Dobbs V. Jackson: An Easy Opinion

Estimated Reading Time: 5 minutes

The rejection of a “compelling state interest” test will remove abortion from national politics.

A simple Baltimore lawyer here tenders a short opinion to dispose of Dobbs v. Jackson Women’s Health Organization, the abortion case from Mississippi in oral arguments before the Supreme Court today.

This case presents the question: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.” It involves a limitation of abortion after 15 weeks of pregnancy. Similar limitations are found rational in many nations including France and Germany with their 12-week cutoff point. In Roe v. Wade, we said that states could limit second-trimester abortions if there was a rational basis to do so, but in the companion case of Doe v. Bolton, decided on the same day, we effectively applied a “compelling state interest” test.

We can dispose of this case by overruling Doe v. Bolton and Casey, but the avoidance of further controversy and confusion makes it desirable that we dispose of Roe also, thus withdrawing the Court from an area of public policy that we should not have entered in the first place and allowing further discussion to be divorced from claims of absolute right not inducing tolerance.

Five tests are conventionally used to justify overrulings: quality of reasoning (ever-shifting in this case); workability (belied by the constant flow of litigation over the “undue burden” test); inconsistency with prior law (patent in light of state legislation as of 1973); reliance (scarcely present, despite Casey, in view of Casey’s concession that “reproductive planning could take almost immediate account of any sudden restoration of state authority to ban abortions,” a conclusion reinforced by the two-thirds drop in births to teenagers following the withdrawal of 18 years of guaranteed AFDC payments by the Welfare Reform Act of 1996); and finally, and most importantly, as stated in Casey, “whether Roe’s premises of fact have so far changed to render its central holding irrelevant or unjustifiable” and whether an overruling decision would provide “a response to facts that the country would understand but which the court of an earlier day as its own declarations disclosed had not been able to perceive.”

These standards for overruling are now more than fully met. The Roe court did not even consider the potential effect of abortion-on-demand on sexual mores, unwanted pregnancies, and births out of wedlock. It recognized that anti-abortion statute might be the “product of a Victorian social concern to discourage illicit sexual conduct” but declared “Texas does not advance this justification in the present cases and it appears that no court or commentator has taken the argument seriously. The appellants and amici contend moreover that this is not a proper state purpose at all.” So much for the mostly religious lawgivers memorialized in the frieze at the top of the Supreme Court building and Justice Holmes’ observation that “the law is the external deposit of our moral life.”

It is nonetheless the duty of the Court to consider not only the state’s actual arguments but those it might have made, lest the inadequacies of a single lawyer deform the Constitution. As stated in Flemming v. Nestor, 363 U.S.603 (1960): “we cannot with confidence reject all those alternatives which imaginativeness might bring to mind save that one which might require invalidation of the statute.”

Instead, the Roe court, excluding the possible effect of its decision on promiscuous sexual behavior and increased pregnancies and births out of wedlock, made opposite assumptions. It alluded to “concerns about population growth, pollution, poverty, and racial overtones.” The Second Circuit, invalidating a Connecticut statute, postulated that “population growth must be restricted not enhanced and thus the state interest in a pro-natalist statute such as this is limited,” citing the Rockefeller Commission report on “Population Growth and the American Future” (1971).

Subsequent research by the present secretary of the Treasury, Janet Yellen, and her Nobel-prize-winning economist husband, George Akerlof, which appeared in the Quarterly Journal of Economics and the Brookings Review in 1996, made clear that Roe had dynamic effects on American society, legitimating free love and the hookup culture by providing what looked like an assured back-up to birth control pills.

Thus the percentage of births to unwed mothers increased from 5.7 percent in 1970, when birth control pills were already in wide use, to 29 percent in 2018. Among black Americans, whose out of wedlock births were of great concern to “birth controllers,” the percentage of births out of wedlock increased from 38 percent in 1970 to 71 percent in 2018. Similarly, the “deal with it” syndrome that abortion-on-demand produced among consorts caused the percentages of marriages to those pregnant out of wedlock (“shotgun weddings”) to fall from 43 percent in 1970 to 9 percent in 2018.

“Inability to provide for the nurture and care of the infant is a cruelty to the child and an anguish to the parent,” the well-intentioned Justice Harlan stated in concurring in Roe. But after 50 years, there is much more such cruelty and anguish.

This Court, like the president and Congress, is subject to checks and balances. The confirmation process is one of these and can be given effect after 48 years. Several decisions have been overruled after long periods, including Lochner v. New York (work hours) after 50 years; Adkins v. Children’s Hospital (minimum wage) after 14 years; Plessy v. Ferguson (segregation) after 58 years; Bowers v. Hardwick (sodomy) after 18 years; Baker v. Nelson (homosexual marriage) after 43 years; and Korematsu v. United States (racial distinctions) after 74 years.

The public will now understand what the Court did not in Casey when it, echoing Justice Wayne’s concurring opinion in Dred Scott, called “the contending sides to end their division by accepting a common mandate rooted in the Constitution.” Dred Scott failed because the fugitive slave provisions of the Constitution and the Compromise of 1850 rendered Northern states complicit in the permissiveness of the South. Casey failed for the same reason, by imposing coastal rules on “flyover” country.

Our decision reversing the Fifth Circuit judgment is of little direct consequence. Some four percent of abortions per year are performed after the 15th week, many in states that will continue to have liberal abortion laws. But our decision will send a powerful message to young women and their consorts that abortion is no longer a sure thing and that they should choose sexual partners more carefully than at present. The rejection of a “compelling state interest” test will remove abortion from national politics as in Western Europe and will restore the American judiciary to what Aristotle and Aquinas regarded as judges’ proper function: “corrective justice” vindicating agreed settlements, not “distributive justice” changing agreed rules, which is the prerogative of the ruler in authoritarian states and the legislatures in democratic ones.

In Ferguson v. Skrupa, 372 U.S. 726 (1963), Mr. Justice Black stated for a unanimous court: “We emphatically refuse to go back to the time when courts used the Due Process clause ‘to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought.’” To “business and industrial” we add “social,” thus definitively repudiating Dred Scott, the first adventure in substantive due process. We justify this overruling decision not merely by the prolix five tests of the legal academy, but in the words of Fiorello La Guardia: “When we make a mistake, it’s a beaut.”

The judgment is reversed.

*****

This article was published on December 1, 2021, and is reproduced with permission from The American Conservative.

Joe Manchin Does It Again

Estimated Reading Time: < 1 minute

Senator Joe Manchin announced he would join all 50 Republicans in the Senate in voting for a resolution of disapproval that would roll back the OSHA vaccine mandate.

The Congressional Review Act (CRA) allows for a majority of Congress to disapprove of any agency rule. Since the CRA vote is in the form of a resolution, only a simple majority is needed in the Senate to pass it.

The CRA would still have to be approved in the House where several Democrats have said they’re considering voting for it. And even if it’s passed by both chambers, Biden would almost certainly veto it.

But it would be a powerful statement to make prior to a Supreme Court ruling on the case.

“Let me be clear, I do not support any government vaccine mandate on private businesses. That’s why I have cosponsored and will strongly support a bill to overturn the federal government vaccine mandate for private businesses,” Manchin said in a statement.

“I have long said we should incentivize, not penalize, private employers whose responsibility it is to protect their employees from COVID-19,” he added.

Manchin had an opportunity to eliminate the mandate when Senate Republicans were able to get Senate Majority Leader Chuck Schumer to allow a stand-alone vote on an amendment that would defund the OSHA mandate.

But Manchin chose to vote against it, knowing that the CRA vote would be held next week.

*****

Continue reading this article, published December 3, 2021 at PJ Media.

Troubled Waters

Estimated Reading Time: 10 minutes

When Chinese President Xi Jinping visited Manila, Philippines during a 2018 state visit, he assured all that the two nations had entered a new era of diplomacy that promised to turn the long-disputed areas of the South China Sea into a “sea of peace.” Xi had previously issued an official communique that told the tale of how famed Chinese mariner Zheng He, with the massive Treasure Fleet of the 15th Century Ming Dynasty, had embarked on seven great voyages of “peace and friendship.” On one such voyage, claimed Xi, the Chinese explorer Zheng, and his fleet sailed into Manila Bay.

It was a fanciful tale on two counts: Zheng never sailed into Manila Bay and Xi’s regime in Beijing has brought no peace to the South China Sea (SCS).

Behind Beijing’s once-beguiling diplomacy is the now unconcealed Chinese design to encompass nearly the whole of the SCS as territorial waters of China. China claims sovereignty over virtually all the islands of the SCS and the adjacent territorial waters, even though much of this area is in the demarcated Economic Exclusion Zone (EEZ) inside the 200 nautical mile limit of the coastlines of Vietnam, Brunei, Malaysia, the Philippines, and Taiwan.

The Nine-Dash Lines

The significance and consequences of these Chinese claims cannot be overstated. China’s intention is to make more than 80-85 percent of that region part of its own EEZ at the expense of other nations and the international community. China wants to claim sovereign territorial rights to these waters and, thereby, the justification to control the passage of the world’s ships—both merchant and military—in what have always been international waters. Some $5.3 trillion in global trade and 30 percent of global oil exports ship through these same waters annually. In addition, these claims would give China exclusive rights, according to a diplomatic note Beijing penned to the international Commission on the Limits of the Continental Shelf, “to the relevant waters and seabed and subsoils thereof,” and the vast fisheries, minerals, and fossil fuels in these waters—which the US Energy Information Agency estimates hold 11 billion barrels of oil and 190 trillion cubic feet of natural gas.

At the center of China’s unprecedented claim is a crude map of the ‘nine dash lines’ that encompass nearly all of the islands in the SCS. The map was created after World War II by the Kuomintang government of the Republic of China and quickly adopted by the Chinese Communist Party (CCP) to represent the Chinese nation’s historic legacy of territories from the Ming and Qing dynasties and bolster the Party’s irredentist claims. Unlike its geopolitical rivals—with foreign policies and plans that can turn on the result of an election—China’s strategy for this region is rooted in Party orthodoxies and mapped out over decades. Beijing is positioned here to play the “long game” to outlast its rivals, exhaust any opponents, and present a fait accompli to the international community of ownership by occupation in the SCS. That strategy is bolstered by a cunning campaign of propaganda that stirs Chinese pride and patriotism and bolsters the standing of the Xi regime.

Beijing’s 2009 announcement of territorial claims in the SCS put it on a collision course with the Philippines, Vietnam, Malaysia, Brunei, and Indonesia—all nations that officially protested the use of the line to establish PRC territories in the SCS. Since 2016, Beijing has taken increasingly bellicose actions in the region—actions that have moved from strident diplomatic demands, through a phase of low intensity coercion to brazen displays of military muscle. In so doing, China is acting outside the norms of international behavior and ignoring the rule of law. In response, other nations are left with very few options to dissuade, to deter, or to deny China’s extraterritorial ambitions in the SCS—and all are fraught with risk.

Little room is now left for SCS nations and the international community to rely on diplomacy and suasion to pull China back from its unlawful island occupations or steer Beijing away from a course that risks regional armed conflict and threat of a wider war. The Association of Southeast Asian Nations (ASEAN) would seem well positioned to help resolve the dispute. China, however, is not an ASEAN member state, so the dispute is not an intra-ASEAN issue. Moreover, any action taken by the United Nations inimical to China’s interest would immediately draw Beijing’s veto from its seat on the Security Council.

Diplomacy and the Law of the Sea

Beijing regards disputes in the SCS as matters for bilateral negotiations. Bilateralism gives Beijing greater control over the outcomes of its diplomacy and the ability to conduct negotiations privately. China has little or nothing to gain from multi-lateral initiatives and so refuses to be a party to international efforts to find a diplomatic solution. The most meaningful attempt at international diplomacy was made in 2013 when the Philippines sought formal arbitration to resolve its dispute with China over possession of territory in the Spratly Islands. Under the United Nations Convention on the Law of the Sea (UNCLOS), a Permanent Court of Arbitration in the Hague ruled in 2016 there was “no legal basis for China to claim historic rights,” to exclusive control of the waters and resources inside the dash lines. The tribunal also found China had violated Philippine sovereignty and caused “severe harms” to the environment.

The nations aggrieved by China’s claims welcomed and accepted the unequivocal and unprecedented ruling. China purposefully declared the ruling “null and void.” Paramount Leader Xi bluntly rejected the ruling outright and stated flatly “China’s territorial sovereignty and marine rights in the South China Sea will not be affected by the so-called Philippines South China Sea ruling in any way.”

Xi was as good as his word. The Xi regime is using China’s vast resources and all the levers of the nation’s power—diplomatic, informational, military, economic—to intimidate, overmatch, and coerce nations bordering the region to gain and keep control of the islands and waters of the SCS.

Beijing has invested heavily in its debunked nine dash narrative as a part of China’s administrative territory. These claims play to the Party’s nationalist overtures and are ingrained in a studied campaign of propaganda to build national unity and a broad view of the Party as guardian of the nation’s sovereignty. The nine dash line now appears on passports and maps; in schoolroom texts, books, movies, television programs, and on-line games; on leaflets; and even on t-shirts. The movie Abominable—co-produced by US and Chinese animation studios in 2019—provoked censorship in Malaysia, Vietnam, and the Philippines by including a glimpse of the nine dash line map. It’s a clever and well-orchestrated information campaign and a telling demonstration of China’s ability to pull one of the levers of soft power. Then, in 2020, China unilaterally announced it had established two new administrative districts in the Spratly Islands and the Paracel Islands, both of which are claimed by Vietnam.

In the face of failed diplomacy and the Xi regime’s resolute defiance of the results of international arbitration, some SCS nations seek to deter China from using force to establish more than just titular administrative control of the region. None of these nations, however, seem willing or even able to act in concert for mutual defense. The best that can be said of any effort at building a military deterrent is that it may be sufficient to make it costly for China to resort to the overt use of force in the territorial waters of a rival claimant.

Vietnam, for example, now has military capabilities that arguably give that nation a credible military deterrent. The Vietnam People’s Army (VPA) procured Russian-built arms that include six modern Kilo-class diesel submarines, frigates, and corvettes. In addition, the VPA has added a network of anti-area missiles that include the Russian Bastion shore based anti-ship cruise missile system and modernized its air forces with long range strike aircraft. Vietnam has also improved its island outposts in the Spratlys, adding guided rocket artillery launchers on several installations—weapons capable of striking Chinese land-based targets in the region.

Given continued Chinese provocations in the SCS, Malaysia, Indonesia, and the Philippines all plan to upgrade and modernize their armed forces but are hamstrung by both limited budgets and the dead weight of old and obsolete equipment. The Philippines, for example, carry in inventory ships that are four decades old and even some that were commissioned during World War II. Manila has been more successful in rebuilding its coast guard and—with Japanese funding and shipbuilding—will take possession of the first two of ten, armed, 300-foot, multi-role response vessels in 2022.

But there is no naval arms race underway in the SCS. The reality is that SCS nations with claims in the region would be hard-pressed to mount any effective response to Chinese maritime intervention and have no means of projecting power, of sustaining offensive operations, or even of maintaining a Fabian defense in their own waters. China’s military capabilities are overwhelming already and still growing. With a fleet of 300 surface ships and submarines, the Peoples Liberation Army Navy (PLAN) is the largest in Asia; the flotilla of the Chinese Southern Theater Navy is the dominant force in the SCS.

Projecting Power

But Beijing’s military strategy is not just to achieve regional maritime dominance. The PRC aims to amass power projection capabilities from forward operating bases on islands throughout the SCS. During the last decade, China has been engaged in a sustained effort to build bases on what once were little more than small island strips of sand, shallow reefs, and rocks. Some 3,200 acres of new land for bases has been created by massive dredging operations in the disputed Spratly Islands and hundreds more acres have been created in the Paracel Islands. These bases are now the site of port facilities and airfields to support maritime logistics, sea patrols and intelligence, surveillance, and reconnaissance missions. China has also fortified these island outposts with bunkers, radar installations, upgraded sensors and anti-aircraft and anti-ship missiles. In 2019, China conducted an anti-ship ballistic missile test near the Spratly Islands to showcase an enhanced naval capability and demonstrate the Peoples Liberation Army Navy (PLAN) ability to counter any military interventions.

Beijing has yet to permanently deploy forces of the PLAN, or the Peoples Liberation Army Air Force (PLAAF) to these military outposts. But deployment of PLA forces to these forward bases would give China the capability to handily defeat the weaker military forces of other SCS nations and project power deep into the surrounding ocean areas. This war-time deployment would likely be Beijing’s military response to the worst-case scenario of concerted action by SCS nations, or Western or US intervention to deny China control of the region.

If the Xi regime succeeds and realizes its extraterritorial claims, without resort to force of arms in a broad conflict, China will present Asian nations, the West, and the United States with a stunning setback.

Instead, China will, in the near term, continue to rely on coercion and intimidation tactics—radioed threats, shadowing, ramming ships, using water cannons, tracking with fire control radar—short of the overt use of armed force. These so-called “gray-zone” tactics engage the China Coast Guard (CCG) in supposed maritime law enforcement operations and the Peoples Armed Forces Maritime Militia (PAFMM) in harassing commercial fishing fleets, small merchant vessels, and exploration and survey ships of other nations operating in the SCS. The CCG is the largest such force in the world with more than 300 vessels. More than 70 percent of all major “incidents at sea” in the SCS involve CCG and PAFMM vessels. Earlier this year China’s new Coast Guard Law transferred control of the CCG from civilian to military hands and, ominously, authorized the CCG to use lethal force on foreign vessels that fail to heed orders to leave waters claimed by China. There are teeth in that threat to use force, too. All CCG ships are well-armed and in 2017, the CCG added a 12,000-ton cutter to its forces in the region. It’s the most heavily armed coast guard ship in the world and a vessel larger than a US Ticonderoga-class guided-missile cruiser. Beyond the CCG, the Southern Theater Navy is just over the horizon, and, once committed, land-based attack aircraft can sortie from fortified Chinese-held island bases throughout the SCS in support of any Chinese maritime force.

More worrisome is China’s engagement in slow intensity conflict—forceful actions to press up to and even past the maritime frontiers of nations in the region—and create a de facto permanent presence with its large fishing fleet and with PAFMM and resource survey ships. The Xi regime seems intent to do so even in the face of the lawfully adjudicated claims of neighboring nations, in contravention of international agreements and law, and at the risk of the opprobrium of the world community. China has also assumed an increasingly bellicose posture in the region and, lately, a willingness to engage in saber-rattling and massive show-of-force demonstrations. This year China conducted some 20 amphibious landing exercises in the SCS and in the Taiwan Strait, launched more than 100 aircraft over a three-day period to test Taiwan’s air defense systems, and kicked off a series of robust naval exercises immediately before combined drills for the United States, India, Japan, and Australia took place off the coast of Guam.

Taiwan presents the only robust military force in the region, but Taipei’s Operational Defense Concept is a defensive strategy oriented to preserving assets after a first strike, fighting a decisive battle in its immediate littoral region, and destroying invading forces during landing. Taiwan does not possess an expeditionary capability and is unlikely to commit forces to the undefended Taiping Island in the SCS. Taiwan’s most credible deterrence lies in its unique relationship with the United States. Washington has never explicitly committed to a defense of Taiwan and has lately sent mixed signals of its future intent. But military to military contacts between the two nations are extensive and the US has enhanced Taiwan’s security with substantial and regular arms sales. More critically, defense of Taiwan is regarded as a litmus test for US resolve in its relations with friendly nations and partners in Asia.

Deterrence Lost

The grim reality is SCS countries are simply overmatched. Beijing’s constant campaign of coercion, harassment, the use of gray zone tactics, slow intensity conflict, and the threat of massive use of force are all intended to sap the strength and weaken the resolve of other claimants in the SCS. The nations of Taiwan, the Philippines, Indonesia, Brunei, Malaysia, and Vietnam have few options to effectively counter future Chinese military operations. Diplomacy and dissuasion have failed to produce results. Deterring Chinese aggression in the SCS is possible but can only be achieved by nations with credible military capabilities and the readiness to engage in armed conflict. This level of deterrence is only possible with the support of the international community and leadership from the West, and especially from the United States. To deny Beijing control over the islands and waters of the SCS risks not only regional conflict, but the possibility of a wider Pacific war.

Beijing’s revanchist foreign policy at play in the South China Sea is rooted in a strategy that constantly seeks to legitimize the Communist Party as the guardian of the state. The nation’s territorial sovereignty is imperative to a government that demands absolute authority to protect the homeland from fractious internal unrest, from the predations of bordering countries, and from foreigners, like those who occupied China during its Century of Humiliation. China’s foreign policy in the South China Sea also demonstrates the Party’s determination to claim historic rights to territories even as reputable historians debunk those claims. Simply put, Beijing cannot back down from its claims in the SCS; there is no way to do so that permits the Xi regime to save face.

If the Xi regime succeeds and realizes its extraterritorial claims, without resorting to force of arms in a broad conflict, China will present Asian nations, the West, and the United States with a stunning setback. Beijing will also have succeeded in legitimizing the Xi regime and the territorial goals of the Communist Party, undercutting US influence in the region, and reaping the rewards of unchecked aggression.

*****

This article was published on December 3, 2021, and is reproduced with permission from Law and Liberty.

The Long Cycles in Markets and Political Order

Estimated Reading Time: 6 minutes

The best class I took in all my economics education was called “Cyclical Fluctuation,” taught by Dr. Susan Schroeder at USYD. It was a broad-scope class in the many heterodox ideas that economists have about what causes business cycles, and what makes the output, employment, and financial prosperity fluctuate so wildly around otherwise steady long-term trends.

One kind of explanation goes by the name of “long waves” – perhaps the most famous of which is Kondratieff waves, developed by the Soviet and Marxian economist Nikolai Kondratieff. Many other theories exist that try to account for fluctuations through long-dated cycles, identifying historical patterns over 50 or 100 years. I see these stories quite a lot: the historian Niall Ferguson had plenty of long-arc thinking in his latest book; and the generational theory by William Strauss and Neil Howe (The Fourth Turning), is all the rage in the crypto world.

Usually, cycle theories or long-wave patterns suffer from problems of overfitting past data – or pushing past events through vague-enough definitions such that almost anything goes. They lack nuance or don’t offer enough evidence. Personally, I always found it absurd that a world so unlike the past from which it came could be governed by motions in that (pre-industrial) past. If “it’s different this time,” there’s no point bothering with elaborate cycles; quite a lot of things are different, but not all. If indeed enough trends echo the past, there might be a future trajectory that an astute eye can detect.

Ray Dalio, the prolific writer and founder of Bridgewater Associates, one of the world’s largest and renowned hedge funds, has if not changed my mind, then at least massively shifted the needle on how I see cycle theories. Released today, his latest 500-page tome, Principles for Dealing with the Changing World Order: Why Nations Succeed and Fail, aims very high: analyzing five centuries of markets, currency collapses, and changes to the world financial and political order.

Dalio avoids most of the traps associated with cycle theories. Changing World Order is jam-packed with charts, showing long-run changes in major countries, often reaching back centuries. Population, real GDP per capita, asset returns (of various portfolios and the main asset classes), mortality from war or famine are all included. At the core of Dalio’s view on markets and politics lies a conviction that underlies all cycle theories (“Knowing how things have changed in the past leads me to consider the possibility that something similar might happen in the future”). But he also improves on that by observing that over the longer horizon, cycles and the rise-and-fall of empires notwithstanding, cycles operate on a trend that for reasons yet unclear continues upward – through pandemics, world wars, inflations, and natural disasters

He shows us the result of the indices of competitiveness, technology, or military strength that he uses to analyze the world and inform his investment decisions. He manages to do what many successful investors writing books about their investment lens fail at delivering something new and interesting without giving away precisely the secret sauce that fueled his success.

What I like the most is the metrics of the rise and fall of reserve currencies. The Dutch guilder, Europe’s dominant reserve currency after a century or more of Dutch economic outperformance, was overtaken by the pound sterling when Britain’s industrialization and military strength later surpassed the Dutch. In turn, it subsequently lost to the US dollar during the first half of the 20th century. A dominant currency observes Dalio, lags heavily the economic punch its economy packed in the past. 

We’ve only had three or four of these global monetary transitions, so it’s hard to assess Dalio’s claim that this is a universal pattern. And if so, what does it say about the renminbi? About currencies like bitcoin, which are unconnected to a nation-state?

To analyze markets, Dalio combines the money-credit focus of Ludwig von Mises with the macro-debt focus of Hyman Minsky: “Unless you understand how money and credit work, you can’t understand why the world changed as it did.” His turning points for the debt cycles are also distinctly Minskyiate: when income isn’t enough to service debt; when people’s excesses and decadence vastly exceed their ability to create tangible value; when fear and greed are rife, jealousy and domestic conflict imminent. To this, Changing World Order expertly adds the big-picture history of people like Ferguson, Deirdre McCloskey, and Jared Diamond. Halfway through, Dalio reveals his main role model: the British historian Paul Kennedy, whose door-stop-sized The Rise and Fall of the Great Powers is on the curriculum of every undergraduate history program.

We get lots of schematic cycles, so many that I quickly lost track. The money-capital markets-debt cycle is the one he’s most known for, to which he adds cycles about internal order (values, institutions, and conflicts within a country) and cycles for external order (military, trade wars, and technology differences between countries). These are all mapped out in a fairly detailed way, with a half-dozen stages and their relative components explicitly marked.

“Most investors,” Dalio writes, don’t look for history, “because they think history and old investment returns are largely irrelevant to them.” He soothes my initial skepticism of cycle theories with plenty of graphs showing smoothed lines that move in discernable wave-like fashion.

While his long cycles are stuck in a limited history, he offers an outstanding amount of real-world evidence for this thesis: asset returns, currency debasement against gold or consumer baskets, and the expansion of debt and financial markets.

Even if his main pattern of political and economic power is broadly correct – that innovativeness, competitiveness, and education leads to prosperity, which eventually lead to excesses and decadence, decline, and conflict – it’s not clear to me what to do with that. Spain in the 1500s, fueled by Potosí silver, withered away over a hundred years; the Roman decline similarly took centuries; the Russian tzar reign ended abruptly. How do we know which historical echo signals our immediate future?

The reader must overlook the occasional statements where Dalio slips into the mistakes of other cycle theories. Like most of them, Dalio is forced into making vague, trivial, or often meaningless claims – like “most cycles in history happen for basically the same reasons.” “All markets,” he adds “are primarily driven by just four determinants: growth, inflation, risk premiums, and discount rate.”

Or this, about the internal struggles and disorder cycle:

While the length of time spent in each of these stages can vary a lot, the evolution through them generally takes 100 years, give or take a lot and with big undulations within the cycle.

With a main pattern of a century, with “a lot” of fluctuation around the start and end-points, on top of “big undulation within the cycle,” almost anything seems to fit the pattern. And “after self-interest and self-survival, the quest for wealth and power is what most motivates individuals, families, companies, states, and countries.”

At a high enough level of abstraction, these statements are plausible – even undeniable – but it is unclear what they give us. Yes, they’re true; but also very diluted in meaning. History may rhyme, but the ways in which poets can play on words is almost infinite – so what does identifying a vague, broad, or imprecise pattern really give us?

I wasn’t overly fond of the parts dedicated to China – over one-fifth of the book. It makes sense as a case study of a rising power, and is very relevant considering the many brooding U.S-China conflicts over technology, trade, and geopolitics. It pays homage to Dalio’s belief that China is rising in the many indicator curves against the stagnating (and even declining) indicators he reports for Europe and the US. But those chapters are long, detailed, and hard to follow for those without intricate knowledge of China’s past.

To nitpick, I don’t like how he tweaks established terms for no apparent reason: “store of value” became “Storehold of wealth”; “exorbitant privilege” was replaced by “extraordinary privileged.” One unconventional phrasing is useful: describing bonds and other liabilities as debt assets and debt liabilities to emphasize their role in balance sheets for different economic agents.

It is a very rare country in a very rare century that didn’t have at least one boom/harmonious/prosperous period, so we should expect both. Yet, most people throughout history have thought (and still think today) that the future will look like a slightly modified version of the recent past. […] Because the swings between great and terrible times tend to be far apart, the future we encounter is likely to be very different from what most people expect. […]

No system of government, no economic system, no currency, and no empire lasts forever, yet almost everyone is surprised and ruined when they fail.

The big curveballs are the turning points of history – modern tools of finance, the machine age, inclusive societies, or the scientific method. We can’t anticipate them, yet per Dalio’s own cycle theory we should still try to identify them, understand them, and adapt. That conflict runs through Dalio’s impressive book but doesn’t detract much from a thesis that I found much more persuasive than I had anticipated: some historical patterns are real, wave-like, and operate over long horizons. With skill, data, and humility, we can uncover the likely prospects for our own times.

*****

This article was published on November 30, 2021, and is reproduced with permission from AIER, American Institute for Economic Research.

Dispelling 3 Common Myths About Abortion

Estimated Reading Time: 4 minutes

With the Dobbs v. Jackson Women’s Health Organization case before the Supreme Court and the ongoing litigation over the Texas heartbeat law, the issue of abortion looms large in our national discourse.

Too often, pro-abortion actors make claims that are simply not true, and those claims are repeated without challenge in the media. Therefore, it’s vital that the American public be made aware of facts that challenge the pro-abortion narrative.

Here’s the truth you need to know about three core claims of abortion activists:

Myth 1: Abortions Are Safer Than Childbirth

Abortion activists claim that abortions are safer than childbirth. But that’s the exact inverse of reality—and for a number of reasons.

First, this framing of the debate denies the humanity of the unborn child from the outset. Because every fetus is a human possessing fundamental dignity, their health and safety must also be taken into consideration.

No procedure that destroys life can be considered safe. By definition, abortion is always fatal for at least one party involved; namely, the unborn child. Therefore, by definition, abortion is never “safe.”

Second, besides the fact that abortions necessarily involve the killing of unborn children, abortion is not necessarily the safer option for women.

After getting an abortion, women have approximately an 80% higher risk of experiencing mental health issues, including suicidal tendencies and substance abuse.

According to Dr. Ingrid Skop, an obstetrician-gynecologist, potentially fatal complications from abortions include “vaginal or intra-abdominal hemorrhage … infection … incomplete removal of the remains of the aborted baby, damage to the cervix, uterus, or other pelvic or abdominal organs … anesthetic reactions or overdoses, amniotic fluid, septic, or thrombotic embolisms, cardiac, or cardiovascular events.”

Such complications hardly render abortion safe for women.

Third, the assumption that abortion is the safer option for women ultimately rests on incomplete data.

The federal government as well as 22 states do not require abortion providers to report critical data on postabortion complications. This inevitably skews abortion activists’ numbers, especially when a state like California, one of the states that doesn’t require abortion providers to report data, is estimated to have over a quarter of all abortions performed in the U.S.

Likewise, according to data collected in  2019, there were no states that required doctors, coroners, or emergency rooms that don’t provide abortions to report abortion-related deaths. So, if a woman goes to an emergency room with abortion-related complications and dies, the hospital is not required to report it as an abortion-related death. That skews abortion-related mortality rates.

Therefore, abortions aren’t safe for unborn children, and they aren’t always safe for women.

Myth 2: Abortion Is a Woman’s Only Practical Option

Studies show that most abortions are chosen for reasons related to factors such as finances or personal relationships.

According to the pro-abortion Guttmacher Institute, 74% of abortions are chosen out of a fear that the baby would interfere with education or work, or that the baby would make it difficult to take care of dependents.

An overlapping 73% claimed they could not afford a child, and nearly 50% had relationship issues or did not want to become a single mother.

Even among third-trimester abortions, as reported by Dr. James Studnicki, “most late-term abortions are elective, done on healthy women with healthy fetuses.”

It’s clear from these numbers that medical emergencies do not motivate most abortions.

In contrast, the pro-life movement stresses providing the resources women need to give birth and raise their children.

Pregnancy resource centers help pregnant women and their families navigate challenges such as the pregnancy itself, financial management and needs, threats to job security, unsupportive partners and family members, and more.

According to one study, in 2019, pregnancy centers performed ultrasounds for 486,213 mothers-to-be free of charge and provided mothers and families with material resources such as diapers, baby clothes, and the like.

In total, they provided $266,764,916 worth of services, and 9 out of 10 people working at pregnancy resource centers do so on a voluntary basis.

Despite activists’ claims, abortion doesn’t solve any of those problems. By reducing “care” for women to the elimination of the unborn life, the mother is not helped.

Myth 3: Most Americans Support Abortion

The claim that most Americans support abortion is misleading when checked against data from a 2021 Knights of Columbus/Marist Poll.

Despite a slight majority (53%) of Americans identifying as “pro-choice,” 55% of pro-choice individuals are in favor of abortion restrictions.

According to the poll, 76% Americans support significant restrictions on abortion, with 70% of Americans in favor of restricting abortions after the first trimester—which would bring U.S. law in alignment with the rest of the world, including 47 out of 50 European countries.

Likewise, when asked if they support abortion based on a diagnosis of Down syndrome, 70% of participants opposed such an abortion. Additionally, 58% opposed taxpayer money going to abortions.

Ultimately, these numbers reflect a nation that wants to do more to protect unborn children and is not remotely aligned with the abortion lobby’s position of abortion on-demand, for any reason, through all nine months of pregnancy.

Sadly, that hasn’t kept Democrats from calling for the elimination of the Hyde Amendment, which would clear the way for taxpayer-funded abortions.

Conclusion

The facts indicate that abortions are not safe for unborn children and carry significant risks for the mothers who receive them.

Most abortions are not done for cases of rape, incest, or to save the life of the mother. Lastly, most Americans do not support radically permissive abortion policies. In fact, most Americans support policies that further protect unborn children than what is currently permitted under Roe v. Wade, which allows for elective abortion through all nine months of pregnancy.

We are being presented with the greatest opportunity of our lifetime to turn the tide for life. We must tell the truth about abortion and not allow pro-abortion arguments to rule the day unopposed.

*****

This article was published on December 1, 2021, and is reproduced with permission from The Daily Signal.

Respecting the Corona Virus

Estimated Reading Time: 4 minutes

It is one thing to describe something. It often is different actually to experience it. In this case we are talking about the Corona virus.

I am a 73-year-old, unvaccinated male in generally good health who came down with the Chinese virus almost exactly two weeks ago. It came along just in time to screw up Thanksgiving and the beginning of Hannukah.

Everyone is different and so what I will describe is simply my experience.  Of course, that could differ from another person’s experience. No doubt many had it easier, and a number had it worse. Overall, I feel fortunate it was not worse than it turned out to be. I feel bad for those who have had a more severe case or lost someone they loved.

My wife had it first so we went down pretty much two days apart. She had a milder case and I had it a bit more severe. I had all the standard ailments: cough, fever and chills, loss of taste, brain fog, fatigue, and weakness. The body wanted to sleep, even after the most minor exertion. Weakness followed in the wake of other symptoms retreating.

The beginning was mild, days three to four were rough, and by the end of the first week, I started feeling better, and have continued to gain strength. As I write, we are exactly two weeks from initial symptoms, and I was able to take a short hike and get outside in the glorious sunshine.

I used the word respect in the title. My wife and I expected to get infected and were surprised it took so long. We never curtailed our activities, flew on airplanes, hugged friends and relatives, lived as best we could in this confusing period. Thus, we were exposed. We knew if we got it, it could be severe but chose to live our lives without undue fear. We knew from others and from reading, most will recover but a minority of those with preconditions and advanced age are at greater risk. We did not take the bug for granted.

We know so many vaccinated people who have gotten it, we decided we would take our chances getting natural immunity, which seems far superior to the short-term benefits of the jab. That was our decision to make and we faced the consequences.

We pre-positioned ivermectin which we took for five days, had thermometers, oximeters to watch oxygen levels, took our own blood pressure, and tried to get extra rest.

Over the recent weekend, news of the Omicron variant hit the news. Stock markets tanked and Governor Kathy Hochul of New York declared a state of emergency. She said she was concerned about a cold-weather variant, even though it came from South Africa, where it is summer. No cases have been reported in New York, but she has gone into “emergency mode.” The doctor who discovered the new variant has described it as “mild.”

Still, though, Governor Hochul thought it was wise to panic.

Meanwhile, the Courts are striking down Federal vaccine mandates, and the White House just caved on mandatory vaccines for Federal employees.

As we suggested earlier, a healthy respect for the bug certainly is due, and intelligent people should take preparations because it is clear the much-touted vaccine does not stop one from getting it.  The virus will do its thing, therefore respect its power. As a society, we are not going to stop it. It was foolish to think we could. Better to be prepared and learn to live with it.

Having gone through this now on a personal level, turning our society inside out seems both unnecessary and damaging.

The arrogance of our officials is on display. Not only do they think by seizing power and changing the Constitutional order they can change these natural processes, they continue to behave this way in the face of obvious failure. Stifle your hubris. You are not going to stop the virus and you are not going to change the climate of the earth either.

During the worst of the illness, I thought to myself, despite all the inflation of prices, the disruption of life government policy has caused, I still got it and must suffer through it. While many of us will get it, we all, in the end, suffer alone. And so, must my fellow citizens. Government cannot save us.

The chief job of any public officials is to protect the liberty of its citizens.

Having just come through this experience, I have to say the fear mongers have done a great disservice to the world. The virus is nasty to be sure, but not so much nastier than other illnesses I have had. Such concentration on ineffective vaccinations while largely ignoring, dare we say even prohibiting, the development of treatments, looks particularly stupid.  This is particularly so as it becomes clear the vaccines don’t work as advertised and that variants and boosters will be in a constant arms race.

My wife and I had to jump through a number of hoops to get the ivermectin we wanted. The government did not only not help, it actually actively got in the way of us helping ourselves. Big media and much of the medical profession were equally useless.

Respecting and fearing are two quite different things. Taking steps to inform people objectively, giving them broad choice for their individual circumstances, respecting their autonomy to make decisions, respecting their property, prosperity, and liberty; all seem to be much better than the one size fits all dictatorial panic from “experts” like Dr. Fauci and Governor Hochul.

When you look at the actual results of policy, Sweden and Florida, look so much better than Austria and New York, it can’t be ignored. And if the health outcomes are not demonstrably better in Austria and New York, how can these constant panic attacks by the government be justified?

It is time for government and health professionals to grow up and show some maturity. Most of us will survive this thing, but we may not survive the destruction to society these Covid policies are inflicting.

We have reached a point where the governmental reaction to Covid poses a greater threat to both health and liberty than the virus itself. Respect the power of the virus but governmental panic neither stops the virus nor helps the people.

As government becomes so much more entangled in our lives, it is worth asking, if I am going to get it and suffer with it, is the government over reach in my interests or theirs? And why in the heck are our tax dollars being used to develop this plague, that was then set upon the land?

The virus needs to be respected but irrational fear is hardly a helpful public policy.

While the government did little to get me through this virus, I have renewed respect for the wonderful body God gave me. I took some meds, drank water, and slept. My immune system, which runs pretty much on its own, did the rest. That is true for most Americans and that is why about 99% of us will survive.

That is something truly to be thankful for.

 

 

 

Biden’s Climate Power Grab Via Trillions of Dollars in Annual Federal Procurement

Estimated Reading Time: 3 minutes

Spending by federal agencies is governed by the extensive Federal Acquisition Regulations or FAR for short. In response to a Biden executive order, the FAR Council is conducting a silly public inquiry as to how climate change should be factored into federal spending. The Federal Government spends over $6 trillion a year so this is a very big deal.

The concept is ridiculous and some of the ideas are illegal but this foolish agency action deserves serious attention. The FAR Council has issued an Advanced Notice of Proposed Rule Making (ANPRM) titled “Federal Acquisition Regulation: Minimizing the Risk of Climate Change in Federal Acquisitions“. Comments are due by December 15. I urge people to comment.

See https://www.regulations.gov/document/FAR-2021-0016-0001

Advanced Notices like this are asking for ideas prior to proposing regulations, including that the whole idea is nuts. One of the worst things mentioned is that in competitive procurements agencies should give preference to bidders who are cutting their emissions. I cannot believe this is legal but there it is.

The ANPRM includes this list of leading questions:

(a)How can greenhouse gas emissions, including the social cost of greenhouse gases, best be qualitatively and quantitatively considered in Federal procurement decisions, both domestic and overseas? How might this vary across different sectors?

(b) What are usable and respected methodologies for measuring the greenhouse gases emissions over the lifecycle of the products procured or leased, or of the services performed?

(c) How can procurement and program officials of major Federal agency procurements better incorporate and mitigate climate-related financial risk? How else might the Federal Government consider and minimize climate-related financial risks through procurement decisions, both domestic and overseas?

(d) How would (or how does) your organization provide greenhouse gas emission data for proposals and/or contract performance?

(e) How might the Federal Government best standardize greenhouse gas emission reporting methods? How might the Government verify greenhouse gas emissions reporting?

(f) How might the Federal Government give preference to bids and proposals from suppliers, both domestic and overseas, to achieve reductions in greenhouse gas emissions or reduce the social cost of greenhouse gas emissions most effectively?

(g) How might the Government consider commitments by suppliers to reduce or mitigate greenhouse gas emissions?

(h) What impact would consideration of the social cost of greenhouse gases in procurement decisions have on small businesses, including small disadvantaged businesses, women-owned small businesses, service-disabled veteran-owned small businesses, and Historically Underutilized Business Zone (HUBZone) small businesses? How should the FAR Council best align this objective with efforts to ensure opportunity for small businesses?

The questions imply proposals that clearly make federal spending an instrument of alarmist policy. Suppliers are required to report their greenhouse emissions and to take steps to reduce them. The result can only be to drive up the cost of goods and services, which taxpayers pay for.

I see no statutory authority for this nonsense. Surely only Congress can make rules like this. Agencies cannot just decide what to buy based on Biden’s climate power agenda.

Some of this is truly far out, like asking procurement officials to measure the life cycle emissions of products and services. Complex products up to and including warships can have components, sub-components, etc., from all over the world, and lead long complex lives. In fact, the Defense Department is a lead agency in this ANPRM, as is NASA.

Imagine trying to measure the life cycle emissions for $6 trillion a year’s worth of products and services, and then basing procurement decisions on these measures. This is truly absurd.

There is also this vaguest of concepts: the “climate-related financial risks” to the Federal Government, which are supposed to be both mitigated and minimized. The real risk here is doing silly stuff in the name of climate alarmism.

And of course, there is the nutty “social cost of greenhouse gases”. This goofy number is claimed to measure to the dollar the damage done over the next 300 years by a ton of today’s emissions. I am not making this up!

The Biden Administration is trying to grab power it does not have, using regulations that have no statutory authority. I urge people to comment, especially saying how stupid and dangerous this proposed rule-making really is.

*****

This article was published on November 26, 2021, and is reproduced with permission from CFACT, The Committee for a Constructive Tomorrow.

Challenging Technocensorship, Rutherford Institute Appeals to Federal Court to Prohibit Facebook From Censoring COVID-19 Vaccine Critics

Estimated Reading Time: 2 minutes

Rutherford Institute Appeals to Federal Court to Prohibit Facebook From Censoring COVID-19 Vaccine Critics

Warning against the rising threat to free speech posed by the government’s collusion with large technology companies in order to regulate and control what ideas can be shared on the internet and through social media, The Rutherford Institute has asked a federal appeals court to reverse a lower court ruling and prohibit Facebook from censoring and de-platforming critics of the COVID-19 vaccine in violation of the First Amendment. In calling on the Ninth Circuit Court of Appeals to allow the lawsuit in Children’s Health Defense v. Facebook to move forward, Rutherford Institute attorneys argue that Facebook acted in concert with U.S. government officials and agencies to suppress and punish Children’s Health Defense for sharing information critical of the COVID-19 vaccine.

We should all be alarmed when prominent social media voices are censored, silenced and made to disappear from Facebook, Twitter, YouTube and Instagram for voicing ideas that are deemed politically incorrect, hateful, dangerous, extremist or conspiratorial,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “At some point, depending on how the government and its corporate allies define what constitutes ‘extremism,’ we might all be considered guilty of some thought crime or other and subjected to technocensorship.”

Founded by Robert F. Kennedy Jr., Children’s Health Defense (CHD) is a nonprofit organization dedicated to ending childhood health epidemics by exposing causes, eliminating harmful exposures, seeking justice for those injured, and establishing safeguards to prevent future harm. CHD, an outspoken critic of the proliferation of childhood vaccines, seeks to inform the public about vaccines and the health dangers posed by vaccines and wireless technologies. CHD’s mission has brought it in conflict with the pharmaceutical industry, which obtains huge profits from the sale of vaccines; the United State government, which accepts millions of dollars in funding from the pharmaceutical industry; and big-tech internet companies that profit from expanded wireless technologies. Crucial to CHD’s mission of educating the public is its use of social media, including Facebook, to provide links to studies and information provided by experts on public health that exposes the dangers of vaccines. However, since January 2019, Facebook has waged a campaign to discredit CHD: repeatedly posting labels and overlays on CHD’s Facebook page labeling information provided as “false,” preventing persons visiting CHD’s Facebook page from making donations to CHD; and otherwise asserting that CHD violated Facebook’s terms of service by posting false information. In August 2020, CHD filed a lawsuit alleging that Facebook’s actions, in retaliation for CHD’s speech critical of vaccines and wireless technologies, violated the First Amendment’s guarantee to freedom of speech. The lawsuit alleges that Facebook acted at the behest of and in concert with the U.S. government to suppress “vaccine misinformation.” In June 2021, the U.S. District Court for the Northern District of California granted Facebook’s motion to dismiss the First Amendment lawsuit. The social media giant argued that because it is a private entity, it is not subject to the First Amendment.

The Rutherford Institute, a nonprofit civil liberties organization, provides legal assistance at no charge to individuals whose constitutional rights have been threatened or violated and educates the public on a wide spectrum of issues affecting their freedoms.

*****

This article was published on November 9, 2021, and is reproduced with permission from The Rutherford Institute.

15 States Threaten To Pull $600 Billion From Banks That Won’t Give Equal Service To Energy Industry

Estimated Reading Time: 3 minutes

Fifteen state financial officers sent a letter to U.S. banks last week noting $600 billion in assets they pledge to take elsewhere if the financial institutions embrace corporate wokeism and prohibit financing to the fossil fuel industry.

Led by West Virginia Republican Treasurer Riley Moore, the group promised “collective action” in the form of an “economic boycott.”

“Just as each state represented in this letter is unique in its governing laws and economy, our actions will take different forms,” they wrote in the letter obtained by The Federalist. “However, the overarching objective of our actions will be the same – to protect our states’ economies, jobs, and energy independence from these unwarranted attacks on our critical industries.”

Signatories to the letter putting banks on notice include chief financial officers from Arizona, Arkansas, Idaho, Louisiana, Missouri, Nebraska, North Dakota, South Carolina, South Dakota, Utah, Wyoming, Alabama, Texas, and Kentucky, in addition to West Virginia.

“How can we as states get dollars from severance taxes and then park it in banks that are at the same time trying to diminish those dollars by trying to boycott our industries?” Moore said in an interview with The Federalist. “This is just more of the same from these woke capitalists, globalist interests out there when it’s them trying to dictate to us the way we need to live our lives.”

Asked why more states haven’t joined the letter, considering at least 22 state financial offices are run by Republicans, Moore said it was a consequence of standard hesitancy.

“I do believe there are going to be more states that are going to join this coalition effort. I think they want to see a little bit of how this plays out,” Moore said. “How long are we just going to take it in the face and not do anything?”

President Joe Biden has been aggressive in quickly curtailing oil and gas development as promised on the campaign trail. Beyond the illegal suspension of new leases on federal land, the prohibition of new drilling sites on major untapped reserves, and higher fees in the pipeline for new energy exploration permits, however, it’s the administration’s pressure on Wall Street to refuse investment in the capital-intense industry that’s dealt the biggest blow to producers, spiking prices at the pump in the process.

“We can’t get capital because they’re putting so much pressure on banks not to lend to us in the name of climate change,” explained Kathleen Sgamma, president of the Denver-based industry trade group Western Energy Alliance.

Biden’s nominee for an important regulatory role at the Treasury Department however, shows no sign of an administration easing up on Wall Street. Cornell Law Professor Saule Omarova, who was tapped to lead the Office of the Comptroller of the Currency, has said she wants fossil fuel industries to “go bankrupt.”

If confirmed, Omarova would lead an agency tasked with “ensur[ing] banks and federal savings associations operate in a safe and sound manner, provide fair access to financial services, treat customers fairly, and comply with applicable laws and regulations.”

Considering the administration’s crusade against fossil fuels, it’s conceivable Omarova would weaponize the department to deter investment in an industry vilified by Democrats as single-handedly destructive to the planet.

In 2017, Omarova already urged Congress to delegate a “golden share” responsibility to federal agencies, which she defined as “a wide range of legal arrangements giving the government special, exclusive, and nontransferable corporate-governance rights in privately owned enterprises.”

State financial officers who are engaged in the tug-of-war with the Biden administration wrote in their letter last week their taxpayers would not tolerate public funds being managed by institutions that destroy economies and Americans’ health in the name of climate change.

“We have a compelling government interest when acting as participants in the financial services market on behalf of our respective states, to select financial institutions that are not engaged in tactics to harm the very people whose money they are handling,” they wrote. “Any financial institution that has adopted policies aimed at diminishing a large portion of our states’ revenue has a major conflict of interest against holding, maintaining, or managing those funds.”

*****

This article was published on November 30, 2021, and is reproduced with permission from The Federalist.

Judge Stops Federal COVID-19 Vaccine Mandate in Medicare, Medicaid Facilities in 10 States

Estimated Reading Time: 3 minutes

U.S. District Judge Matthew T. Schelp on Monday ordered a preliminary injunction against the Biden Administration, stopping mandated COVID-19 vaccinations for health care workers in Centers for Medicare and Medicaid Services (CMS) facilities.

“Because it is evident CMS significantly understates the burden that its mandate would impose on the ability of healthcare facilities to provide proper care, and thus, save lives, the public has an interest in maintaining the ‘status quo’ while the merits of the case are determined,” Schelp wrote in a 32-page memorandum and order in the U.S. District Court in the Eastern District of Missouri.

“This is a significant ruling and the first of its kind in the country,” Schmitt told reporters. “What the court said today was CMS and the Biden administration has no statutory authority to do this, none whatsoever.”

Starting in late October, Schmitt led coalitions of states in filing three lawsuits against federal vaccine mandates – for federal contractors and federally contracted employees, for the Occupational Safety and Health Administration’s mandate on private employers with 100 or more employees, and CMS.

The Fifth U.S. Circuit Court of Appeals in New Orleans blocked the private-sector OSHA mandate earlier this month.

Schmitt said Monday’s ruling will help all Missourians and all served in CMS facilities.

“Our office may have led the charge on this, but it is the health care workers in Missouri and across the country, it’s the rural hospitals here and elsewhere facing certain collapse due to this mandate, and it’s the patients of those hospitals who are the real winners today,” Schmitt said.

Judge Schelp stated five times in the ruling that it’s likely Schmitt and the coalition will ultimately succeed if the ruling is appealed. The ruling only applies to the 10 states in the lawsuit – Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming.

The ruling stated CMS lacked clear authorization from Congress to mandate the COVID-19 vaccine. Currently, CMS doesn’t require any vaccinations for health care workers.

“CMS failed to adequately explain its contradiction to its long-standing practice of encouraging rather than forcing – by governmental mandate – vaccination,” Schelp wrote. “For years, CMS has promulgated regulations setting the conditions for Medicare and Medicaid participation; never has it required any vaccine for covered facilities’ employees – despite concerns over other illnesses and their corresponding low vaccination rates.”

Schelp also stated CMS violated its own regulations by not accepting comments on policies.

“Moreover, the failure to take and respond to comments feeds into the very vaccine hesitancy CMS acknowledges is so daunting,” Schelp wrote.

Schelp highlighted the vaccine mandate’s negative impact on staffing at rural hospitals.

“As an example, for a general hospital located in North Platte, Nebraska, implementation of the mandate would result in the loss of the only remaining anesthesiologist,” Schelp wrote. “Understandably, without an anesthesiologist, there could be no surgeries – at all. Thus, such a loss irreparably causes a cascading effect on the entire facility and a wide range of patients. Other examples show the mandate’s far-reaching implications not just on the administration of health care itself, but the functioning of the facilities in general.”

“The truth is COVID is with us and there is always going to be a variant,” Schmitt said. “But I think the people have had enough of the government locking people down. They have had enough of government instituting mask mandates and vaccine mandates. Every time there’s an overreach, we’re going to push back.”

Bureaucrats who have never driven the back roads of Missouri or visited its rural hospitals have no idea of the effects of the vaccine mandate, Schmitt said.

“Here in flyover country, we’ve had enough and we’re going to fight back every single time they try to take our freedoms away,” Schmitt said.

*****

This article was published on November 29, 2021, and is reproduced with permission from The Center Square.

COPYRIGHT © 2021 PRICKLY PEAR COMMUNICATIONS, LLC. ALL RIGHTS RESERVED.