carriers.

Fauci’s complete comment on this point appeared in a press briefing on January 28, 2020, and is available on YouTube here.

Again, Rubio’s disregard of Fauci’s comments in this regard are a curious omission, as the report itself argues that China’s downplaying of asymptomatic transmission was a significant event in the overall chronology:

Despite this evidence, PRC authorities continued to discount asymptomatic transmission, and Beijing’s resistance to acknowledging the role played by asymptomatic transmission was, with great consequence, echoed elsewhere as other countries began to confront the pandemic. One recent study estimated that more than one-third of SARS-CoV-2 infections are asymptomatic, and when pre-symptomatic cases are included, silent infections rise to as much as 42.8 percent of all infections. Another recent comparison of household studies confirmed that individuals with asymptomatic infections transmitted SARS-CoV-2 to close contacts, although to a somewhat lesser extent than those with symptomatic infections.

At a minimum, Fauci’s statement of January 28, 2020, is a prime exemplar of the “great consequence” Rubio attributes to a Chinese effort to discount asymptomatic transmission. To bury this detail in an endnote ends up a curious whitewashing of Fauci’s own documented role in the global COVID-19 outbreak and the government policies which emerged in response. This statement deserved more visibility in the report than it received.

Separately, while the Rubio report does mention Peter Daszak, of the EcoHealth Alliance, Daszak’s role in attempting to squelch the “lab leak hypothesis” is treated almost dismissively:

Peter Daszak of the EcoHealth Alliance, a longtime WIV collaborator who resorted to a variety of shenanigans to squelch discussion of the lab leak theory once the pandemic began, gave at least three interviews in which he claimed that the WIV had not fully sequenced the sample until January 2020 when its similarity to SARS-CoV-2 was noticed and it was pulled out of a freezer for closer examination. Daszak told Wired in February 2020, “At the time [it was originally collected], we were looking for Sars-related viruses, and this one was 20 percent different. We thought it’s interesting, but not high-risk. So we didn’t do anything about it and put it in the freezer.” He repeated the same story to the New York Times Magazine in April. In July, Daszak told the Sunday Times that there was no significance in the renaming (and the failure to disclose the renaming) and called those who raised questions about the matter “the conspiracy folks.”

What the report does not mention is that said “shenanigans” included organizing a “letter of support” by multiple researchers in February of 2020 condemning the already rising theories of a lab origin for SARS-CoV-2, insisting that on a zoonotic origin for the virus6.

We stand together to strongly condemn conspiracy theories suggesting that COVID-19 does not have a natural origin. Scientists from multiple countries have published and analysed genomes of the causative agent, severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), and they overwhelmingly conclude that this coronavirus originated in wildlife, as have so many other emerging pathogens.

So ham-handed was this effort that the Lancet would later be forced to publish a “clarification7” in June of 2021 acknowledging Peter Dasak’s obvious conflict of interest.

In February, 2020, 27 public health experts co-authored a Correspondence in The Lancet (“Statement in support of the scientists, public health professionals, and medical professionals of China combatting COVID-19”), supporting health professionals and physicians in China during the early stages of the COVID-19 pandemic. In this letter, the authors declared no competing interests. Some readers have questioned the validity of this disclosure, particularly as it relates to one of the authors, Peter Daszak. In line with guidance from the International Committee of Medical Journal Editors, medical journals ask authors to report financial and non-financial relationships that may be relevant to interpreting the content of their manuscript. There may be differences in opinion as to what constitutes a competing interest. Transparent reporting allows readers to make judgments about these interests. Readers, in turn, have their own interests that could influence their evaluation of the work in question. With these facts in mind, The Lancet invited the 27 authors of the letter to re-evaluate their competing interests. Peter Daszak has expanded on his disclosure statements for three pieces relating to COVID-19 that he co-authored or contributed to in The Lancet—the February, 2020, Correspondence, as well as a Commission Statement and a Comment for the Lancet COVID-19 Commission

The addendum was a point of some humiliation for the medical journal.

This particular “shenanigan” was pivotal in China’s sustaining the narrative on the zoonotic origin of the SARS-CoV-2 virus, which makes Rubio’s silence on the topic curious at the very least, and arguably mendacious.

Similarly, Ralph Baric, of the University of North Carolina Chapel Hill, appears in the body of the report only once (but is mentioned four more times in the endnotes), in conjunction with Peter Daszak’s proposal for Project DEFUSE.

This, too, is a curious omission, as Ralph Baric’s name emerges routinely in multiple investigative efforts into the origin of SARS-CoV-2, such as Igor Chudov’s connecting of many dots in support of the thesis that Project DEFUSE in fact moved forward and that SARS-CoV-2 was the result of that effort, thanks in no small part to the efforts of Ralph Baric.

Igor’s Newsletter

Sars-Cov-2 was Lab Made Under Project DEFUSE

This long article will explain how Sars-Cov-2, the virus that causes COVID-19, was created as a result of intentional laboratory work. It will also show that the blueprint for Sars-Cov-2 was described in the “Project DEFUSE” proposal by Peter Daszak, which was preceded by years of relevant lab work and virus manipulation…

Read more

4 years ago · 434 likes · 255 comments · Igor Chudov

Project DEFUSE tested the result in transgenic (humanized) mice, having human ACE2 receptors in their lungs. The mice had to be humanized: as we know, Sars-Cov-2 was able to infect people, but not wild mice, at the beginning of its history. (Side Note: Later on, another famous virologist, Ralph Baric of UNC, worked on allowing Sars-Cov-2 to infect regular — not transgenic — mice. And guess what, somehow the later variants of Sars-Cov2 (Omicron) do infect mice, a development that may or may not be related to Baric’s research. Baric was also on the email thread with Fauci shown above.).

Far from being a “groundbreaking” report, the Rubio report is, in the end, merely a reasonably thorough and documented treatment of China’s role in the origin of the SARS-CoV-2 virus. It stands as a reminder that the Wuhan Institute of Virology was hardly a bit player in this strange and still-unfolding psychodrama, but it does so at the expense of the much larger narrative surrounding SARS-CoV-2, a narrative which not merely invites but demands investigation and inquiry of the US National Institutes of Health as well as the whole of the international biosecurity/biosafety apparatus.

As we have seen with the Faucists’ constant obsession with playing God with viruses, biosecurity and biosafety are a true globalist enterprise.

Sadly but not surprisingly, we now know that Boston University was not the only research facility playing mix-n-match genes with variants of the SARS-CoV-2 virus.

Imperial College London has also been engaging in recreational “research” by splicing spike proteins from either the Omicron or Delta variants of the virus onto the original Wuhan strain.

China is a player in this, but only because the NIH, NIAID, BTRP, BEP, DTRA, EcoHealth, Peter Daszak, Ralph Baric, and Anthony Fauci are also players in this. Arguably, China’s role is less significant in the wider corruption demonstrably on display than that of Pfizer, whose cynical and company-wide attitudes towards pharmaceutical regulation typifies everything that is wrong with Western medical establishments today.

Note: Pfizer is also not mentioned in the Rubio report.

By not paying even perfunctory lip service to these other important threads in an extremely complex narrative, the Rubio report presents a very one-sided and thus inaccurate depiction of the origins of the SARS-CoV-2 virus. By focusing on China’s role to the virtual exclusion of all else, Senator Rubio presents an inference that there are no other significant actors involved, no other sinister roles to be played—a stance that is very much at odds with what has already been amply documented regarding the SARS-CoV-2 virus’ origins.

Is the Rubio report a whitewash of the COVID pandemic or is it an important truth telling?

Ultimately, it is an injudicious mixture of both, which renders the report a dubious, deceptive, and highly problematic perspective on the China aspects of COVID “pandemic”.

The first bill, HB4903, calls for the creation of a gold/silver-backed digital currency (known as a “stablecoin”1) with the gold or silver housed at the Texas Bullion Depository.

As of this writing, HB4903 has been voted out of committee and is awaiting a vote by the full House. Its companion bill within the Texas Senate, SB2334, is pending in committee.

A second bill, HJR146, is a proposed amendment to the Texas Bill Of Rights ensuring the right of people to hold whatever forms of money they wish—including cash, coin, bullion, as well as digital moneys and even privately produced “scrip”(currency other than legal tender2)—”shall not be infringed.”

As of this writing, HJR146 has passed the House and is awaiting action by the Texas Senate.

Setting aside for now the politics of whether these bills should pass into law (and, in the case of HJR146, amend the Texas Constitution), their existence brings us to a subtle yet important question—who decides what is and is not a “dollar” in the United States? Who decides what we shall use for money?

The Texas Constitution is understandably silent on the matter, as the United States Constitution arguably establishes the legal framework for coin and currency within the United States—for what constitutes a “dollar”, legally speaking.

The power of the US Congress to coin “Money” and establish its uniform value is explicitly granted to the Congress within Article 1, Section 8, Clause 5 of the Constitution:

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

Clause 6 empowers the Congress to punishment of any who counterfeit the “Securities and current Coin”.

Similarly, Article 1, Section 10, prohibits to the States the power to declare anything but gold and silver coin as legal tender.

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

The validity of currency as legitimate “lawful” money and “legal tender” within the United States has more than once come before the Supreme Court, chiefly over the question of whether paper currency was a permissible substitute for specie (coin).

One of the earliest such cases, Hepburn v Griswold3, rejected the notion that currency could automatically substitute for specie when a contract did not stipulate that currency was an acceptable tender—the default presumption within US law prior to 1862 was that payments had to be made in specie.

Contracts for the payment of money, made before the act of 1862, had reference to coined money, and could not be discharged, unless by consent, otherwise than by tender of the sum due in coin. Every such contract, therefore, was in legal import a contract for the payment of coin.

One interesting passage within Hepburn seemingly rejected the potential for currency (e.g., Federal Reserve notes) to be legitimate legal tender within the United States:

It has not been maintained in argument, nor indeed would anyone, however slightly conversant with constitutional law, think of maintaining that there is in the Constitution any express grant of legislative power to make any description of credit currency a legal tender in payment of debts.

It is worth noting that the power of the Congress to issue credit currency—in the present time, Federal Reserve notes—was not at issue in Hepburn, but rather its authority to require such notes be accepted as legal tender in payment of debts contracted before the enactment of statutes authorizing the creation of such notes. In Hepburn, the Court concluded that Congress had no such authority.

We are obliged to conclude that an act making mere promises to pay dollars a legal tender in payment of debts previously contracted, is not a means appropriate, plainly adapted, really calculated to carry into effect any express power vested in Congress, that such an act is inconsistent with the spirit of the Constitution, and that it is prohibited by the Constitution.

The Court would later reverse itself on this point in what has come to be known as “The Legal Tender” cases4—principally Knox v Lee—and declare that Congress could decree credit currency to be legal tender for all debts, regardless of when the debts were contracted.

In the Legal Tender Cases, the Court expressly affirmed that any claimed impairment of contracts—such as what might constitute valid modes of payment for debts—that defeated “legitimate” government power could not withstand, that the power of government in all such instances must prevail.

As in a state of civil society property of a citizen or subject is ownership, subject to the lawful demands of the sovereign, so contracts must be understood as made in reference to the possible exercise of the rightful authority of the government, and no obligation of a contract can extend to the defeat of legitimate government authority.

The authority of the government to issue credit currency and to declare such currency legal tender was thus held to supersede any claim of right to insist that contracted debts be settled in specie unless credit currency was deemed acceptable by prior agreement.

This argument rests strongly on the so-called “Elastic Clause” at the end of Section 8, which gives Congress blanket authority to enact any law “necessary and proper” to effectuating the powers explicitly delineated to Congress in the rest of Section 8.

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Thus did the Legal Tender Cases judicially establish the power of the US Government to not only issue credit currency but also to preemptively declare such credit currency legal tender in all circumstances. That such power is not found within the explicit text of the Constitution was not held to be an insurmountable obstacle to the assertion of such power.

In 1974, an appellate ruling in Milam v United States established a final coda to the legal tender question insofar as the Federal Judiciary was concerned5.

While we agree that golden eagles, double eagles and silver dollars were lovely to look at and delightful to hold, we must at the same time recognize that time marches on, and that even the time honored silver dollar is no longer available in its last bastion of defense, the brilliant casinos of the houses of chance in the state of Nevada. Appellant is entitled to redeem his note, but not in precious metal. Simply stated, we find his contentions frivolous.

Thus by 1974 the status of legal tender within the United States had been effectively inverted from the original position of metallic coin being the default legal tender and paper currency being the exception. Paper currency is now the default legal tender and metallic coin is now the exception.

Whether this view of currency and legal tender rests upon a sound reading of the text of the Constitution I leave for readers to decide for themselves.

This established legal status of currency is what is being challenged by the mere initiation of the Texas bills.

HJR146 challenges the current federal view of currency and legal tender directly, by empowering Texas residents to use any form of money they desire, and elevating that desire to a fundamental right under the Texas Constitution:

The right of the people to own, hold, and use a mutually agreed upon medium of exchange, including cash, coin, bullion, digital currency, or privately issued scrip, when trading and contracting for goods and services shall not be infringed. No government shall prohibit or encumber the ownership or holding of any form or amount of money or other currency. Nothing in this section shall be construed as restricting this state from choosing the medium of exchange the state will accept for payments made to the state.

If this bill should pass, and if the requisite referendum before the people should pass come November, then Texans arguably are declared to have the right to decide for themselves what is and is not “money” for them. “Legal tender”, within the language of this proposed amendment, becomes whatever two contracting parties agree to accept as legal tender.

Superficially, the current state of federal law regarding legal tender arguably does not preclude contracting parties agreeing to payment in terms other than cash6.

The purpose and function of legal tender is for courts to determine whether it is a satisfactory payment for monetary debt. Each jurisdiction can define its specific limits of what is legal tender but generally it is anything when offered (tendered) and accepted in order to pay off the debt. Although the original creditor who is owed money is not necessarily obligated to accept the tendered payment, the specific act of tendering the payment absolves the debt.

However, HJR146 would also preclude any subsequent declaration by the Congress that legal tender was exclusively a specific currency or monetary form—including perhaps the rightly derided Central Bank Digital Currency, commonly known as a “digital dollar”.

For the Congress or the Federal Reserve to unilaterally require US citizens to use either a traditional dollar or a digital variant would demand that this proposed amendment to the Texas Constitution be voided. There is no way the Congress could impose a digital dollar and allow the text of HJR146 to remain embedded in the Texas Constitution.

Similarly, HB4903 leans heavily on the exception within Article 1 Section 10 of the Constitution for states to make gold and silver coin legal tender within their boundaries.

ESTABLISHMENT. (a) As authorized by Section 10, Article 1, United States Constitution, to the extent the comptroller determines practicable, the comptroller shall:

(1) establish and provide for the issuance of gold and silver specie; and

(2) establish and issue a digital currency based on gold and silver that represents a particular fraction of a troy ounce of gold or silver, as applicable, held in trust as provided by this chapter.

Per Section 10, states may not coin their own money—Texas cannot set up its own mint and strike its own metallic coin for use as legal tender—but, inasmuch as they are barred from declaring anything but gold and silver coin to be legal tender, the obvious implication is that states can explicitly declare gold and silver coin to be legal tender.

Can a digital currency based on a specified amount of gold or silver evade the prohibition upon coining money and still fall within the permissibility of a state declaring gold and silver coin to be legal tender?

The one thing about this that is certain is that the text of the US Constitution must prevail in every instance. The Supremacy Clause in Article 6 makes this plain.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Neither HB4903 nor HJR146 may stand if they are in violation of the US Constitution. One need only recall Chief Justice John Marshall’s memorable rhetoric from Marbury v Madison7 to understand why this must be:

Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.

Are the Texas bills “repugnant” to the US Constitution? Should they pass into law there will no doubt be those who will argue that they are, that the Constitution reserves the power to decide what is and is not money to the national government and not the state governments.

Yet even the most legalistic of such arguments ultimately must bend to the reality that “money” will be whatever people choose to accept in the ordinary transacting of ordinary business. Indeed, the documented apathy most peoples around the world have displayed towards CBDCs is absolute proof that the ultimate declaration of what is and is not “money” will always lie with the people.

However, we should note that with the advent of crypto currencies and their central banking cousins, CBDCs, “currency” is morphing into a concept that embraces electronic/digital forms as well. Still, even digital currencies, crypto or otherwise, work as currencies because people are willing to accept them as currencies. If a proposed form of currency is rejected as “unacceptable” by the greater mass of people, it will fail as a currency, no matter how coercive or repressive the regime which attempts to implement it

We do not need to wonder if this is so. We have the evidences of the failures of the digital yuan in China, of the e-Naira in Nigeria, as well as the historical examples of peoples from Russia to Venezuela at various times opting to hold US dollars rather than their own local currencies, simply because they viewed the US dollar as the more trustworthy currency (a reality many critics of US monetary policy will no doubt find rich in irony).

Where people do not accept a particular currency, there is no power of government able to compel them to do so. If totalitarian China has been unable to force widespread use of its digital yuan, no outwardly democratic nation, whose government arguably has specified limits to its authority, has any hope of doing so.

Would the people of Texas accept a digital stablecoin backed by gold and silver? There is, of course, no way to fully answer that question short of passing HB4903. Yet the advancement of that bill through the legislative process suggests that there is at least some desire on the part of Texans for such an alternative.

That HJR146 is advancing through the legislature and may very well be a ballot item within the state of Texas come November strongly suggests that, at a minimum, Texans wish to decide for themselves what they will and will not accept as money, the Federal Reserve and its monetary madnesses be damned.

The current state of the law in this country is that the Federal Reserve decides what is and what is not valid “currency” within these United States. The Federal Reserve, for better or worse, defines what is and is not a “dollar”.

With bills such as the Texas bills being given consideration within a state legislature, the future state of the law may be something very different. Indeed, while the possibility is still extremely remote, if bills such as the Texas bills become commonplace, “de-dollarization” will not happen outside of the US, but within it.

For the love of money is a root of all kinds of evil: which some reaching after have been led astray from the faith, and have pierced themselves through with many sorrows. — 1 Timothy 6:10

There is a certain irony in a Substack which purports to focus on facts, data, and evidence starting with a bit of Scripture. However, it is an irony with a purpose, which I hope to make clear.

Even without the ongoing bloodbath in the US banking sector, money has been very much in the news of late.

• We are told that Central Bank Digital Currencies (CBDCs) are sure to be a major issue in next year’s Presidential election contest.

  “Expect this CBDC issue to become a presidential campaign talking point,” said Ron Hammond, director of government relations at Blockchain Association. “Perfect intersection of fear of government, China and finance collapse with the bank crisis.”

• There is no shortage of commentators tut-tutting over the US dollar’s “inevitable” decline as global financial hegemon—with “de-dollarization” the latest talking point fad.

  The unintended consequence of the US’ decision to weaponise the dollar and use it as part of the extreme sanctions regime on Russia has been to shock the world’s central banker community and undermine confidence in the dollar as the default foreign exchange currency of trade and reserves.

  The result has been to give impetus to the long-mooted desire to break the dollar’s monetary hegemony, so that there is for the first time some real political will behind making the change.

• More than a few readers of this Substack have voiced concerns that the current economic turmoil will lead to the imposition of a dystopian, Orwellian, CBDC here in the US.

  And that will lead to "digital money" in which we all will bank with GOOGLE or some similar on-line entity which will be controlled ultimately by China. At least the little "people."

Money, it seems, is a news focus of the moment. As Pandemic Panic was the narrative of 2020 and 2021, money is at the core of the narratives being advanced for 2023. CBDCs in particular are very much on people’s minds, both by people who would encourage and advocate for them and by those who reject and condemn them.

Thus the “love of money” becomes a useful framing even for a fact-based and data-driven view of that narrative. The Biblical precaution against the “love of money” actually sets up many of the reasons not only for why monetary artifices such as CBDCs are not succeeding where they are being tried, but also for why it is not possible for them to succeed.

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One point I do need to make clear: it is my thought that, even if the Federal Reserve should impose a CBDC on the US, it will fail as a currency replacement for the non-digital dollar. This does not mean that I believe the Federal Reserve will choose against implementing a CBDC, merely that I do not believe Federal Reserve has even a snowball’s chance in Hell of making it work.

To understand why this is, we must begin with fundamental definitions. Most importantly, we must be clear on what money—as well as currency—is, and it is not.

Money, simply put, is anything people use to pay for goods and services1.

Money is anything that serves as a medium of exchange. A medium of exchange is anything that is widely accepted as a means of payment. In Romania under Communist Party rule in the 1980s, for example, Kent cigarettes served as a medium of exchange; the fact that they could be exchanged for other goods and services made them money.

There is nothing about money which requires or even recommends it be based on or in computer technology of any kind.

“Currency” is generally apprehended to be the paper money and metallic coins we traditionally associate with “money”.2

But something need not have intrinsic value to serve as money. Fiat money is money that some authority, generally a government, has ordered to be accepted as a medium of exchange. The currency—paper money and coins—used in the United States today is fiat money; it has no value other than its use as money. You will notice that statement printed on each bill: “This note is legal tender for all debts, public and private.”

However, we should note that with the advent of crypto currencies and their central banking cousins, CBDCs, “currency” is morphing into a concept that embraces electronic/digital forms as well. Still, even digital currencies, crypto or otherwise, work as currencies because people are willing to accept them as currencies. If a proposed form of currency is rejected as “unacceptable” by the greater mass of people, it will fail as a currency, no matter how coercive or repressive the regime which attempts to implement it3.

What makes something money is really found in its acceptability, not in whether or not it has intrinsic value or whether or not a government has declared it as such. For example, fiat money tends to be accepted so long as too much of it is not printed too quickly. When that happens, as it did in Russia in the 1990s, people tend to look for other items to serve as money. In the case of Russia, the U.S. dollar became a popular form of money, even though the Russian government still declared the ruble to be its fiat money.

The first hurdle that CBDCs need to overcome—and which they are failing to overcome, is that of acceptability.

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The most glaring example of this has been China’s CBDC experiment, the digital yuan. Even after two years of adoption efforts by Beijing—perhaps the most totalitarian regime on the planet—the digital yuan has gained little traction.

Xie Ping, a former PBOC research director and current finance professor at Tsinghua University, made critical public comments about China’s central bank digital currency (CBDC) at a recent university conference, according to a Dec. 28 Caixin report.

Xie noted that cumulative digital yuan transactions had only crossed $14 billion (100 billion yuan) in October, two years after launch. “The results are not ideal,” he said, adding that “usage has been low, highly inactive.”

To make the situation even worse for the digital yuan, transaction volume at the end of 2021 was reported at $13 billion—meaning for all of 2022 there were merely $1 billion worth of digital yuan transactions in the world’s second largest economy.

Yet China’s experience is not at all unique. Nigeria was the first African nation to implement a CBDC in 2021, yet fewer than 1% of Nigerians have used it—even though more than 50% of Nigerians use or hold cryptocurrencies.

Not that Nigeria’s central bank has not tried to incent people to use the digital currency, also known as the eNaira.

A year after launching Africa’s first digital currency, Nigeria’s central bank is turning to the nation’s three-wheeler taxi operators to speed the adoption of the eNaira, as regulators across the world scrutinize its every move.

It’s offering a 5% discount to drivers and passengers of the motorized rickshaws -- known locally as Keke Napep -- who use the eNaira. It’s the latest attempt to kickstart the digital currency, which has so far attracted just one in 200 people in the continent’s most populous country.

The most fundamental weakness of the eNaira is this lack of acceptability—many Nigerian merchants apparently do not take the digital currency in payment.

There may be a dearth of merchants willing to accept the eNaira, according to London-based Varun Paul, CBDC and market infrastructure director at institutional crypto custody platform Fireblocks. Paul, who previously worked at the Bank of England as an economist and head of its fintech hub, is now leading Fireblocks’ efforts to build out infrastructure for CBDC integration.

Concerns over acceptability appear to be one reason India is proceeding very tentatively on its CBDC project. Although the project has gathered some 50,000 users and roughly 5,000 merchants, the most populous country in the world apparently is not opening the implementation project up to new users at this time.

Announcing the first public milestones of India’s digital currency at a policy press conference, RBI deputy governor Rabi Sankar stressed that the government plans to proceed with CBDC testing in the smoothest way possible.

“We have our targets in terms of users, in terms of merchants. We will go slowly,” Sankar stated, noting that the RBI doesn’t want to push CBDC developments without having full awareness of its potential impact.

The latest announcement adds up to data from an official digital rupee application, which suggests that the pilot is taking no more users. According to data from the digital rupee app by the ICICI Bank, India’s CBDC program is full at the time of writing, suggesting that more users would be able to join the trial at a later date.

At a minimum, India’s hesitancy regarding its digital rupee suggests users and merchants alike are somewhat skeptical of the CBDC, and are not really prepared to accept it as money.

Even in countries without actual CBDCs, there are strong movements against accepting them as money. In Switzerland, a petition drive by the Free Switzerland Movement claims it has amassed sufficient signatures for a popular vote on its proposal to amend the country’s currency laws to guarantee physical currency will always be available.

Swiss citizens will get the chance to try to ensure their economy never becomes cashless, a pressure group said, after collecting enough signatures on Monday to trigger a popular vote on the issue.

The Free Switzerland Movement (FBS) says cash is playing a shrinking role in many economies, as electronic payments become the default for transactions in increasingly digitised societies, making it easier for the state to monitor its citizens' actions.

It wants a clause added to Switzerland's currency law, which governs how the central bank and government manage the money supply, stipulating that a "sufficient quantity" of banknotes or coins must always remain in circulation.

Clearly, the acceptability of CBDCs has a way to go!

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Of course, the mere fact that CBDCs are not accepted as money today is not a bar to central banks proceeding with efforts to implement them tomorrow. Despite the lackluster results elsewhere, Russia is proceeding with its own digital ruble project.

The Bank of Russia is preparing to roll out the first consumer pilot for the nation’s central bank digital currency (CBDC) on April 1, 2023.

Russia’s central bank is set to soon debut the first real-world digital ruble transactions involving 13 local banks and several merchants, first deputy governor Olga Skorobogatova said.

While China’s digital yuan has been less than successful, its existence is prompting Japan to push the Bank of Japan to at least begin laying the conceptual groundwork for a digital yen.

While the political attention has yet to translate into any other direct investment, it is also likely to keep the Bank of Japan (BOJ) under pressure to shift away from its cautious, baby-step approach toward issuing a digital yen, analysts say.

"We must think about what could happen to Japan's national security if other countries move ahead on CBDC," said Takayuki Kobayashi, a minister overseeing economic security - a new role created under Prime Minister Fumio Kishida's administration.

"Japan must speed things up so it's ready to issue a digital yen any time," he said.

But this begs a question: is it really sound monetary policy for any central bank to pursue new forms of currency merely because “everyone else is doing it”? Does it really make sense that CBDCs are made rational and useful simply because they are the popular fad of the moment? Are CBDCs truly something to be desired (“loved”?) by central banks merely because they are popular with other central banks?

While popularity certainly serves to overcome the acceptability hurdle, Gresham’s Law4 cautions against mere acceptance as sufficient to gauge a currency’s worthiness.

Sir Thomas Gresham lived from 1519 to 1579 and wrote about the value and minting of coins while working as a financier and later founded the Royal Exchange of the City of London. When Henry VIII changed the composition of the English shilling, replacing a substantial portion of the silver with base metals, citizens separated the English shilling coins and hoarded the coins containing more silver which were worth more than their face value.

Both currency types were liquid and available simultaneously for use as acceptable forms of exchange. Gresham observed that bad money was driving out good money from circulation. Bad money is a currency with equal or less value than its face value. Good money has the potential for a greater value than its face value. People will choose to use bad money first and hold onto good money. The Scottish economist Henry Dunning Macleod attributed this law to Gresham in the 19th century.

When spending money, people will prefer to use their “bad” money first, in order to retain their “good” money. As a result, “bad” money—money which has been debased in value or has some other defect which impairs its utility—is more likely to be in wide circulation, as the “good” money is stored away. Popularity arguably suggests a currency qualifies as “bad” money if people choose to spend it rather than hold it.

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Why would a CBDC be “bad” money?

Consider how a central bank would implement a digital currency, and in particular consider the characteristics the Federal Reserve ascribes to a conceptual CBDC in its 2022 paper5 on the subject.

As noted above, for the purposes of this discussion paper, CBDC is defined as a digital liability of the Federal Reserve that is widely available to the general public. Today, Federal Reserve notes (i.e., physical currency) are the only type of central bank money available to the general public. Like existing forms of commercial bank money and nonbank money, a CBDC would enable the general public to make digital payments. As a liability of the Federal Reserve, however, a CBDC would not require mechanisms like deposit insurance to maintain public confidence, nor would a CBDC depend on backing by an underlying asset pool to maintain its value. A CBDC would be the safest digital asset available to the general public, with no associated credit or liquidity risk.

Straight away, the Federal Reserve is differentiating a CBDC from the balance in a bank checking account or on a non-bank debit card. Money held in a bank checking account is “commercial bank money” in the argot of the Federal Reserve. Money on a non-bank debit card is “nonbank money”. Physical currency is, within the United States, the only form of “central bank money” in circulation.

The Federal Reserve’s thesis for a CBDC is that, as a direct liability of the Federal Reserve, a CBDC would not be at risk of a bank collapse such as the recent First Republic Bank failure. The Federal Reserve is, presumably, the “safest” bank in the US.

However, as the recent bank failures have demonstrated, credit risk and liquidity risk are not the only types of risk. There is also interest rate risk, and it is this type of risk which precipitated the downfall of Silicon Valley Bank, Signature Bank of New York, and First Republic Bank.

Interest rate risk6 arises in a financial environment characterized by rising interest rates.

Interest rate risk exists in an interest-bearing asset, such as a loan or a bond, due to the possibility of a change in the asset's value resulting from the variability of interest rates.

If a CBDC is allowed to earn interest while it is on deposit with the Federal Reserve, any time the Federal Reserve raises interest rates, the CBDC loses value in much the same way bank securities portfolios have lost value.

If a CBDC is not allowed to earn interest while it is on deposit with the Federal Reserve, the CBDCs value is intrinsically diminished relative to commercial bank money on deposit with a bank balance.

In both scenarios, however, the way the individual depositor can protect himself against interest rate risk is the same: spend the CBDC. This is no different than the way banks today would mitigate interest rate risk on their securities portfolios: they must sell the securities.

A currency which is better spent than held is the essence of “bad” money.

Would the Federal Reserve wish to allow CBDC deposits to earn interest? Potentially it might not have any choice. We only have to look at the crisis facing commercial banks today to see why.

Ever since the Federal Reserve began raising the federal funds rate, banks have been losing deposits, which have flowed to higher-yielding money market accounts and non-bank deposit accounts. One only needs to compare average interest rates between bank savings accounts and money market accounts to see why the flows have happened.

However, even without the interest rate imbalance, consumer price inflation pressures were resulting in an increasing number of consumers in this country living paycheck to paycheck.

The upward trend lines up reasonably well with the rise in inflation.

Without wandering into the weeds of why inflation is happening or why more consumers are living paycheck to paycheck, the key point for this discussion is that these consumers are spending their money rather than holding it.

Back in the 1960s, economist Milton Friedman identified this pattern of spending rather than holding as the fundamental economic behavior driving consumer price inflation7.

Given that people are so stubborn about the amount they hold in the form of money, let us suppose that, for whatever reasons, the amount of money in a community is higher than people want to hold at the level of prices then prevailing. It does not for our purposes matter why, whether because the Government has printed money to finance expenditures or because somebody has discovered a new gold mine, or because banks have discovered how to create deposits. For whatever reason, people find that although on the average they would like to hold, let us say, the 7 weeks’ income that they hold in India, they are actually holding, say, 8 weeks’ income. What will happen? Here again it is essential to distinguish between what happens to the individual and what happens to the community. Each individual separately thinks he can get rid of his money and he is right. He can go out and spend it and thereby reduce his cash balances. But for the community as a whole the belief that cash balances can be reduced is an optical illusion. The only reason I
can reduce my cash balances in nominal terms is because somebody else is willing to increase his. One man’s expenditures are another man’s receipts. People as a whole cannot spend more than they as a whole receive. In consequence, if everybody in the community tries to cut the nominal amount of his cash balances, they will on the average be frustrated. The amount of nominal balances is fixed by the nominal quantity of money in existence and no game of musical chairs can change it. But people can and will try to reduce their cash balances and the process of trying will have important effects. In the process of trying to spend more than they are receiving, people will bid up the prices of all sorts of goods and services. Nominal incomes will rise and real cash balances will indeed be reduced, even though nominal balances, the number of rupees, are not affected. The rise in prices and incomes will bring cash balances from 8 weeks’ income to 7 weeks’ income. People will succeed in achieving their objective, but by raising prices and incomes rather than by reducing nominal balances. In the process, prices will have risen by about an eighth. This in a nutshell and somewhat over-simplified is the process where by changes in the stock of money exert their influence on the price level. It is over-simplified because there is a tendency to over-shoot, followed by successive readjustments converging on the final position, but this complication does not affect the essence of the adjustment process.

Just as there is an incentive/pressure to spend money today (or at least the lack of an incentive to hold money), a similar pressure and incentive would exist for a CBDC.

Without the opportunity to earn interest, consumers deposits of CBDC would be subject to the same spending pressures—without interest to rationalize holding rather than spending—a CBDC will be inherently inflationary, for the same reasons spending is incentivized within the current state of the US financial system.

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Additionally, the Federal Reserve has acknowledged the capacity of a CBDC to allow government micromanagement of personal savings and spending patterns8.

A non-interest-bearing CBDC, for example, would be less attractive as a substitute for commercial bank money. In addition, a central bank might limit the amount of CBDC an end user could hold.

The likelihood the Fed would be tempted to do just that would also drive spending rather than holding and saving. Again, the way an individual can mitigate the perceived negative impacts of a CBDC would be to spend it straight away—to treat the CBDC as “bad” money

Encouraging spending is the acme of inflationary monetary policy. Every time.

When one examines every one of the features (and presumed “benefits”) of CBDC acknowledged by the Fed, the potential for people to view such features negatively ultimately would encourage spending—to get rid of the unwanted currency—and thus would drive inflation.

The Federal Reserve admits that a CBDC by its very nature would accrete personal data about spending patterns, personal tastes and preferences, even movements. Anyone wishing to avoid being so catalogued would not want to hold CBDC in any account—and would therefore spend it as quickly as they could just to be rid of it.

The Federal Reserve admits that a CBDC would be designed to inhibit money laundering and similar financial crimes. The criminal element of society would definitely not want a CBDC just for this reason alone—and again would spend it just to be rid of it.

The Federal Reserve defines a CBDC as a liability of the Federal Reserve. A checking account is a liability of the bank holding the funds, and a debit card account is a liability of the nonbank entity providing the card. Any entity—bank, nonbank, fintech firm, et cetera—offering such services is thus sidelined by a CBDC, which the Federal Reserve also acknowledges9.

Banks currently rely (in large part) on deposits to fund their loans. A widely available CBDC would serve as a close—or, in the case of an interest-bearing CBDC, near-perfect—substitute for commercial bank money. This substitution effect could reduce the aggregate amount of deposits in the banking system, which could in turn increase bank funding expenses, and reduce credit availability or raise credit costs for households and businesses. Similarly, an interest-bearing CBDC could
result in a shift away from other low-risk assets, such as shares in money market mutual funds, Treasury bills, and other short-term instruments. A shift away from these other low-risk assets could reduce credit availability or raise credit costs for businesses and governments.

Holding deposits is the foundation of all banking services, whether performed by a bank, a money market fund, a fintech firm, or any other entity. As both an accounting and legal matter, it is not possible for any entity—including the Federal Reserve—to hold deposits if there is no liability attached.

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Liability and obligation are the essence of all financial transactions. The liability of the bank to the depositor is what enables the bank to lend, while the liability of the borrower is what enables him to pay for a house, for goods, or for the materials with which to make goods. The liability of the buyer to the seller of anything is fully one half of every transaction.

Without liability, there can be no money. Without liability, finance stops. As much as the Federal Reserve offers anodyne words about “intermediation”, because a CBDC is the liability of the central bank and of no other bank, there is no financial role left for a bank to play. The Federal Reserve even acknowledges this in a back-handed manner10.

The Federal Reserve Act does not authorize direct Federal Reserve accounts for
individuals, and such accounts would represent a significant expansion of the Federal Reserve’s role in the financial system and the economy. Under an intermediated model, the private sector would offer accounts or digital wallets to facilitate the management of CBDC holdings and payments. Potential intermediaries could include commercial banks and regulated nonbank financial
service providers, and would operate in an open market for CBDC services. Although commercial banks and nonbanks would offer services to individuals to manage their CBDC holdings and payments, the CBDC itself would be a liability of the Federal Reserve. An intermediated model would facilitate the use of the private sector’s existing privacy and identity-management frameworks; leverage the private sector’s ability to innovate; and reduce the prospects for destabilizing disruptions to the well-functioning U.S. financial system.

This is actually a paradox. Remember, a deposit by definition is never the bank’s money—that is why it counts as a liability of the bank11.

A deposit is money held in a bank account or with another financial institution that requires a transfer from one party to another.

With federal reserve notes as well as commercial bank and nonbank money, deposits are fungible12 once deposited, which is to say one block of funds is indistinguishable from (and interchangeable with) another block of funds. By the Federal Reserve's own description of how CBDCs function, CDBC deposits could never be fungible—the accretion of personal data within the CBDC itself precludes this possibility at a structural level—and thus the capacity of banks to generate loans off CBDC deposits would be impaired if not eliminated.

Moreover, even in a CBDC regime, for a bank to make a loan, the liability has to go to the bank, not to the central bank. Thus, even if a CBDC merely stands in as an electronic variant of today’s paper federal reserve note (and therefore fungible), the bank loan is still not central bank money but commercial bank money—the very monetary phenomenon a CBDC is seeking to replace. Wherever a liability is created in finance, so, too, is money, by definition13.

Where does money come from? How is its quantity increased or decreased? The answer to these questions suggests that money has an almost magical quality: money is created by banks when they issue loans. In effect, money is created by the stroke of a pen or the click of a computer key.

The only way to avoid commercial bank money is to avoid commercial banks. If the Federal Reserve does not intend to eliminate commercial banking and thus nationalize the entire US banking sector, it cannot offer a non-fungible CBDC. Commercial banking or non-fungible CBDC are the choices—there is not a third.

Even with a non-fungible CBDC, however, people would still generate money by simply trading digital “wallets” holding the CBDC. Just as people already do with gift cards—prepaid debit cards holding a specified amount of money—a transferable digital wallet would start out as a service to be offered and quickly mutate into yet another (non-CBDC) form of money.

This paradox goes a long way towards explaining why people simply do not embrace CBDCs when they are offered—why they have been a failure in China and in Nigeria and elsewhere: Central bank digital currencies, despite all the glowing phrases used by the Federal Reserve, don’t actually solve any monetary problem people have. By their very nature, CBDCs create additional problems for people.

Because of this paradox, CBDCs can never be anything but “bad” money—which is to say they can never provide anything but monetary inflation as people rush to rid themselves of CBDC holdings by spending them (and refusing to accept them).

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Which brings me back to the verse from 1 Timothy. The failures, the wasted efforts, the inflation, the monetary disruptions and dislocations that a CBDC would have to bring all arise from the error of a central bank in hyperfocusing on money itself.

Regardless of one’s ethical or spiritual framework, money is never the point of anything. As a medium of exchange, money is simply a means to an end. It can never be anything more than that.

The Federal Reserve’s own statement of its purpose and mission—its reason for being—concedes this fundamental point.

The Federal Reserve System is the central bank of the United States. It performs five general functions to promote the effective operation of the U.S. economy and, more generally, the public interest. The Federal Reserve

• conducts the nation’s monetary policy to promote maximum employment, stable prices, and moderate long-term interest rates in the U.S. economy;

• promotes the stability of the financial system and seeks to minimize and contain systemic risks through active monitoring and engagement in the U.S. and abroad;

• promotes the safety and soundness of individual financial institutions and monitors their impact on the financial system as a whole;

• fosters payment and settlement system safety and efficiency through services to the banking industry and the U.S. government that facilitate U.S.-dollar transactions and payments; and

• promotes consumer protection and community development through consumer-focused supervision and examination, research and analysis of emerging consumer issues and trends, community economic development activities, and the administration of consumer laws and regulations.

Everything the Federal Reserve sets out to do is notionally about facilitating people pursuing something other than money. Even the much-flawed FedNow service about to be initiated is outwardly a facilitation of transactions, and the reasons for opposing it arise from the inevitable ramifications of having a central bank provide that particular mode of facilitation.

CBDCs depart from this basic structure of central banking. CBDCs are not a facilitation of transactions, but an intrusion into them—CBDCs make money an end rather than merely a means. Far from providing any sort of “frictionless” payments, CBDCs are a source of friction. Anything that creates problems in finance is a source of friction, and CBDCs are an endless source of problems for finance.

While it may seem counterintuitive to tell a bank, even a central bank, not to “love” money, the unavoidable truth is that if central banks focus not on the money but on the exchanges money facilitates, on actually making it easier for people to trade and transact business, that is where even a central bank would deliver a real benefit to people.

Even for a bank, money is merely the means. Even for a bank, money is never the end. Even for a central bank, these things are true. Because these things are true, anything that puts the focus on money is inevitably false. Because these things are true, CBDCs are inevitably a false promise for any central bank to make.

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As was announced last month, the Federal Reserve has now begun the formal certification of the initial participants in the system, which is meant to speed payment resolution to real-time or near real-time.

The Federal Reserve Banks are developing the FedNow Service to facilitate nationwide reach of instant payment services by financial institutions — regardless of size or geographic location — around the clock, every day of the year. Through financial institutions participating in the FedNow Service, businesses and individuals will be able to send and receive instant payments at any time of day, and recipients will have full access to funds immediately, giving them greater flexibility to manage their money and make time-sensitive payments.

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More than a few people view the coming of the FedNow service as the first step towards the ultimate in government control over people—a digital (and therefore “programmable”) currency.

For its part, corporate media has been dutifully rolling out “fact checks” (which, of course, are nothing of the kind) blandly reassuring folks that the Fed is not looking to take control of your money and your spending habits with FedNow.

CLAIM: The Federal Reserve is launching a digital currency app, FedNow, that will eliminate physical cash.

AP’S ASSESSMENT: False. The Federal Reserve’s FedNow is a service that allows banks and credit unions to transfer funds more quickly. It’s not a form of currency, nor is it a move towards eliminating cash, the Board of Governors of the Federal Reserve System stated.

Across social media, the chattering class has been dutifully singing FedNow’s praises as a “game changer” in financial payments that will “transform” financial payment systems within the US.

The introduction of the FedNow Service has the potential to transform the U.S. payment landscape, offering real-time settlement capabilities that outpace traditional banking systems and rival popular P2P platforms. While the full impact of FedNow remains to be seen, its promise of increased efficiency, accessibility, and security could make it a game-changer in the world of digital payments.

Even the financial media has swung into action to defend FedNow from “misinformation”.

The problem with having the misinformation Eye of Sauron cast its gaze upon FedNow is that, as I said a moment ago, banks are in the process of deciding whether and when to join that network. There is no real way to know with certainty whether the musings of Twitter personalities are a viable proxy for attitudes of ordinary bank customers. But if that misinformed conflation between FedNow and a CBDC takes root in the minds of bank customers, it could turn a routine business decision about whether to join FedNow into a political decision with no right answer. 

This effusion of positive propaganda press suffers from just one basic flaw: it’s horse hockey. Yes, FedNow is likely to be a “game changer”, but for all the wrong reasons, which means that a bank’s decision to use FedNow is intrinsically a political decision, and it always has been. Whenever government seeks to reinvent a wheel, especially a monetary wheel, politics are part and parcel of the process.

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Is FedNow a “Central Bank Digital Currency”? Many people will say “Yes”, and can point to substantial reasons why they think this: it is a means of settling payments (which it is), it is digital (which it is) it is run by the central bank (which it is). At the risk of veering into Clintonian microparsing and wordsmithing, we should note, however, that the Automated Clearing House system is also a digital means of settling payments run by the central bank, and yet that is not treated as a CBDC.

Similarly, FedNow is also not a CBDC. Whether it is a precursor or a steppingstone to a CBDC is something the Federal Reserve more or less denies (in that artless mode of communication that seems to be a requirement for government bureaucracies). I leave it to the reader to decide how much faith to put in the Fed’s denials on this point.

Nicholas Anthony, policy analyst for the Cato Institute, provides a good analogy for differentiating FedNow from a CBDC set up by the Federal Reserve:

Astute eyes will likely recognize that FedNow does vaguely resemble a wholesale CBDC. Where a wholesale CBDC would be restricted to financial institutions for use during interbank settlement, FedNow would also be restricted to financial institutions. The difference, however, lies in their design. Where a CBDC is a currency, FedNow is a payment rail. If we think of dollars and cents as water, then FedNow is the plumbing that gets those dollars and cents where they need to go. In contrast, a CBDC would involve replacing the water itself in this analogy.

If we view FedNow as a “payment rail”, we immediately see one of the principal objections to the service: it is directly competing with privately-funded real-time payments initiatives, such as the RTP service offered by The Clearing House, Zelle, Venmo, and even PayPal.

Real time is becoming more and more of a reality. RTP, Zelle and other networks offer instant or near-instant payments today, and FedNow is promising to broaden access to real-time rails next year.

• RTP, the real-time payments system run by The Clearing House, launched about five years ago to address some of the shortcomings of the ACH system.

• ACH payments are sent in batches only at certain times, which isn’t ideal for certain kinds of transactions. (ACH is still the largest payment method, and has added more batch windows and doubled its same-day transfers in Q2.)

• “It's really hard to take a batch system and have it work in a real-time world,” James Colassano, SVP of product development and strategy at The Clearing House, told me. TCH built entirely new rails for RTP.

• RTP is designed to address the demands of consumers who are growing used to getting immediate payments. “If you want to be able to have a delightful customer experience, you can't wait for a batch run at the end of the day, or for transactions to settle two days later, right?” Colassano said.

There can be little doubt but that the Federal Reserve is muscling its way to solving a problem that either already has or is at least in the process of being resolved without the need for central bank interference.

There can also be little doubt but that there is no Constitutional authority for Congress to authorize any government agency to participate in private commerce as a peer of private banks. The powers of Congress with respect to commerce are limited to three broad areas, as enumerated in Article 1 Section 8 of the Constitution.

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

While one can with some credibility argue that regulating the value of the US dollar is the essence of monetary policy in a modern context, and thus that duty of the Federal Reserve is a legitimate power of Congress which Congress has delegated to the Federal Reserve, there is no argument to be made that “regulating” payment processing by electronic means (“regulating Commerce”) requires or permits Congress to act as a commercial entity. The very existence of services such as RTP, Zelle, Venmo, and Paypal are more than sufficient proof that payment processing is a commercial activity.

The US government is authorized by the Constitution to regulate such activity where it involves foreign nations and the several states, and that is the limit of its authority. The FedNow service greatly exceeds that authority.

Why is it doing this? Primarily because the Treasury Department under Donald Trump more or less told it to create such a system.

In its July, 2018, report to the President, “A Financial System That Creates Economic Opportunities Nonbank Financials, Fintech, and Innovation”, the Treasury Department under Treasury Secretary Steve Mnuchin recommended the Federal Reserve create the FedNow service.

Treasury recommends that the Federal Reserve move quickly to facilitate a faster retail payments system, such as through the development of a real-time settlement service, that would also allow for more efficient and ubiquitous access to innovative payment capabilities. In particular, smaller financial institutions, like community banks and credit unions, should also have the ability to access the most-innovative technologies and payment services.

Why the Federal Reserve needed to create such a service as opposed to working with banks and other services to address any regulatory hurdles inhibiting the development and evolution of services such as Venmo, Zelle and RTP is a question that the report never addresses. Nor does the report address the constitutional barriers to the Federal Reserve creating such a service.

The report does not even mention Venmo or Zelle, and its discussion of RTP is limited to three paragraphs buried deep in the report.

It even manages to give a bit of back-handed praise to RTP’s messaging system.

One of the key components of RTP is the secure messaging system that allows banks to communicate with payment messages. The messages are flexible, compliant with global messaging standards, and allow for immediate confirmation.

With private services such as RTP already in operation (RTP went live in 2017), FedNow is indisputably the recreation of a financial wheel—the unconstitutional recreation of a financial wheel.

Again, the constitutional approach to the challenges of real time payments is for the government to facilitate—i.e., get out of the way of private commerce—the development of robust commercial services to provide real time payments. The United States already has commercial services to deliver real time payments; if they are insufficiently robust the solution is not for 800-pound banking gorilla that is the Federal Reserve to stomp them into oblivion.

This reality alone is reason enough to discourage banks from adopting FedNow. A thriving economy needs more private enterprise and less government ownership. A thriving economy needs private enterprise to stand up and demand that government confine itself to its established Constitutional lane and not stray beyond those boundaries. A thriving economy needs private enterprise and private citizens to be free from government interference in their private commercial choices and endeavors.

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Yet there is an even bigger reason for being suspicious of the FedNow service: its messaging standard.

Every means of transaction processing among disparate systems requires the adoption of a uniform messaging standard and protocol in order for communications to occur. RTP has its messaging standard, as the Treasury’s 2018 report acknowledges. So, too, does the FedNow service.

The messaging standard used by FedNow is, according to the Federal Reserve’s own materials, the ISO 20022 standard.

ISO 20022 is an internationally recognized standard for financial services messaging, and was first developed in 2004, with regular updates and revisions since.

The financial services industry’s need for a common “language” is what led the Geneva-based International Organization for Standardization to launch its ISO 20022 (pronounced EYE-SO-TWENTY-OH-TWENTY-TWO) messaging standard in 2004.

The Federal Reserve engages in a bit of semantics sleight of hand in talking up the ISO 20022 standard, as it makes the exaggerated claim that The Clearing House’ RTP network also uses ISO 20022.

Financial services organizations in more than 70 countries currently use the ISO 20022 standard, including The Clearing House’s RTP^{® 1} network, which has used the standard since the payment platform launched in 2017

However, a quick examination of the RTP messaging standard documentation reveals that, while RTP is indeed broadly compliant with ISO 20022, it also deviates from the standard in many areas, such as using error codes and messages which are not part of the ISO 20022 standard.

RTP supports the ISO 20022 message standard also known as the Universal Financial Industry Message scheme (UNIFI) for the communication between its Participants and the System. In cases where the ISO 20022 message format does not cater to certain communications (e.g. Participant Sign-On to the System), proprietary messages based on the ISO 20022 data dictionary have been defined. The specific schemas relating to the supported RTP message formats are available to all Participants in the RTP Scheme and must be adhered to when constructing and processing messages.

Why is ISO 20022 a point of concern? It was largely designed and is today supported and maintained by SWIFT—the Society for Worldwide Interbank Financial Telecommunication.

Full-scale implementation of ISO 20022 by SWIFT member institutions is that organizations primary project at this time.

The rich and structured data enabled by ISO 20022 is an essential element of the next generation of payments. It’s the foundation for financial institutions to work smarter and faster, leading to greater operational efficiency, improved data analytics and compliance, new opportunities for innovation and enhanced customer experiences that promise to transform the payments landscape.

“The go-live of ISO 20022 for CBPR+ and the start of the coexistence period represents the huge collective effort of the entire Swift community and opens significant possibilities for the future,” said Pat Antonacci, Chief Customer Experience Officer at Swift. “We look forward to continuing to work with the payments industry to unlock new opportunities as institutions move to fully adopt ISO 20022 and benefit from its richer, more structured data.”

What a coincidence that the Federal Reserve is using FedNow to push this standard within the US in the same time frame that SWIFT is pushing the standard globally!

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Ordinarily, standards are dry and dull things discussed by faceless bureaucrats in anonymous and largely invisible bureaucracies. However, SWIFT has the curious (mis)fortune to have been given a dramatic dose of visibility recently—when the US government and the EU combined to expel Russian banks from participation in the SWIFT network immediately after Russia’s invasion of Ukraine.

The White House, along with France, Germany, Italy, the United Kingdom and Canada, announced Saturday evening that they would expel certain Russian banks from SWIFT, the high-security network that connects thousands of financial institutions around the world, pledging to "collectively ensure that this war is a strategic failure for (Russian President Vladimir) Putin."

"This will ensure that these banks are disconnected from the international financial system and harm their ability to operate globally," they wrote in a joint statement released by the White House, also pledging "restrictive measures that will prevent the Russian Central Bank from deploying its international reserves in ways that undermine the impact of our sanctions," and restricting the sale of "golden passports" that allow Russian oligarchs to avoid the brunt of sanctions already levied.

The degree to which this maneuver was strategically advisable remains very much a subject of some debate, as even corporate media has examined the possible ramifications of such a move to “weaponize the dollar”.

U.S. sanctions against Russia should hasten a move by some countries to reduce their reliance on the U.S. dollar, which could also soften demand for Treasuries just as the Federal Reserve, the largest holder of U.S. debt, looks to cut its bond holdings.

In reality, exclusion from SWIFT is not “weaponizing” the dollar, but rather the network by which banks globally settle transactions and facilitate international commerce. SWIFT is not run on the dollar, but processes several currencies. The euro routinely runs a close second to the dollar and has at times even surpassed the dollar as the most commonly used currency in SWIFT messages and transaction.

What is more than a little disturbing about Russian banks’ expulsion from SWIFT is the “SWIFT-ness” (pun intended) with which it was done. Barely two days after Russian forces crossed the border and invaded Ukraine, the US and the EU—or, rather, the governments thereof—simply told SWIFT that Russian banks were no longer members, and transaction messages from those banks were not to be processed. By simple diktat, Russian private banks were ejected from international commerce.

To say that weaponizing the infrastructure of international commerce is problematic government policy is the epitome of understatement. Weaponizing the infrastructure of international commerce is dangerous government policy. Within the United States, it is illegal and unconstitutional government policy to extend that same weaponized infrastructure to domestic commerce by US citizens—the power to regulate commerce is not the power to decide who may and may not engage in commerce, and must never be seen as such.

FedNow’s adoption of the ISO 20022 messaging standard, coupled with SWIFT’s own advocacy for that same standard, unequivocally connects the FedNow service to the larger SWIFT system. It extends the US government’s power to exclude foreign entities from participation in a global payment processing network into power to prevent the participation by US citizens in private commercial transactions within the United States—it illegally extends the government’s power; it unconstitutionally extends the government’s power.

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Advocates for FedNow will probably nod condescendingly at this juncture and say something to the effect of “yes, that’s whole idea.” In an earlier period, before Russia was summarily bounced out of SWIFT, the potential risks of such an integration might not have seemed quite so significant. However, we now live in an era where it is accomplished fact that governments can, at a moment’s notice, ban a bank or even a country from participation in the SWIFT network, thereby isolating that country economically—and what has been done once is always done easier the second time.

It is easy and even trite to argue that expulsion from SWIFT was an appropriate response to Russia’s invasion of Ukraine. That is a policy discussion for another time. Yet, whether it was appropriate or inappropriate, wise or unwise, it was done.

What is to prevent a future US government, or a future EU bureaucrat, from expelling a bank for processing gun purchase transactions? Or for handling donations to an “objectionable” political cause? That is also a scenario we know can happen, because it already happened to the Freedom Convoy in Canada, when GoFundMe cancelled the convoy’s account and refused to give the money back to the donors.

All Facts Matter

GoFundMe: A Study In Stupid

It perhaps should come as no surprise that GoFundMe had, on its own initiative, canceled the fundraiser to help supply needs of the truckers protesting Canada's myriad COVID-19 Gof and restrictions. As a private enterprise, surely GoFundMe retains the right to decide with which causes it will become involved; opting to cancel the Freedom Convoy’s fundra…

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4 years ago · 8 likes · 7 comments · Peter Nayland Kust

The FedNow service, as a means to facilitate moving money between two parties to a transaction, is also intrinsically a means to bar that transaction. The power to enable real time payments is intrinsically the power to disable real time payments.

The FedNow service is intrinsically a means to exclude the politically undesirable—the “deplorables” who can exhaust a government’s “patience” with their dogged insistence on freedom of thought, freedom of action, and freedom of conscience.

All Facts Matter

The Case Against The OSHA Vaccine Mandate

While the world has yet to see the emergency rule proposed by OSHA mandating COVID vaccinations or weekly testing in all companies with more than 100 workers, we should pause to remember that many—perhaps even most—Americans are at the very least troubled by the vaccine mandate. Being told by an impersonal government that we must accept an injection of …

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5 years ago · Peter Nayland Kust

As we have seen just with the COVID-inspired lunatic government excesses in recent years, the government needs no encouragement to stray beyond its Constitutionally appointed domains and illegally impose its bureaucratic will upon the people. It is hardly a paranoid exaggeration to highlight the new opportunities for government mischief and misbehavior when we are still dealing with the fallout from its recent orgy of pandemic-related mischief and misbehavior.

The FedNow service is proof positive that the Federal Reserve—and, by extension, the US government—does not need to “weaponize” the dollar via a CBDC. With FedNow, it is already weaponizing the means by which people spend their dollars in furtherance of their own lives, their own liberty, and in pursuit of their own happiness.

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A person with evil intent walks virtually unopposed into a school and commences to open fire on defenseless children and teachers. The shooter, Audrey Hale, simply shot out a glass door and walked into the school.

This was an evil act. This was a barbaric act. This was an act without justification or reason. Let us not delude ourselves by thinking otherwise.

But this was also a preventable act. Any time a person walks into a school unopposed or unobstructed, that is a failure of planning, a failure of preparation, a failure perhaps of infrastructure, but in all cases it is a failure. Schools do not need to be the soft targets they are, and schools should not be the soft targets they are.

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Security camera footage shows clearly how little effort the shooter needed to get into the school. A few seconds and she was inside, with no one prepared to oppose, no one in place to resist, and certainly no one in place to shoot back.

This is not an issue about gun control. Banning “assault rifles” would not have prevented this evil and barbaric act. Gun bans would not have even slowed her down.

It is bad enough that the “solutions” being touted by the sickening and disgusting Democrats, who revel in the deaths of children merely to launch yet another assault on the Constitution that is as yet the supreme law of the United States, are simply illegal, illegitimate, and wholly void of any legal substance.

Their proposals to “ban assault weapons” are something far worse and far more appalling in light of this latest tragedy—they are completely useless.

We would do well to remember that the Federal Assault Weapons Ban, also known as the “Public Safety and Recreational Firearms Use Protection Act”, had been written into law as part of the 1994 "Violent Crime Control and Law Enforcement Act of 1994” (PL 103-322)1. The very weapons that some would ban now were already banned at the time of the Columbine shooting in 1999. That weapons ban failed miserably at Columbine. That weapons ban did not merely work badly, it did not work at all.

Yet why would we expect any law to work well when that law flies in the face of the US Constitution? The text of the Second Amendment is clear, simple, unequivocal, and categorical:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Even a simple grammatical analysis of that text yields but one unalterable conclusion. Government may not restrict the right to keep and bear arms, period. There are no exceptions. There are no exigent circumstances. There are no excuses.

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The Right To Keep And Bear Arms Must Never Be Infringed

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. The Second Amendment To The Constitution Of The United States The right to keep and bear arms, permanently enshrined in the Second Amendment to The Constitution, is one of the American citizen's most cherished r…

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8 years ago · Peter Nayland Kust

The government is precluded from enacting gun control. There are no second options to consider.

From Columbine, through Parkland, through Uvalde, and now through the Covenant School, we see tragic reasons why government does not get to have this authority: government cannot wield this authority to any good effect. When it comes to gun safety, government is simply not competent to make it happen.

For this reason alone, even before we get to questions of tyrannical and unjust government, responding to mass shootings by seeking to ban various classes of firearms is always the wrong-footed approach. That approach asks the wrong question and thus cannot hope to offer anything but a wrong solution—a solution that not only violates fundamental rights of self-preservation but also basic parameters of common sense.

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On Gun Control, We Keep Asking The Wrong Question

Among the more predictable political rhythms in this country is the Second Amendment Two-Step: First there is a mass shooting or other horrific gun crime, followed by a proliferation of pontification promoting various bits of gun control legislation, all of which decry gun violence and promise to end such violence if only Americans would see the light a…

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7 years ago · 3 comments · Peter Nayland Kust

Thus for the White House to claim that the victims at The Covenant School are owed a violation of the Constitution is arrant and frankly sickening nonsense.

President Joe Biden addressed Nashville's deadly school shooting while speaking at an event in Durham, North Carolina, Tuesday, reiterating his call for Congress to pass an assault weapons ban and saying there was a "moral price to pay for inaction."

"As a nation we owe these families more than our prayers," Biden said of the families of the six people who were killed Monday when a 28-year-old former student opened fire at the Covenant School in Nashville. "We owe them action."

Americans, and especially our children are indeed owed action. There should be action—action which is Constitutional, action which is lawful, action which is above all else effective. That disqualifies any ban on assault weapons from even a moment’s consideration, as they are neither Constitutional, lawful, nor effective. That disqualifies any attempt by government at any level to control and regulate firearms, as government is not competent to do so.

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If government is not competent to control firearms—and government is most emphatically not competent to do so, on any level—what questions should we be asking? What actions should we be demanding?

What can we reasonably expect government to do?

The answer now, as before, is to improve schools to make them safer buildings, safer campuses.

All Facts Matter

The Parkland Shooting: Failure By Design

The mass shooting at Marjory Stoneman Douglas High School was a barbarity. The wanton slaughter of 17 people was--and is--an outrage. If you are not angry reading about it, you are either mentally ill or not really paying attention. As our minds grapple with the sheer inhumanity of such an act, we seek to bring order and structure to the madness. We wa…

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8 years ago · Peter Nayland Kust

In his classic treatise on strategy and tactics, Sun Tzu wrote "You can ensure the safety of your defense if you only hold positions that cannot be attacked." This is the goal of all security: invulnerability to attack. It should be the goal of school security--and it has not been.

Making schools invulnerable should be the one constant objective in every school district.

That means having tighter controls over the points of access. The shooter at the Covenant School was able to shoot the glass out of a door to gain entrance. The Uvalde shooter simply walked in the door, as did the shooter at Parkland in 2018. These things should never be allowed to happen. These things should be made impossible.

Not allowing school shootings means having a solid man-trap at the doors where entrance is permitted.

Mantraps limit access to secure areas within a facility while providing an effective means to physically detain unauthorized persons until security provides clearance. In its most basic form, a mantrap is comprised of a set of doors that requires the person to enter the first while the others are closed. Mantraps are typically manual swing doors forming a vestibule but can also use sliding doors or gates. Some mantraps use turnstiles or revolving doors.

Once inside the first door, the person cannot pass through the second door until the first door is closed.

Not allowing school shootings means having security personnel vetting each and every non-student who walks through the door.

Not allowing school shootings means having containment doors—essentially expansions on the man-trap premise—within the building to restrict access to the entire school.

In large scale systems such as those found in casinos, healthcare facilities, government installations and large financial institutions, as many as 99 doors can be configured into a single massive mantrap system. The programmable nature of such large systems provides system designers and integrators with the flexibility to implement complex systems involving dozens of rooms and safe areas.

These are simple, physical, and above all Constitutional approaches to resolving the issue of school shootings.

Yet the “experts” will tell us—and have told us—that these are bad ideas and should not be considered.

Ken Trump, president of Cleveland-based National School Safety and Security Services, believes metal detectors are an unsustainable, knee-jerk political reaction. He cautions against their use for practical reasons like cost, and because they are often seen as a replacement for better strategies.

Trump has been a school safety consultant for 30 years and Congress has invited him to testify on the topic four times since 1999. He also provided testimony to the task force that was formed after the Sandy Hook shooting and frequently appears as an expert on national news programs.

The problem with physical safety, you see, is that Ken Trump and his ilk think such measures are “too hard”—yes, he really believes that.

In order to do the job, a metal detector would have to be coupled with other measures that simply are not realistic. First and foremost, they must be in use around the clock, 365 days a year, to prevent someone from stashing a weapon, Trump said. All ground-floor windows need to remain permanently shut so no one can pass anything into the building. No one can prop open a door, even temporarily, and every entrance and exit would need to be manned.

How did the Uvalde shooter gain access to the school? Through a door that was propped open and then didn’t lock properly when the teacher hastily tried to close it. So yeah, propping doors open is a security risk—but the inconvenience of having to adapt to controlled modes of access is simply too much to ask of both students and their parents.

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You cannot enter a courthouse without going through a metal detector. You cannot enter a concert venue without going through a metal detector. You cannot board a plane without going through at least a metal detector. Yet we are told it is simply unrealistic to expect students to go through a metal detector at school. It is simply unrealistic to tell teachers not to prop open doors. It is simply unrealistic to have doors constructed so that a few rounds of ammunition will not suffice to defeat a locking mechanism.

From Columbine through Parkland through Uvalde down to The Covenant School, teachers and children have been shot and killed because it’s “unrealistic” to expect teachers not to prop open a door, or for parents to have to check in with the security desk to visit their children during the school day.

This is the logic of the “experts”, and has been the logic of the “experts” for decades. Because of this logic and their “expertise”, very few schools have ever had effective security measures implemented. Because of this logic and their “expertise”, those in government look away from the things they can legally do—and which they are ethically obligated to do—and look instead towards the things they cannot legally do, and which have already been proven to simply not work at all.

Is it really too much to ask that, for once, politicians and activists quit aiming at the wrong target when confronted with the horror of yet another school shooting? Is it really too much to ask that, instead of seeking new and creative ways to subvert the Constitution, we instead seek ways to make schools better protected, so that people with evil intent cannot get into the school at all?

I don’t pretend to know what the best mix of security measures would be, but this much I do know: If Audrey Hale was denied entrance to the school, if Salvatore Ramos was denied entry in Uvalde, if Nikolas Cruz was denied entry at Marjory Stoneman Douglas, it would not have mattered what weapons they carried. Without entry into the school not one child would have died in any of those situations.

Just this once, let’s aim at the right target—school safety. If we can make courthouses safe, if we can make concert venues safe, if we can make planes safe, surely we can make schools safe as well, and without violating the Constitution to do so.

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This latest mandate reversal comes courtesy of the 5th Circuit Court of Appeals. In this latest pushback against White House authoritarianism1, the 5th Circuit politely told the government that yes, federal employees could sue in federal court.

The crux of the government’s position was that federal employees had to bring cases such as mandate challenges through the administrative review process specified by the Civil Service Reform Act of 1978 (“CSRA”). This was explicitly rejected by the court.

In short, the text and structure of the CSRA creates a decades-old, well-established, bright-line rule: Federal employees must bring challenges to CSRA-covered personnel actions through the CSRA, but they remain free to bring other, non-CSRA challenges under the district courts’ general § 1331 jurisdiction.

Although this ruling merely sustains a preliminary injunction, in the concluding paragraph the court takes a swipe at the mandate by noting the White House intention to end the COVID-19 emergency in May.

We hasten to emphasize that this case only involves a preliminary
injunction. The preliminary injunction’s purpose is to maintain the status quo until the parties have the chance to adjudicate the merits. See Benisek v. Lamone, 138 S. Ct. 1942, 1945 (2018) (“[T]he purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held . . . .” (quotation omitted)); Texas v. United States, 809 F.3d 134, 187 n.205 (5th Cir. 2015), affirmed by an equally divided
Court, 579 U.S. 547 (2016) (per curiam) (similar). When the parties proceed to the merits in the district court, the plaintiffs will have to prove that whatever injunction they request is broad enough to protect against their proven injuries and no broader. And the Government will have another chance to show that any permanent injunction should be narrower than the preliminary one. And both sides will have to grapple with the White House’s
announcement that the COVID emergency will finally end on May 11, 2023. See Exec. Off. of the President, Statement of Administration Policy Re: H.R. 382 & H.J. Res. 7 (Jan. 30, 2023).

The end result is another mandate failed to survive scrutiny by the courts. The long arm of the federal government still does not end in a hypodermic syringe.

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All Facts Matter

The Curtain Finally Falls On The Pandemic Panic Narrative

After more than three years of propaganda, politics, and Pfizer poison, President Asterisk is finally calling “time” on the COVID emergency (aka, the “pandemic” that never was). President Joe Biden informed Congress on Monday that he will end the twin national emergencies for addressing COVID-19 on May 11, as most of the world has returned closer to norm…

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3 years ago · 16 likes · 6 comments · Peter Nayland Kust

After more than three years of propaganda, politics, and Pfizer poison, President Asterisk is finally calling “time” on the COVID emergency (aka, the “pandemic” that never was).

President Joe Biden informed Congress on Monday that he will end the twin national emergencies for addressing COVID-19 on May 11, as most of the world has returned closer to normalcy nearly three years after they were first declared.

The move to end the national emergency and public health emergency declarations would formally restructure the federal coronavirus response to treat the virus as an endemic threat to public health that can be managed through agencies’ normal authorities.

Yet while much of the government detritus that accumulated throughout this non-emergency “emergency” has been either cancelled or revoked by Congress or various state legislatures, one extremely obnoxious example of government excess remains seemingly unkillable: the health care inoculation mandate.

The health care vaccination mandate is scheduled to run until November 2024. But some contend it’s time to stop now, citing fewer severe COVID-19 cases, health care staffing shortages and the impending May 11 expiration of a national public health emergency that has been in place since January 2020.

By the time the health care inoculation mandate imposed by the Centers for Medicare and Medicaid Services (CMS) expires, the “emergency” which spawned it will have been officially over for a year and a half.

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That health care inoculation mandates are unnecessary and ultimately ineffective, just as has been shown with all other COVID-related mandates, is by now a given. The lack of scientific and factual basis for all inoculation mandates was demonstrable reality even when they were first rolled out, as was the case with the aborted OSHA mandate.

All Facts Matter

OSHA Emergency Temporary Standard On COVID Vaccinations Contradicts Reality

OSHA has now released its Emergency Temporary Standard requiring virtually all employers to coerce their employees to receive one of the available COVID-19 vaccinations (Pfizer, Moderna, and Johnson & Johnson). As expected, its rationale lacks one essential element: factual support…

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4 years ago · 1 like · Peter Nayland Kust

Yet as the one remaining set of mandates impacting American workers—specifically, healthcare workers—inoculation mandates are also a large and growing barrier to health care delivery, and a hidden but growing costs for several aspects of healthcare.

From the beginning, inoculation mandates for health care workers have exacerbated already significant staffing shortages.

As soon as inoculation mandates began to be rolled out at the state and national level, hospitals such as Lewis County General Hospital were forced to suspend medical services due the number of nurses who refused to get inoculated even at the expense of their jobs.

Lewis County General Hospital in Lowville, N.Y., announced Friday that it is pausing maternity services later this month because dozens of staff members quit rather than get COVID-19 vaccines.

The hospital will be "unable to safely staff" its maternity department and newborn nursery as of Sept. 25, according to Lewis County Health System CEO Gerald Cayer. He added that other departments in the hospital are at risk as well if workers don't get vaccinated.

Astoundingly, much of the rationale for the mandates was predicated on the absurd contention that there either was no natural immunity against COVID or that it was inferior to that allegedly provided by the mRNA inoculations.

Officials at Advocate Aurora said they are mandating vaccines for their employees to protect their staff, community and patients.

Mary Beth Kingston, chief nursing officer for Aurora, said naturally occurring antibodies do not provide as strong of an immunity to COVID-19 as the vaccine does and said some patients are demanding to be treated by vaccinated health care members only.

"Patients are concerned. They come into the hospital, they're vulnerable and a lot of times, they're immuno-suppressed, so they voice their concern about having vaccinated health members and providers," Kingston said.

The lunacy of this assertion is amply proven by the more than 60 clinical studies worldwide which demonstrate that natural immunity is superior to the inoculations.

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Want Protection Against COVID? Get COVID

The house of cards that is the “safe and effective” narrative surrounding the (toxic and deadly and definitely ineffective) mRNA COVID-19 inoculations continues to collapse. On Thursday, a study appeared in The Lancet stating that past infection by the SARS-CoV-2 virus was as good as if not better than the inoculations…

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3 years ago · 12 likes · 8 comments · Peter Nayland Kust

Nor was immunity strength the only lie that was told about the inoculations.

From the outset, the assertion by the CDC and other agencies has been that the inoculations were “safe”—an assertion many nurses even then questioned.

Many worried about unknown long-term side effects of the vaccine, though the CDC said any serious side effects that could cause long-term health problems are extremely unlikely.

That the inoculations are safe is still the official policy of the American Hospital Association, which supports inoculation mandates.

Even the CDC continues to tout the inoculations as “safe”.

The CDC’s position is particularly perverse, because the CDC also is the originator of safety analyses which show literally hundreds of “safety signals” indicating there are quite a few safety concerns surrounding the inoculations.

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The CDC Lied

The latest reveal from the CDC’s own data respositories quickly reduces to simply this: the CDC lied. They lied about doing safety monitoring. They lied about the safety of the mRNA inoculations, that there were no safety signals. There were safety signals in abundance and the CDC either refused to look for them or simply ignored them…

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3 years ago · 18 likes · 3 comments · Peter Nayland Kust

The empirical data and research evidence is unambiguous: the mRNA inoculations are neither safe nor effective. The same is therefore obviously true of inoculation mandates.

Yet the inoculation mandates persist, and because they persist they continue to harm healthcare delivery by keeping qualified personnel out of the healthcare workforce.

The impact of inoculation mandates is blunt and simple: Because of inoculation mandates, healthcare workers who do not wish to be inoculated have to choose between being inoculated against their will and working or not being inoculated against their will and not working.

Because a number of healthcare workers refuse to be inoculated against their will, healthcare facilities across the country continue to face critical shortages of healthcare workers.

It’s hard to find workers willing to be vaccinated, Corbin said, because many local residents remain opposed to the vaccine or doubt its effectiveness. Just 42% of adults in St. Clair County are vaccinated against COVID-19 — a rate barely half the national average.

The 120-bed facility is operating at half capacity and turning potential residents away, “because I can’t hire enough people to take care of them,” said Corbin, who’s been running ads touting a $5,000 signing bonus for nurses.

Exacerbated staffing shortages were an immediate impact of the healthcare inoculation mandates, and they remain a lingering legacy of the healthcare inoculation mandates.

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By far the most intrusive of the inoculation mandates is the one imposed by the Centers for Medicare and Medicaid Services (CMS). Because virtually all hospitals and healthcare facilities in the United States accept patients whose health care coverage is through Medicare and Medicaid, the CMS inoculation mandate is the one which impact every community in every county in every state in the Union.

Moreover, given the deference local public health officials have routinely shown the federal agencies with regards to COVID policies, the continued existence of the CMS mandate is almost certainly a significant factor in the continuation of existing state level mandates.

All Facts Matter

Los Angeles: The Mask Mandate Lives

Critical thinking begins with a simple question: “Why?” Asking “Why did the apple fall from the tree?” is the famous fable of how Sir Isaac Newton developed his theories on gravity. When asked “Why is Los Angeles Count resuming the mask mandate?”, however, the answer given by county Public Health Director was the antithesis of critical thinking…

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4 years ago · 5 likes · 7 comments · Peter Nayland Kust

These realities make the CMS inoculation mandate by far the most obnoxious of them all. That obnoxiousness is compounded by the fundamental reality that the Centers for Medicare and Medicaid do not have statutory authority to impose such a mandate.

The CMS inoculation mandate came into existence on November 5, 2021, when the rule1 was published in the Federal Register. The rule specifically required healthcare workers in hospitals and facilities participating in the Medicare and Medicaid programs to be inoculated.

In light of our responsibility to protect the health and safety of individuals providing and receiving care and services from for Medicare- and Medicaid-certified providers and suppliers, and CMS's broad statutory authority to establish health and safety regulations, we are compelled to require staff vaccinations for COVID-19 in these settings. For these reasons, we are issuing this IFC based on these authorities and in accordance with established rule making processes. Specifically, sections 1102 and 1871 of the Social Security Act (the Act) grant the Secretary of Health and Human Services authority to make and publish such rules and regulations, not inconsistent with the Act, as may be necessary to the efficient administration of the functions with which the Secretary is charged under this Act and as may be necessary to carry out the administration of the insurance programs under the Act. The discussions of the provider- and supplier-specific provisions in section II. of this IFC set out the specific authorities for each provider or supplier type. Provider and supplier compliance with the Federal rules issued under these statutory authorities are mandatory for participation in the Medicare and Medicaid programs.

Section 11022 authorizes the Secretaries of the Treasury, Labor, and Health and Human Services to enact regulations regarding the general administration of Medicare and Medicaid systems and facilities.

The Secretary of the Treasury, the Secretary of Labor, and the Secretary of Health and Human Services, respectively, shall make and publish such rules and regulations, not inconsistent with this chapter, as may be necessary to the efficient administration of the functions with which each is charged under this chapter.

Section 18713 applies to regulations regarding the administration of the insurance aspects of Medicare and Medicaid.

The Secretary shall prescribe such regulations as may be necessary to carry out the administration of the insurance programs under this subchapter. When used in this subchapter, the term “regulations” means, unless the context otherwise requires, regulations prescribed by the Secretary.

Soon after, a number states filed suit to block the implementation of the rule, which ended up in the US Supreme Court as Biden v Missouri4.

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In a rare per curiam (Latin for "by the court") decision, the Supreme Court upheld the validity of the rule, with the Court ruling that the HHS Secretary was explicitly empowered to enact such a rule by statutes cited above.

The Medicare program provides health insurance to individuals 65 and older, as well as those with specified disabilities. The Medicaid program does the same for those with low incomes. Both Medicare and Medicaid are administered by the Secretary of Health and Human Services, who has general statutory authority to promulgate regulations “as may be necessary to the efficient administration of the functions with which [he] is charged.” 42 U. S. C. §1302(a).

However, several justices dissented from the Court’s ruling, with Justice Thomas5 in particular noting that the authorities cited by the government did not extend and should not be extended to include the authority to impose unwanted medical procedures.

The Government has not established that either provision empowers it to impose a vaccine mandate. Rules carrying out the “administration” of Medicare and Medicaid are those that serve “the practical management and direction” of those programs. Black’s Law Dictionary 58 (3d ed. 1933). Such rules are “necessary” to “administration” if they bear “an actual and discernible nexus” to the programs’ practical management. Merck & Co., Inc. v. United States Dept. of Health and Human Servs., 962 F.3d 531, 537–538 (CADC 2020) (internal quotation marks omitted). Here, the omnibus rule compels millions of healthcare workers to undergo an unwanted medical procedure that “cannot be removed at the end of the shift,” In re MCP No. 165, 20 F. 4th 264, 268 (CA6 2021) (Sutton, C. J., dissenting from denial of initial hearing en banc). To the extent the rule has any connection to the management of Medicare and Medicaid, it is at most a “tangential” one. Merck & Co., Inc., 962 F. 3d, at 538.

Thomas’ reasoning is instructive, because the rule itself asserts a policy position that the inoculations are “safe and effective.”:

It is essential to reduce the transmission and spread of COVID-19, and vaccination is central to any multi-pronged approach for reducing health system burden, safeguarding health care workers and the people they serve, and ending the COVID-19 pandemic. Currently FDA-approved and FDA-authorized vaccines in use in the U.S. are both safe and highly effective at protecting vaccinated people against symptomatic and severe COVID-19.

If the mRNA inoculations truly were “safe and effective”—which they demonstrably are not—then the reliance on 42 USC §1302(a) as the authority to impose the rule becomes a question of how substantive a connection to the statute must there be in order for that authority to be sustained. As the text of both the per curiam opinion and the Thomas dissent elucidate, the authority in question is one of “practical management”; because no practical management goal can be accomplished through the imposition of toxic and dangerous inoculations, the legitimacy of using 42 USC §1302(a) even by the majority ruling rests entirely on the inoculations’ presumed safety and efficacy, which was debatable even then and is disproven now.

There is no statutory authority for CMS to demand inoculation with toxic and deadly substances, which the mRNA COVID shots unequivocally are.

Moreover, even in the Supreme Court case which validated state level vaccine mandates, Jacobson v. Massachusetts6, the Court explicitly inferred that issues of safety would be sufficient to invalidate even a state level mandate.

Before closing this opinion, we deem it appropriate, in order to prevent misapprehension as to our views, to observe -- perhaps to repeat a thought already sufficiently expressed, namely -- that the police power of a State, whether exercised by the legislature or by a local body acting under its authority, may be exerted in such circumstances or by regulations so arbitrary and oppressive in particular cases as to justify the interference of the courts to prevent wrong and oppression. Extreme cases can be readily suggested. Ordinarily such cases are not safe guides in the administration of the law. It is easy, for instance, to suppose the case of an adult who is embraced by the mere words of the act, but yet to subject whom to vaccination in a particular condition of his health or body, would be cruel and inhuman in the last degree. We are not to be understood as holding that the statute was intended to be applied to such a case, or, if it as so intended, that the judiciary would not be competent to interfere and protect the health and life of the individual concerned.

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Given that the entire validity of the CMS mandate in particular rests upon the presumed safety and efficacy of the mRNA inoculations, and given that the mRNA inoculations have been proven time and again to be neither safe nor effective, but rather toxic and deadly, there ultimately is no operative ruling or precedent of the Supreme Court which sustains the mandate as a lawful exercise of government power7.

There is no fact-based reading of either statute or Supreme Court ruling which can sustain the CMS inoculation mandate as a lawful exercise of government power, and it is in fact yet another example of a lawless exercise of government power.

Yet this lawless exercise of government power has prevailed, and, perversely, will prevail long after the emergency declaration which occasioned it has passed into history.

This lawless exercise of government power has not preserved life nor facilitated healthcare. Rather, it has impeded the effective delivery of healthcare by exacerbating already significant and even severe staffing shortages. It has resulted in less care and more cost. If there was anyone within the US healthcare system that did not realize this consequence of unwarranted government intrusion, if they have been paying attention they realize it now.

The enduring legacy of the CMS inoculation mandate will be this harsh lesson of how badly things can go wrong when government strays beyond its lawful scope of authority. Government out of control of the people is invariably bad, harmful, and expensive government.

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Biden introduced the plan in August 2022 in a move that critics decried as a constitutionally dubious attempt to shore up Democrats’ fortunes ahead of the November 2022 congressional elections. While the Congressional Budget Office said the plan could cost about $400 billion, the Wharton School at the University of Pennsylvania estimates the price tag could exceed $1 trillion.

Opposition to the White House loan forgiveness program has spawned two cases which have made it all the way to the Supreme Court: Joseph R. Biden, President of the United States v. Nebraska2 and Department of Education v. Myra Brown3, for which oral arguments were heard yesterday.

Calling the plan “constitutionally dubious” is being kind. A plain reading of the relevant statute shows that even if the Department of Education were Constitutionally capable of granting and administering packages of loans to America’s college students—which it is not—it has been given no statutory authority upon which it may rely for unilateral forgiveness of any portion of those loans.

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As readers are aware, my take on the Department of Education echoes that of Congressman Thomas Massie (R-KY4): The Constitution does not give the federal government any authority over education.

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Congressman Massie's Perennial Tilting At The Department Of Education Windmill

As has been his custom in the past several sessions of Congress, Congressman Thomas Massie (R-KY4) has once again introduced a bill to terminate the Department of Education. Republican Kentucky Rep. Thomas Massie has reintroduced H.R. 899 for the 118th Congress, which seeks to eliminate the U.S. Department of Education…

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3 years ago · 13 likes · 4 comments · Peter Nayland Kust

The Department of Education is but one example of government excess at the Federal level. Terminating the Department of Education would be one step towards reining in the Federal government and putting a stop to that excess.

It should surprise no one that I therefore do not consider the Department of Education to have any authority to loan out US taxpayer dollars to prospective college students—nowhere in Article I, Section 8 of the Constitution is there any text which plausibly gives either the Congress or the Executive Branch this authority.

Without Constitutional authority, the entire edifice of government-backed student loans is simply unconstitutional and unlawful. It does not matter how well-intentioned student loan programs are or might be; without Constitutional authority they are something the federal government may not lawfully do, period.

This is exactly what is meant in Article VI of the Constitution, which declares it to be the supreme law of the land.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

This is exactly what Chief Justice John Marshall laid out in Marbury v Madison:

Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.

Not only is the Department of Education an unconstitutional department, therefore, but so, too, is both its granting of $1.7 Trillion in student loan debt and its proposal to arbitrarily forgive and write off as much as $1 Trillion of that debt.

Lack of Constitutionality, of course, has never stopped any Administration from pursuing unlawful objectives by unlawful means.

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While neither case tackles the Constitutionality of the Department of Education itself (which is a shame, as it would give the Supreme Court a chance to rectify that grotesque Congressional error), in Biden v Nebraska the operative question is the Department’s authority to forgive student loans.

In defending the Department’s authority, the government presents two arguments: 1) that the states which are parties to the case lack proper standing to sue4 in this matter; and 2) that the Department of Education has statutory authority to forgive student loans under the 2003 HEROES Act5.

This Court should vacate that injunction. Respondents lack standing to challenge the plan. On the merits, the plan falls squarely within the plain text of the Secretary’s statutory authority.

“Standing” is an essential element of Constitutional jurisprudence, as it defines what cases the Federal court system is empowered to hear.

Standing as a doctrine is composed of both constitutional and prudential restraints on the power of the federal courts to render decisions, and is almost exclusively concerned with such public law questions as determinations of constitutionality and review of administrative or other governmental action.

Where litigants lack standing, the necessary course of action for the courts is to dismiss the case.

The statutory authority claimed by the Department of Education arises from one of many post-9/11 pieces of legislation passed as the government wrestled with the ramifications of a “war on terrorism”, the Higher Education Relief Opportunities for Students Act of 2003 (PL 108-76), generally referenced as “the HEROES Act”. Specifically, the statute grants the Department of Education the following authority:

(a) Waivers and Modifications.--
            (1) In general.--Notwithstanding any other provision of law, 
        unless enacted with specific reference to this section, the 
        Secretary of Education (referred to in this Act as the 
        ``Secretary'') may waive or modify any statutory or regulatory 
        provision applicable to the student financial assistance 
        programs under title IV of the Act as the Secretary deems 
        necessary in connection with a war or other military operation 
        or national emergency to provide the waivers or modifications 
        authorized by paragraph (2).

Note that actual debt cancellation and forgiveness is not mentioned at all within the statute.

The “national emergency” upon which the White House loan forgiveness program rests is, of course, that declared by President Trump in 2020 at the start of the COVID-19 pandemic6.

The states which are parties to the case argue that the impact of the loan forgiveness program upon state agencies—specifically The Higher Education Loan Authority of the State of Missouri (MOHELA)—as well as state tax revenues gives the states the needed standing to sue, and that the White House program contorts the authorities of the 2003 HEROES Act beyond all reason.

During oral argument, several of the Justices expressed skepticism about the government’s position that “waiver” and “modification” plausibly include “cancellation”.

Justice Clarence Thomas posed that question directly:

So would you take a minute to explain how a waiver or modification amounts to a waiver -- to a cancellation?

The government’s response was that the Secretary of Education had “waived” the eligibility requirements for discharge of the student loan debt.

And I think the straightforward way to think about how the verbs map onto the Secretary's action is that he waived elements of those provisions that contain
eligibility requirements for discharge and cancellation that are inapplicable under this program and then modified the provisions to contain the limitations that he had announced as part and parcel of announcing this loan forgiveness.

Chief Justice Roberts was in rare form in challenging the government’s logic.

But, in an opinion we had a few years ago by Justice Scalia, he talked about what the word "modify" means, and he said modified in our view connotes moderate change. He said it might be good English to say that the French Revolution
modified the status of the French nobility, but only because there's a figure of speech called understatement and a literary device known as sarcasm.

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In the related case, Department of Education v Myra Brown, the question of standing is again raised, as well as the statutory authority of the Department of Education to forgive student loans pursuant to the emergency powers of the 2003 HEROES Act.

The arguments put forward by the government regarding the Department’s statutory authority are largely the same as in Biden v Nebraska.

Congress charged the Secretary with administering federal student-loan programs. Because borrowers who default on their student loans face severe financial consequences -- including wage garnishment, long-term credit damage, and ineligibility for federal benefits -- Congress specifically authorized the Secretary to waive or modify any applicable statutory or regulatory provision as he deems necessary to ensure that borrowers affected by a national emergency are not worse off in relation to their student loans.

The respondent in this case, Myra Brown, asserts that she does have standing because the White House program specifically excluded loans which are commercially held, as hers happen to be. Ms. Brown specifically points out the legal requirements of the rule-making process, which the White House circumvented in this instance.

Here, the Department is pursuing a program of debt forgiveness and Respondents want their debts forgiven too. Resp. App’x 28, 31. Under the APA and the HEA, Respondents should have had an opportunity to express their views through the rule-making process. But the Department deprived Respondents of their “procedural right[s] to protect [their] concrete interests” by adopting the Program without negotiated rulemaking and notice and comment.

On the standing issue in Brown, the government’s position in oral argument is that the respondents are making an irrational claim, for which they cannot possibly have standing.

Across the board, Brown and Taylor's arguments in this case run counter to precedent and principle. On standing, Respondents' asserted injury is a complete mismatch for the relief they seek. They claim to want greater loan forgiveness than the plan provides, but they ask this Court to hold that the HEROES Act doesn't authorize loan forgiveness at all.

A win on that theory would mean that no one could get any HEROES Act relief, not
Brown, who would get nothing for herself, not Taylor, who would lose $10,000, and not any of the millions of borrowers who need this critical relief. Respondents lack standing to seek that result.

Justice Thomas was again first out of the gate questioning the government’s logic on standing.

Are there any instances in which you would have procedural standing?

The government’s response, interestingly enough, was that Myra Brown could have standing, had she worded her case differently.

So I think that if they wanted to argue that the Secretary should have reconsidered his decision under the HEROES Act to grant broader relief, then it's possible that they could have raised both a procedural claim and a substantive claim because, at that point, their injury would be redressable. They would be saying that the Secretary drew arbitrary lines, that the plan should be expanded to include them and to provide relief to them, and that would be a very straightforward route to making the arguments if what they really want is loan forgiveness.

Chief Justice Roberts also expressed skepticism about the government’s arguments on standing.

I understand your argument on standing, and I know this isn't directly on point, but, when I saw it, it's sort of like the equal protection cases, you know, where discrimination between men and women on the level of pensions and the women -- widows get more and the widowers get less, and the challenge is brought and the argument was, well, if you win, we're going to take the excess away
from the -- the widows, so you're not going to get anything, so you don't have standing.

Why is that case -- I appreciate the way in which it's different, but why isn't that at least some authority on which they can rely?

From my layman’s perspective, I’m not sure the government’s response helped their case, as it seemed to be contradictory.

I think that the equal protection cases are fundamentally different because, there, your injury is your complaint of unequal treatment. And so, whether you level up or level down, your injury is being redressed. You're no longer being subject to unequal treatment, and, instead, everyone is being subject to the same treatment.

But this case stands in a very different posture because, here, their argument is our injury is we're not getting loan forgiveness, and the -- the relief they're seeking, which is a declaration that the HEROES Act doesn't authorize loan forgiveness in the
first place, doesn't redress that injury one bit.

However, a declaration that the HEROES Act doesn’t authorize loan forgiveness in the first place is exactly the sort of “leveling down” the government conceded in the same passage was a legitimate redress of grievance, despite the assertion to the contrary.

Intriguingly, Justice Ketanji Brown Jackson, the newest member of the Court and a Biden appointee, asked a question that seemed to question the intellectual honesty of the government’s position:

Can I just ask you, I -- I had understood them to be complaining about the procedures. Am I completely off base here? Are you suggesting that they are
complaining about not getting enough loan forgiveness or something? Maybe I misheard you, but I thought they were trying to bring a procedural claim in that the reason why this was problematic was because the procedures that they are saying are lacking are actually under the other source of authority, that they -- that if we looked at the source of authority that the Secretary used in this scenario, it doesn't
guarantee them those procedures, so you can't really complain about not getting procedures in another stat -- under another statute that was not invoked in -- in this situation.

Am I wrong about this?

My layman’s sense of the government’s response was that it was a bit weak.

The problem with that procedural theory of harm is that by their own arguments in
the case, the Secretary couldn't make a different decision. He couldn't go back to the drawing board and think about it and decide, yes, I'm going to expand the plan under the HEROES Act to provide these borrowers with relief too. So they aren't able to assert that kind of redressability for an asserted procedural injury under the HEROES Act.

The weakness in this line of reasoning is that it necessarily presumes that the loan forgiveness authority flows solely from the HEROES Act, and that there is no other legal mechanism for the Department of Education to forgive student loans, without directly refuting the equal protection argument that Justice Jackson was inferring.

However, this leads back to the same “leveling down” logic already conceded by the government: If the use of HEROES authority runs afoul of equal protection requirements, and that is the only authority accessible for student loan forgiveness, then the equitable result is that no one can have their student loans forgiven.

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Both cases highlight the degree to which the Department of Education is an out-of-control unconstitutional monstrosity, and the cynicism with which the White House is willing to contort language to shoehorn their agenda into the first statute they find.

In order for the government position on the meanings of the words “waive” and “modify” to make sense, the term “waive” in particular has to employ a meaning which is completely at odds with the text of the 2003 HEROES Act—that of relinquishing a legal right.

to relinquish (something, such as a legal right) voluntarily

Viewed contextually within the HEROES Act, the more appropriate definition from Merriam-Webster is that of refraining from enforcement:

to refrain from pressing or enforcing (something, such as a claim or rule)

This is the definition that makes sense within the phrase “waive or modify any statutory or regulatory provision,” which is how the term is deployed within the Act.

Nor is there any definition of “modify” which can be taken as synonymous with elimination or cancellation, nor are any of the synonyms referenced in Merriam-Webster consistent with elimination or cancellation.

Additionally, it should not go without notice that the overall thrust of the 2003 HEROES Act is to provide student loan relief for members of the military called to active duty or who have their educational efforts disrupted as a result of deployments pursuant to war, military operations, or a declared national emergency. Expanding the authorities stated within the Act to encompass all student loan recipients is a fairly broad assertion of authority that, just on its own merits, is of dubious constitutionality.

The Constitutional reality of the matter is this: nowhere within the enumerated powers of Congress is there given an authority to loan money to anyone. The authority given Congress is to borrow, not to lend.

If there is no Constitutional authority to lend money, there can be no Constitutional authority to forgive the incurred debt. To argue otherwise opens the door to all manner of government corruption.

Additionally, it is fatuous, facile, and fundamentally dishonest to imply, as the White House does with the loan forgiveness program, that the student loan crisis is the result of the COVID pandemic. One need only do a search for articles written about the student loan crisis in 2019, before COVID was even in circulation, to see the error of that stance, or that the amount of student loan debt at the end of 2019 exceeded $1.6 Trillion.

The plain text of the HEROES Act connects the need for student loan relief to a declared war, military operation, or national emergency—which by definition excludes pre-existing demands for relief.

The government responses to the COVID pandemic have inflicted innumerable harms on people, but the spiraling levels of student debt cannot be counted among them, simply because that problem preceded the pandemic arguably by more than a decade.

The question is not whether offering debt relief on student loans is either equitable or just, but whether the government has any authority, either in statute or in the Constitution, to grant that relief.

The answer is that the government has no authority to grant debt relief at all. It didn’t have authority to disburse taxpayer dollars in such fashion in the first place, and it doesn’t have authority to choose not to collect those taxpayer dollars still owed and outstanding. There is no text of the Constitution nor the 2003 HEROES Act which plausibly gives the government that authority.

Ultimately, these cases give at least 1.7 trillion compelling reasons why Congressman Massie’s bill to eliminate the Department of Education should be passed into law.

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Republican Kentucky Rep. Thomas Massie has reintroduced H.R. 899 for the 118th Congress, which seeks to eliminate the U.S. Department of Education.

Congressman Massie has introduced this bill1 at the beginning of the first session of each Congress since 2017, changing only the date for the Department of Education to shut down (always the very last day of the 2nd session of the particular Congress). Accordingly, even though the text of the bill has not yet been published, we may surmise what its single sentence says, based on the text of this same bill introduced in the previous Congress in 20212.

Update the year to 2024 and we almost certainly have the contents of this year’s iteration of the bill.

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Why does Congressman Massie want to shut down the Department of Education?

His reasoning is simple: Congress never had the authority to create the Education Department. Nowhere in the enumerated powers assigned to the Congress by the Constitution is the word “education” even found. Thus Massie announced his bill last week with a simple tweet.

While Congressman Massie’s bill has almost no chance of becoming law (the Democrats in the Senate and the White House are sure to oppose it), it nevertheless deserves several moments’ consideration just because it stands as an effort to return the US government to its proper Constitutional boundaries. If the Constitution does not authorize Congress to create a Department of Education, then no matter how benign or innovative the intention for such a Department may be, Congress lacks all competence to create or fund the Department of Education—and the Constitution does not authorize Congress to create a Department of Education.

As of this writing, 16 other Representatives agree with Massie, that the Department of Education is the poster child for unconstitutional governance.

Unsurprisingly, corporate media looks askance at Congressman Massie’s Constitutional idealism.

Congress recently approved a $1.7 trillion budget for the government, including $79.6 billion for the Education Department. Of that funding, $45 billion is going to K-12 programs, with the majority allocated to grants for low-income neighborhoods and special-education programs, and about $30 billion is going to higher education and federal student aid funding, including loans and Pell Grants.

So if the department were to be eliminated, those programs would either be gone — or transferred to a new agency, which would preclude the budgetary savings that Republicans are hoping for. 

The irony of their snark, of course, is that it completely glosses over Massie’s main objection to the Department of Education: the intrusion of an unelected federal bureaucracy into a state and local issue—the essence of what unconstitutional exercise of federal power is, and which Massie has told the media repeatedly:

When Insider asked Massie how abolishing the department would impact programs and laws that specifically rely on the department, he said that "unelected bureaucrats in Washington, D.C. should not be in charge of our children's intellectual and moral development."

"States and local communities are best positioned to shape curricula that meet the needs of their students. Schools should be accountable," he said. "Parents have the right to choose the most appropriate educational opportunity for their children, including home school, public school, or private school."

Lost in their condescension is the reality that, just as there is no Constitutional authority for the Department of Education, neither is there Constitutional authority for any of the federal government programs administered by the Department. Regardless of how well intentioned the programs might be, the federal government lacks Constitutional authority to disburse the public fisc in such manner.

What the corporate media is apparently unable to grasp is that Massie’s answer is the complete answer: the federal government has no lawful authority in the realm of education, and so its exercise of authority in the realm of education must cease.

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As the Department of Education itself acknowledges on its website, education is a matter for state and local government to address.

Education is primarily a State and local responsibility in the United States. It is States and communities, as well as public and private organizations of all kinds, that establish schools and colleges, develop curricula, and determine requirements for enrollment and graduation. The structure of education finance in America reflects this predominant State and local role. Of an estimated $1.15 trillion being spent nationwide on education at all levels for school year 2012-2013, a substantial majority will come from State, local, and private sources. This is especially true at the elementary and secondary level, where about 92 percent of the funds will come from non-Federal sources.

Going by the text of the Constitution, education is actually the exclusive responsibility of state and local government. However, even with the ED’s formulation of education being “primarily” a state and local matter, the Department stands as a substantial intrusion of Federal government into a realm in which it has no clear authority or remit for involvement. State and local government funds education, and state and local government is meant to run education.

Moreover, the Department of Education is also conceding that the impact of its elimination is, in the worst case, the termination of roughly 8% of overall school funding within the United States. That is a significant percentage, but it is hardly a crippling loss of funding.

It is especially not a crippling loss of funding considering how little bang has been gotten for the US taxpayer buck. In 2017, Pew Research found the United States lagging significantly behind other First World countries in the educational achievements of 15 year olds3.

One of the biggest cross-national tests is the Programme for International Student Assessment (PISA), which every three years measures reading ability, math and science literacy and other key skills among 15-year-olds in dozens of developed and developing countries. The most recent PISA results, from 2015, placed the U.S. an unimpressive 38th out of 71 countries in math and 24th in science. Among the 35 members of the Organization for Economic Cooperation and Development, which sponsors the PISA initiative, the U.S. ranked 30th in math and 19th in science.

Not only is the intrusion of federal authority into education not constitutional, it is also not very effective. These educational results speak more to wasted resources than to excellence in public administration. These educational results speak to wasted resources dispensed illegally and inappropriately in open defiance of legitimate Constitutional authority.

Additionally, the Department of Education’s student loan programs have become both a national scandal and a financial crisis in their own right, so much so that the White House has unilaterally moved to cancel large numbers of outstanding student loans under the rubric of “debt relief”.

Today, President Biden is announcing a three-part plan to provide more breathing room to America’s working families as they continue to recover from the strains associated with the COVID-19 pandemic. This plan offers targeted debt relief as part of a comprehensive effort to address the burden of growing college costs and make the student loan system more manageable for working families.

The amount of debt the White House proposes to forgive could exceed $1 Trillion, depending on how may avail themselves of the program and for what levels of debt forgiveness they qualify.

President Joe Biden's plans to forgive student loans could cost more than $1 trillion, according to estimates by the Penn Wharton Budget Model.

Biden's plan to cancel up to $10,000 in debt for people earning less than $125,000 a year, rising to $20,000 for Pell Grant recipients, would cost between $469 billion and $519 billion over the 10-year budget window, depending on whether it covers future students who haven't started their studies yet, according to the model.

The White House authority to unilaterally cancel student debts is arguably another example of government overreach, and the move is being challenged in the courts, who may yet decide that the debt forgiveness is unlawful and therefore void.

It’s a crucial month for President Joe Biden’s one-time student loan forgiveness plan: On the 28th, oral arguments will begin at the U.S. Supreme Court for two cases related to cancelation, which could prevent millions of Americans from having thousands of dollars in debt eliminated.

The Supreme Court is hearing two forgiveness-related cases. The first, Nebraska v. Biden, was brought by six conservative state attorneys general that say the Biden administration is overstepping its authority. The second was brought by a conservative advocacy group for two individuals: one who does not qualify for the forgiveness plan, and one who does not qualify for $20,000 in forgiveness.

Consider the import of these numbers: As much as $1 Trillion of taxpayer dollars have been spent on student loans which now will never be repaid and for which there is no Constitutional authority to justify the government making the loans.

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Thus comes the question, how did the Department of Education come into being, if there is no Constitutional basis for its existence? The answer is that Congress, in the 1979 Department of Education Organization Act (PL 96-88)4, willfully misread and misinterpreted the enumerated powers assigned to the Congress in Article 1 Section 8 of the Constitution. Specifically, Congress contorted and distorted the meaning and intent of the term “general welfare”.

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.

In drafting PL 96-88, Congress explicitly claimed furtherance of the general welfare as its authority for passing the legislation:

The Congress declares that the establishment of a Department of Education is in the public interest, will promote the general welfare of the United States, will help ensure that education issues receive proper treatment at the Federal level, and will enable the Federal Government to coordinate its education activities more effectively.

Perversely, in the Act’s findings (section 101), Congress all but admitted that it really has no role, no “education activities”, and that all such activities are meant to be handled at the state and local level.

(3) parents have the primary responsibility for the education of their children, and States, localities, and private institutions have the primary responsibility for supporting that parental role;
(4) in our Federal system, the primary public responsibility for education is reserved respectively to the States and the local school systems and other instrumentalities of the States

Remember, the term “education” is not found within the enumerated powers of Article 1, Section 8 of the Constitution. The 10th Amendment further explicates that all unenumerated powers by default go to the states and to the people.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Thus the plain text of the Constitution leaves no residual role for the Federal government to play in education. It all goes to state and local government.

This view is also the view James Madison expressed of the enumerated powers within Federalist Paper Number 415:

Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,'' amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction. Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms “to raise money for the general welfare.”

But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars.

In this view—the view of the Founding Fathers—the first clause in Article 1, section 8, is defined and delimited by the further enumeration which follows. As education is not within that enumeration, logic as well as the 10th Amendment precludes its imputation under the rubric of the “general welfare.”

Moreover, the Constitution clarifies that the welfare in question is the “general welfare of the United States”. This is plainly evident when one applies the definitions for the term “general welfare” from that era6, and includes the adjectival phrase which follows "of the United States".

GEN’ERAL: Public; common; relating to or comprehending the whole community; as the general interest or safety of a nation.

WELFARE: Exemption from any unusual evil or calamity; the enjoyment of peace and prosperity, or the ordinary blessings of society and civil government; applied to states.

Websters 1828 Dictionary

Even the modern definitions for “general welfare” lead us to the same semantic conclusion.

General:

involving, applicable to, or affecting the whole

Welfare:

the state of doing well especially in respect to good fortune, happiness, well-being, or prosperity

The whole, or the whole community, is that of the States. The overarching duty of Congress, per this first clause in Article 1, Section 8, is to discharge its duties as laid out in the rest of Section 8 to the overall benefit of the several states, so that the states as sovereign entities may ultimately prosper. We may be certain this is the correct reading of the clause because this is the reading which comports with the federal system of government7 which is laid out by the Constitution.

In the United States, the Constitution has established a system of “dual sovereignty,” under which the States have surrendered many of their powers to the Federal Government, but also retained some sovereignty. 

What powers have the states surrendered to the Federal government? The answer is, of course, the enumerated powers in Section 8. Authority over education is not one of those surrendered powers.

We have to suspect Congress knew they were straying outside their lawful boundaries in drafting PL 96-88, because they also took pains to state plainly that the Department of Education was not to undermine state or local authority in any way.

SEC. 103. (a) It is the intention of the Congress in the establishment of the Department to protect the rights of State and local governments and public and private educational institutions in the areas of educational policies and administration of programs and to strengthen and improve the control of such governments and institutions over their own educational programs and policies. The establishment of the Department of Education shall not increase the authority of the Federal Government over education or diminish the responsibility for education which is reserved to the States and the local school systems and other instrumentalities of the States.

One has to wonder exactly how there is any purpose to the Department of Education even within the text of its organizing legislation, given the clear mandate to not undermine or diminish state and local authority over education. As a matter of simple logic and common sense, the best way for the Department of Education to “protect the rights of State and local governments and public and private educational institutions in the areas of educational policies” is to simply not exist. No other entity can even threaten those rights, and without a Department of Education there would be no federal entity ever threatening those rights.

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It is important to state that the lack of Constitutional authority is not a blanket prohibition to say that the Federal government could never have a role to play in education. Rather, it is to say that, within the text of the Constitution, within the document which organizes and defines the structure of the Federal government and what it is explicitly tasked with doing, no such role has been defined. No authority has been granted for the Federal government to direct taxpayer dollars in this fashion

If the people of the United States—if We The People—desire the Federal government to have a role in education, it is certainly within our purview to assign that role to the Federal government. The Constitution even provides the vehicle for incorporating that role and its definition—one simply amends the Constitution accordingly, as specified in Article 5.

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

It is also important to note that, if We The People do not engage in the public debate necessary to pass such an Amendment, if we simply allow the Congress to unilaterally expand the remit of the Federal Government by passing unconstitutional laws, and then permitting the Executive Branch to improperly (and even illegally) enforcing said unconstitutional laws, then we are allowing the Federal Government to engage in one of the signature behaviors so eloquently condemned in the Declaration of Independence—that of unchecked expansion of government power to the detriment of the people.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.

It takes no great stretch of the imagination to see how this description applies to the bureaucracy of the Department of Education, and a great many other government agencies besides. Considering the deplorable state of public school education, as documented by Pew Research, and considering the $1 Trillion-plus amount of student loan debt that the government now says it cannot or will not collect, the Department of Education has been eating out a considerable amount of taxpayer substance—and doing so unlawfully.

With unconstitutional laws such as that which created the Department of Education, Congress has become a latter-day version of the despotism exhibited by the government of King George III of Great Britain during the years preceding the American Revolution.

The Declaration of Independence defined the problem: unchecked government power. The Constitution defined the solution: a system of dual sovereignty, wherein the people are meant to tell government what it is to do and in what realms it is to exercise authority. Surely it is no accident that the Constitution’s Preamble begins with the words “We The People….”

The Department of Education is but one example of government excess at the Federal level. Terminating the Department of Education would be one step towards reining in the Federal government and putting a stop to that excess.

The Constitution makes it clear that We The People are meant to be the final authority within the United States. Congressman Massie’s bill to cancel the Department of Education is one small step towards returning that final authority to We The People. It is a shame that Congress almost certainly will not pass the bill into law—it’s a rare example of a good law the Congress should pass.

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