Power & Market
On July 2, 2019, President Donald Trump nominated Mrs. Judy Shelton to join the Federal Reserve Board of Governors. She has a distinguished career as an economist and even co-authored a book called Roads to Sound Money, which supports ideas such as sound money and individual liberty. To those who support the free market and monetary/fiscal responsibility, her nomination is nothing short of a Godsend. But as of Tuesday’s vote, the Republican majority Senate still has not confirmed her nomination. Despite this process being highly bureaucratic and requiring many if’s, she actually still has a shot! CNN reports:
The final vote was 47-50.
The 50 votes against Mrs. Shelton include:
Senate Majority Leader Mitch McConnell, who had initially voted for the nominee, switched to vote against her, giving him the procedural right to bring her up for another vote in the near future.
Mitch switched his vote, utilizing a “procedural right,” something most citizens could never cite nor likely even knew existed.
Sen. Chuck Grassley, a Republican from Iowa, announced he would have to quarantine after potential exposure to Covid-19 and miss the vote -- his first missed vote in 27 years. He joins Florida Republican Sen. Rick Scott, who announced Saturday he would be away from the Capitol for the same reason.
“If” the two Republican Senators were in attendance, and “if” Mitch voted for Shelton, then things would look much different; but that did not happen. So where does that leave things?
Should there be another vote, CNN goes on to say, it will likely be scheduled after Thanksgiving. But this complicates things as:
Sen.-elect Mark Kelly, a Democrat who won a GOP seat in the special election in Arizona, is expected to be sworn in, meaning there would likely be one more Democratic "no" vote…
This wouldn’t bode well, as the Wall Street Journal reports that Democrat Mark Kelly would be sworn in on Nov 30, if combined with the three Republicans Mitt Romney, Susan Collins and more recent “dissenter” Lamar Alexander, it would make an already slim “yes” confirmation all the more difficult.
Once the math, voting strategy, and party lines become drawn, a new question arises:
When did the Federal Reserve governor nomination become “partisan politics” in Washington?
Even the Wall Street Journal notes:
Party-line votes for Fed board positions haven’t occurred before, reflecting the institution’s apolitical nature.
For all that’s been said about this “controversial” pick, Mrs. Shelton would have only one vote on a seven member board. She’d hardly be a threat to stopping the (unofficial goal of) US dollar debasement overnight, nor would she be able to implement a gold standard anytime soon. But what she has already done, even if inadvertently, is illustrate various problems with the way this system of democracy and central banking works. Since her nomination, we’ve seen countless displays of this “system,” which appears to not even help those it claims to serve.
Republican Senator Lamar Alexander displayed this on Monday when he came out against Mrs. Shelton, as CNBC quotes him saying:
I don’t want to turn over management of the money supply to a Congress and a President who can’t balance the federal budget.
Lamar is just one of 100 elected Senators, chosen “by the people” to represent their interests. In this case, they must confirm someone to serve on the board of governors to manage the nation’s central bank, an idea championed by many anti-capitalists, including Karl Marx.
Nonetheless, as the system is currently designed, it requires elected Senators like Alexander to be charged with managing the economic affairs of the entire nation; whether these senators understand economics is besides the point. Luckily, in instances where an elected official doesn’t understand, or wishes to be rid of someone with an idea they disagree, they can employ demagoguery to sway public opinion. As noted above, the Senator can paint a picture that the nation’s money supply would be somehow handed over to the President and Congress. This is misleading because it completely misunderstands the notion of sound money, limited government, and the control of the money supply, all which underline the gold standard.
If Judy Shelton does not get confirmed to the Federal Reserve, we lose an opportunity to expand the knowledge base at the Fed. We’ll have to add that to the list of things gone wrong in 2020, then move on. This leads us to the inevitable, unpleasant question: If not Judy, then what must the next candidate say or do in order to appeal to both sides of the political aisle?
Watching as Biden and Trump supporters went at it, I found myself bewildered by what was hardly being discussed, by the dearth of coverage of the serious issues facing us today. Differences between competing visions for the future have never been greater, yet even as Americans process election results, the focus remains nearly entirely on ad hominem arguments. Republicans can’t believe “Sleepy Joe” may have now wrapped it up, while Democrats seem apoplectic “bullying Trump” is fighting back, claiming he threatens the fabric of our democracy, while ignoring their own maneuverings years past.
None of this is surprising in our heavily partisan environment. Easier to craft salacious headlines and lob heated charges against a candidate than to enumerate policy differences driving current results, to thoughtfully analyze what brought us to this point. Yet those differences drew many to the polls this November. And it’s ultimately what drew me into checking out Jo Jorgensen. In my mind, policies still count.
Late in the game I began quietly supporting the Libertarian candidate. “Quiet” because I endeavored to remain at peace with friends and family. To speak up often meant feeling anger and scorn. Instead, I kept my mouth shut. Increasingly, however, I’ve been filled with growing repugnance, watching as the disputed election drags on. The principles at stake matter, yet the media gives them short shrift. It’s why, even if libertarians are kept from debates and under-reported, going forward I will more openly support their positions and ideas. Democracy itself was once only the germ of an idea into which flesh and blood breathed life.
However far from current policy some of their positions may seem, libertarians offer proposals that honor the agency of every citizen. They are filled with possibility and hope.
As Jorgensen laid out on her website, the War on Drugs has long been racist and destructive. Americans have died in droves. Total deaths far exceed the deaths from Covid 19, yet where is the focused plan of attack? We can’t mandate masks for that. And where is real reform of our criminal justice and prison systems? For decades we have seen bluster with little progress. Minority communities in particular continue to be devastated. And forget about serious immigration reform. Beyond the hype, nobody has made more than a dent. Then there’s the devastation of our environment along with our undeniable need for energy. Both major parties play games with environmental claims and data, leading to much distrust. Wind power, for example, looks good on paper, if you only compare it to the pollution from fossil fuels while ignoring its slaughter of birds and the replacement of the blades with short lifespans. Challenging to break down, those fields of gigantic blades don’t decompose. Yet Americans are inventive. By removing governmental barriers to entry, as Jorgensen proposes, small innovators and businesses, where the greatest innovation comes, will once again stand a fighting chance. They can meaningfully compete against corporations who now receive preferential treatment from the federal government.
Perhaps most important for the world of my grandchildren, I’ve been won over by the libertarian idea of neutrality, the belief that we, as a nation, have no business being imperialists. Humanitarian “interventionists,” assisting with aid, certainly. Americans have famously opened up their hearts when global disasters strike. But better to take Jorgensen’s position in my mind, to use Switzerland as our model, neutral and well-armed, open to the world for trade and for tourism, while remaining secure in our defense. I have only to look around at our sons and daughters who served our military to see the cost of our decades of arrogance and folly. Our veterans’ brokenness, continually under-served by our government, remains a true national disgrace.
The list of differences I have with the major political parties is a long one, from allowing seizure of private property to regulating love. And while I’m well aware some of these positions can trigger outrage in many, are libertarian ideas really that improbable? Perhaps. In today’s environment, it’s a battle to be sure. But are they impossible to enact? Far from it. Though they are dangerous for those invested in the status quo.
Oscar Wilde once said, “An idea that is not dangerous is unworthy of being called an idea at all.”
In the aftermath of such a tumultuous and painful year in America, maybe it’s time to consider a new path.
Recently, I told my wife that the 2020 election follies made me think of John Milton. She commented that I may have been the only one in America to make that connection to the second most important author in the English language, after Shakespeare, best known for his poetry. After all, very little of this year’s politics has been poetic (though it could be argued to fit somewhere in Paradise Lost). I was thinking of Milton’s prose.
The primary reason is that well before America was founded, Milton famously argued for freedoms of speech and the press, and against censorship in England. His defense of freedom of conscience and religious toleration later powerfully resonated with America’s founders, as is most evident in the First Amendment to the US Constitution.
In contrast, we have of late been experiencing a widespread attack of censorship, which has not just limited citizens’ freedom of expression, but undermined Americans’ ability to inform themselves before voting for who will represent them. Because it originated with private actors rather than government, even though the intent was to dictate the government chosen, it was not a violation of the First Amendment. But the consequences of multiple powerful actors putting all of their thumbs on the same side of the scales they intended voters to use was, and remains, a serious threat to America. So it is worth remembering John Milton’s words on behalf of freedom of belief and expression, and their connection to our ability to discover truth.
- Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.
- Truth….Let her and falsehood grapple.
- Who ever knew Truth put to the worse in a free and open encounter?
- Truth…needs no policies or stratagems…to make her victorious. These are the shifts and the defenses that error uses against her power.
- There is no learned man but will confess he hath much profited by reading controversies—his senses awakened, his judgment sharpened, and the truth which he holds firmly established. If then it be profitable for him to read, why should it not at least be tolerable and free for his adversary to write…it follows then, that all controversy being permitted, falsehood will appear more false, and truth the more true; which must needs conduce much to the general confirmation of an implicit truth.
- If it come to prohibiting, there is aught more likely to be prohibited than truth itself.
- No institution which does not continually test its ideals, techniques and measure of accomplishment can claim real vitality.
- When complaints are freely heard, deeply considered, and speedily reformed, then is the utmost bound of civil liberty obtained that wise men look for.
- Knowledge forbidden? Suspicious, reasonless. Why…?
- Truth and understanding are not such wares as to be monopolized.
- When language in common use in any country becomes irregular and depraved, it is followed by their ruin and degradation. For what do terms…which are at once corrupt and misapplied, denote but a people listless, supine, and ripe for servitude?
- How oft [have] nations gone corrupt…by their own devices brought down to servitude.
- Discern…in what things persuasion only is to work.
Not only was Milton an important advocate for freedom to discover truth without artificial constraint, he was an influential defender of other liberties whose defense relies upon that discovery. America’s founding generation echoed him in several ways. In fact, one could say that is best reflected in the Declaration of Independence’s assertion of unalienable rights to “life, liberty and the pursuit of happiness,” which, while more famously connected to the thought of John Locke, can also be collapsed into the word liberty, as Milton used it, as our right to life is part of our liberty and our ability to pursue happiness is the result of liberty.
In contrast, much of what has been proposed by politicians this year has involved widespread invasions of our liberties, disguised by focusing only on those promises to give, without much mention of the corresponding unavoidable promises to take from others to do so. His words sharpen our ability to judge that deviation from the ideas that created America.
- No man…can be so stupid to deny that all men naturally were born free, being the image and resemblance of God himself.
- The whole freedom of man consists either in spiritual or civil liberty.
- [God] created them free and free they must remain.
- Liberty…who loves that, must first be wise and good.
- None can love freedom but good men; the rest love not freedom, but license, which never hath more scope than under tyrants.
- Nations grow corrupt, love bondage more than liberty.
- [Those] with their freedom lost, all virtue lose.
- Liberty of conscience…above all other things ought to be to all men dearest and most precious.
- Liberty hath a sharp and double edge, fit only to be handled by just and virtuous men; to bad and dissolute, it becomes a mischief unwieldy in their own hands: neither is it completely given, but by them who have the happy skill to know what is grievance and unjust to a people, and how to remove it wisely; what good laws are wanting, and how to frame them substantially, that good men may enjoy the freedom which they merit, and the bad the curb which they need.
- Love Virtue, she alone is free.
- Is it just or reasonable, that…voices against the main end of government should enslave [those] that would be free?
- They who seek nothing but their own just liberty, have always right to win it and to keep it, whenever they have power, be the voices ever so numerous that oppose it.
- Who can in reason then or right assume monarchy over such as live by right his equals, if in power or splendor less, in freedom equal?
- The power of Kings and Magistrates is nothing else, but what is only derivative, transferred and committed to them in trust from the People, to the Common good of them all, in whom the power yet remains fundamentally, and cannot be taken from them, without a violation of their natural birthright.
- It is lawful…for anyone who have the power to call to account a tyrant.
Americans have been major beneficiaries of John Milton’s literary blows for liberty against tyranny through his political impact on our founders. But this year’s dramatic violations of our freedom to seek the truth and express our views to one another, and its widespread proposals to violate other core liberties, show that heritage to be at serious risk. Revisiting Milton’s arguments in these areas is a good way to recognize the risks we have already been exposed to and their ominous implications for the future and a good source of reinforcement for the principles our country was founded upon. And at their heart is his conclusion that free we must remain.
Trump’s lady-in-waiting for the Federal Reserve, Judy Shelton, is losing Republican support by the day. The Washington Post unleashed its comeliest columnist, Catherine Rampell, to finish off Shelton, whose primary negative is her past support for the gold standard and her questioning the need for the central bank at all.
Adherents of the Austrian school of economics have been cuckoo for Shelton for those very reasons, but, Rampell describes the Fed nominee as “a demonstrably unqualified partisan quack.”
Rampell claims a gold standard “might be popular among the right-wing fringe, but it was abandoned worldwide long ago and remains almost unanimously rejected by economists. For good reasons, including that gold prices are volatile. Linking the dollar to gold can also restrict liquidity when the economy needs it most—as happened during the Great Depression.”
She forgets: the Great Depression was inevitable given the boom the Fed created in the years before. “The Federal Reserve System launched a further burst of inflation in 1927,” wrote Hans F. Sennholz, “the result being that total currency outside banks plus demand and time deposits in the United States increased from $44.51 billion at the end of June 1924, to $55.17 billion in 1929. The volume of farm and urban mortgages expanded from $16.8 billion in 1921 to $27.1 billion in 1929. Similar increases occurred in industrial, financial, and state and local government indebtedness. This expansion of money and credit was accompanied by rapidly rising real-estate and stock prices. Prices for industrial securities, according to Standard & Poor's common stock index, rose from 59.4 in June of 1922 to 195.2 in September of 1929. Railroad stock climbed from 189.2 to 446.0, while public utilities rose from 82.0 to 375.1.”
What were once referred to as panics, then depressions, and now recessions are the healing of the economy from inflationary and speculative booms, which lead to malinvestment and dangerous economic distortions. “The ensuing recession is a period of repair and readjustment. Prices and costs adjust anew to consumer choices and preferences,” explained Sennholz.
As Ms. Rampell writes, today’s economists, trained in the modern Keynesian framework, believe corrections aren’t allowed and malinvestment should be enabled by cheap money forever, with the result being zombie companies wasting precious capital. Capitalism requires success and failure. A link from gold to the dollar keeps government and private business in check.
“Shelton’s confirmation could represent a point of no return for corrupting the mission and functionality of the Fed,” writes Rampell, “and destroying whatever bipartisan resolve remained to not tank the economy for political gain.”
In his book Money of the Mind: Borrowing and Lending in America from the Civil War to Michael Milken, Jim Grant wrote, ”the pro-Federal Reserve System forces had promised to uphold the gold standard and to defend the new Federal Reserve notes against the well-observed tendency of government-backed currencies to depreciate.”
Elihu Root, Republican senator from New York, spoke eloquently and at length against the Federal Reserve Act, with his primary argument being that the central bank could be inflationary. While it didn’t have to be, he insisted it would be. Fed proponents claimed the country would be fortunate to have an “elastic” currency. “Root retorted that it would rather be an ‘expansive’ one—all growth and no contraction,” Grant wrote.
Senator Root was prescient beyond his dreams. Ms. Shelton might bring a tiny bit of historical wisdom to the arguments in the Eccles building.
In addition to the gains in the stock market on Monday, uncertainty about covid, and the economy, is another concern regarding the outcome of this election, as reported by CNN:
This week, all eyes are on the Trump-appointed General Services Administration administrator, Emily W. Murphy, to recognize Joe Biden as the winner of the election and president-elect.
This high-ranking bureaucrat has the job of “officially affirming Biden has won the election on behalf of the Trump administration,” something which, so far, has yet to occur. Moreover, the US Senate outcome is still not officially set, although Republicans had a narrow lead at the start of the week. Assuming Biden is inaugurated and the Republicans hold the Senate, what, if anything, could this mean for the Fed?
First, Judy Shelton’s long shot at joining the Fed has now become an even “longer shot.” Considering Trump couldn’t even persuade fellow Republicans like Mitt Romney or Susan Collins to vote for her, it’s unlikely Biden would have much more success. The nominations expire when Congress is adjourned at the end of the year. So her appointment probably won’t happen.
As for promotions of central bankers, various reports from the mainstream media are saying Governor Lael Brainard could be asked to leave the Fed’s inner circle to become secretary of the Treasury, making her the first woman in history to hold that position.
Regarding the role of the Fed chair itself, it remains to be seen whether Biden would prefer to continue with Powell. As a registered Republican, Powell would likely have support from a Republican-controlled Senate. In the middle of a global pandemic, as David Wessel of the Brookings Institution said to the Washington Post:
No president likes to replace generals in the middle of a war.
Of course, sometimes the “war” can be waged by the state upon its own people, as in the case of the war on drugs or the war on poverty, etc. In the case of monetary policy, the war waged by the inflationists on the general public continues. We are often told mild inflation is good and to not worry about the money supply, the debt levels, and currency debasement. In the press, Reuters explains:
Modern Monetary Theory, the idea that governments which print their own money can and should spend whatever they want provided it’s fuelling [sic] economic growth and productive employment. Biden is already a partial convert, with Stephanie Kelton, an MMT proponent, on a task force that in July laid out 110 pages of policy recommendations.
Imagine the Fed in 2021; no Judy Shelton, a governor with respect for sound money. Combine this with a president considered a “partial convert” of MMT, we can only imagine what kind of money expansion programs will be crafted. Maybe Biden takes the MMT spending-to-prosperity approach, then at least we can have a (very) faint hope that a Republican-controlled Senate could try to stop him. If so, imagine a gridlocked US Congress; fiscal stimulus bills would become very difficult to pass. Who would be charged to “fuel economic growth” if not the Fed?
While we wait to see who will head our government into the new year, and while we expect a new change in government could also bring changes to the Fed, we cannot reasonably expect these changes will amount to anything more than superficial. Unless a hard money advocate, or someone with an understanding of free markets, whether from within Congress or the Fed, is appointed, there is little to no indication that policies will change drastically.
Bernanke lowered interest rates and increased the money supply during the last recession. Jerome Powell did the same during this recession. Until someone in a position of authority can explicitly address the problems, and eventually reject this doctrine, it won’t make much difference who runs the central bank. The Fed seems to be running on autopilot, sticking to accommodative policies, with press conferences between policy decisions to remind us this is indefinite. Should we have a lame duck presidency, expect the Fed to do “whatever it takes” to get the wheels of commerce turning again.
Americans anxiously wait for the final outcome of this election, the Federal Reserve continues on its immovable course towards nationalization of the means of production. Ironically, we vote for a president who has limited power, but a hand on the nuke button; whereas, we don’t vote for the Fed chair, who has nearly unlimited power, and a hand on the economic equivalent to the nuke button; the ability to conjure money out of thin air.
As for Fed chair Jerome Powell, who kept rates on hold, his Q&A after the committee meeting revealed that regardless who is president, as long as the Fed can expand the balance sheet at will, they continue holding all the cards. First, the good news, according to Powell:
The overall rebound in household spending owes in part to federal stimulus payments and expanded unemployment benefits, which provided essential support to many families and individuals.
It is truly owed to the Federal Reserve and government intervention that more money was digitally made into existence, of which some went into household spending.
However, despite the increase in money supply and debt levels, comes the bad news:
As we said in September and again today, with inflation running persistently below 2 percent, we will aim to achieve inflation moderately above 2 percent for some time so that inflation averages 2 percent over time and longer-term inflation expectations remain well anchored at 2 percent.
Per the Fed, life did not become as unaffordable for the masses as they had hoped, therefore they expect to maintain an “accommodative stance of monetary policy” until prices rise enough, meeting their inflation objective.
And, at last, the confusing news, the part where the line between fiscal and monetary policy becomes blurred:
Fiscal policy can do what we can, which is to replace lost incomes for people who are out of work through no fault of their own. And then what we can do is we can obviously support financial stability through our lending programs, and we can support demand through interest rates and asset purchases and that sort of thing.
Perhaps it’s the size of the asset programs by the Fed or the spending programs of the government, that ideas around the two are continually intertwined. Often, Powell must define the difference between the two, in this instance noting that the government can take action such as replacing lost wages, while the Fed can buy government bonds.
Elected officials have the power to tax and spend and to make decisions about where we, as a society, should direct our collective resources.
True, Congress can tax and spend, but what the chair doesn’t seem to admit is that taxation only provides so much money, compared to spending which appears to be nearly limitless. Of course, what makes up the shortfall when spending exceeds taxation revenue, if not from debt? Considering the Fed owns $4.5 trillion of US Treasurys, of a nation with a $27 trillion debt, we should come to terms with understanding that the Fed is financing a significant portion of the US government’s spending activities.
Yet, it’s difficult to argue with one of the most powerful men on the planet when he says:
And so if the idea is money financed fiscal policy, that's not something that we would consider. So that—what I mean by that is really, you know, the central bank is really funding fiscal activities of the government fairly directly. No. That's not something we do.
As for the money expansion, which is not “money-financed fiscal policy,” we should listen when he says:
So when I say we're not out of ammo, I'm looking at, you know, a couple of our tools mainly. As I mentioned, the asset purchase program.
The majority of people will undoubtedly be watching to see how the election is called and the looming fallout, but we must remember: the government is financed by the people and also by its central bank. The trajectory we are on is one where the Fed’s balance sheet will continually increase, with a corresponding decrease in the wealth and freedom of the individual. How this fits in with the concept of a strong republic by the people and for the people is anyone’s guess.
The mainstream pro-Biden media is poking fun at Donald Trump’s suggestion that there could be fraud involved in the post-election receipt of mail-in ballots. Apparently they’re not familiar with the election-theft case of Lyndon Johnson, who would go on to become president of the United States.
The entire matter is detailed in Robert Caro’s second book in his biographical series on Johnson. The book is entitled Means of Ascent.
Johnson election theft took place in 1948, when he was running for the Democratic nomination for US Senate against Texas Governor Coke Stevenson, one of the most admired and respected governors in the history of the state.
In the primary election, Stevenson led Johnson by 70,000 votes, but because he didn’t have a majority of the votes, he was forced into a run-off. The run-off was held on a Saturday. On the Sunday morning after the run-off, Stevenson was leading by 854 votes.
As a New York Times review of Caro’s account stated, the day after the run-off election it was “discovered” that the returns of a particular county had not yet been counted. The newly discovered votes were overwhelmingly in favor of Johnson. Then, on Monday more returns came in from the Rio Grande Valley.
Nonetheless, on Tuesday, the State Election Bureau announced that Stevenson had won by 349 votes. Nothing changed on Wednesday and Thursday after the election. On Friday, precincts in the Rio Grande Valley made “corrections” to their tallies, which narrowed Stevenson’s lead to 157.
But also on Friday, Jim Wells County, which was governed as a personal fiefdom by a powerful South Texas rancher named George Parr, filed “amended” returns for what has become famous as “Box 13” that gave Johnson another 200 votes. When all was said and done, Johnson had “won” the election by 87 votes.
It was later discovered that one of Parr’s men had changed the total tally for Johnson from 765 to 965 by simply curling the 7 into a 9.
Where did the extra 200 votes come from? The last 202 names on on the election roll in Box 13 were in a different color ink from the rest of the names, the names were in alphabetical order, and they were all in the same handwriting. When Caro was researching his book, he secured a statement from Luis Salas, an election judge in Jim Wells County, who acknowledged the fraud and confessing his role in it.
As the Washington Post reported, to investigate what obviously appeared quite suspicious Stevenson employed the assistance of Frank Hamer, the Texas Ranger who had trapped and killed Bonnie and Clyde. It was to no avail. Johnson got a friendly state judge to issue an injunction preserving the status quo, after which the Democratic executive committee, by one vote, declared Johnson to be the winner.
Stevenson took the matter to federal court but the Supreme Court punted, declaring that it had no right to interfere with a state election.
So, Lyndon Johnson stole the election and ended up going to Washington as Texas’s US senator. Ironically, if Stevenson had become the state’s senator instead, Johnson would never have been selected to be John Kennedy’s vice presidential running mate and, consequently, would never have been president.
No wonder Donald Trump is worried about those Democrats! For that matter, those Democrats should be just as worried about those Republicans!
On November 2, the United States Supreme Court ruled in the case Taylor v. Rojas. The petitioner in this case was Trent Taylor—an inmate in the Texas criminal justice system. Mr. Taylor alleges that in September of 2013 he was placed in a cell covered in human feces and left there for six days before being moved into a cell that was “freezing” for another four days. Mr. Taylor sued the corrections officers who were responsible for placing him in the cells, claiming that they violated his Eighth Amendment right not to be subjected to cruel and unusual punishment. The corrections officers involved in this case argued that they cannot be held liable for violating Mr. Taylor's Eighth Amendment rights because they have qualified immunity—a legal doctrine that grants sweeping immunity to government officials who engage in egregious violation of rights. The district court and the Fifth Circuit Court of Appeals ruled in favor of the correction officers.
Mr. Taylor then appealed to the United States Supreme Court. The court invalidated The Fifth Circuit Court’s decision, claiming that Mr. Taylor’s rights had been violated and that the corrections officers should not receive qualified immunity because “no reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time.” The case was decided by a 7-to-1 vote with a sole dissent from Justice Clarence Thomas.
As Justice Samuel Alito points out in his concurring opinion, the United States Supreme Court typically avoids hearing cases where there is not an underlying question of how a doctrine or statute should be interpreted. This case did not involve a challenge to qualified immunity itself, but rather challenged the lower court’s application of the doctrine. Typically, the Supreme Court would avoid hearing cases of this type. However, the court decided to rule on this case. This leaves us with a large question: Why did the court feel it was necessary to weigh in on this case?
One possible explanation for their actions is that the court simply saw the facts of this case and decided that they were extreme enough to warrant an intervention. This seems unlikely considering the multitude of cases with similarly horrific fact patterns where the court has refused to grant cert. Such cases include incidents where officers shot a kid lying on the ground while aiming at a family dog, were accused of stealing $225,000, and told a police dog to attack a suspect on his knees with his hands behind his head. When you consider the fact that the court refused to rule on these cases, this interpretation of their actions in Taylor seems unlikely.
Another possible interpretation is that the court was attempting to fix a past mistake in the application of the doctrine. In the past, the court has ruled broadly on the question of qualified immunity. They have granted qualified immunity in many cases where it seems clear they should not have. This sends a message to the lower courts that they are to interpret qualified immunity broadly. It is possible that the court wished to fix this problem by giving an example where qualified immunity does not apply.
While both of these interpretations are possible, it seems more likely that the court is trying to set the stage for a challenge to the doctrine itself. The court recently granted cert in the case Brownback v. King. This case contains a direct challenge to the qualified immunity doctrine and has a horrendous fact pattern. If the court wants to reevaluate qualified immunity in a meaningful way, it would be helpful to have a more carefully defined standard for when it ought to be applied. Taylor might be the court’s attempt at clarifying this standard for this exact reason.
Whatever the reason for the court’s ruling might have been, Taylor got justice. Additionally, the fact that the court ruled against the state in this case should give us hope for future cases. Should they decide to rethink the qualified immunity doctrine this case would be a great place to start.
In the aftermath of Election Day 2020, ballots continue to be counted, states remain undecided, and party lawyers are dreaming about where to invest their upcoming billable hours. One thing we can count on, America’s political institutions are about to face a unique and fascinating challenge to their legitimacy.
For those who have better things to do than closely following late-arriving ballots in swing states, here is where things stand right now:
Joe Biden is poised to be able to claim victory in the election as blue ballots continue to trickle in from high-density urban areas in states like Pennsylvania, Nevada, and Georgia. At the same time, Donald Trump’s team continues to project confidence about Arizona swinging red and counting on military absentee ballots to make up any ground lost in the Peach State. Meanwhile, online sleuths are churning out anecdotal evidence of possible voter fraud and highlighting statistical anomalies in certain vital Democrat areas. As of Friday, they were even still allowed to talk about it on Twitter.
The confusion surrounding this election obviously evokes flashbacks to the Bush-Gore debacle of 2000. To Joe Biden’s advantage, Al Gore was dealing with a Republican state government at the time. Now, most of the states in question have a firmly blue state government, while most of the high-density urban areas are obviously governed by Democrat-controlled machines (none of which are particularly known for either competency or integrity).
Of course, even suggesting that partisan government officials may have more loyalty to their party over the civil religion of “democracy” is outrageous in the eyes of the corporate press.
Luckily, one of the major takeaways of the 2020 election is just how little the public actually thinks of America’s punditry class. After all, five years of nonstop stories about the sexist, white supremacist, unhinged Donald Trump gave rise to the most diverse political coalition the Republican Party has seen since 1960. The only demographic Trump underperformed relative to 2016 was white males. Oddly enough, the Left is not concerned with the privileged white patriarchy.
So where does that leave us?
If we assume, as we should, that the legal system inevitably leaves us with a Joe Biden inauguration, the next few years could be very interesting indeed. America will have a former president, deeply beloved by a base that stood out in the freezing cold past midnight in the tens of thousands during the campaign, who is not likely to go quietly in the night. Would it surprise anyone if Donald Trump boycotts a Biden inauguration? If so, is it possible he would hold a competing rally at the same time the forty-sixth president was being sworn in?
Does anyone doubt the attendance he would draw?
After all, regardless of the legal outcome, America is about to find itself with a president that will be viewed as illegitimate by a large portion of the population—and perhaps even the majority of some states. There is no institution left that has the credibility to push back against the gut feeling of millions of people who have spent the last few months organizing car parades and Trumptillas that their democracy has been hijacked by a political party that despises them.
To his credit, Joe Biden isn’t blind to what he is inheriting either. His problem is that a half century in politics has him out of touch with the America that actually exists. It is likely that Biden will stress bipartisan unity in his administration—a move made easier by the fact that he will need moderate Republicans more than the far-left caucus of his own party. In the past, America’s most hotly contested elections were decided with backroom deals among party bosses. Non-Trump Republicans are currently figuring out their price for standing with Joe Biden over their 2020 nominee.
It would not be surprising to see a Biden administration feature names like Bush, Kasich, or Flake. The problem is that this style of bipartisanship is as dated as the West Wing. The Left and Right want their sides to rule and dominate their enemies, while the center is more motivated by disgust of both sides than the desire for them to just get along.
If this is correct, the Biden administration will end up being precisely what the nonhysterical left always feared: the restoration of a neoconservative-neoliberal uniparty.
Adding to the chaos is the fact that Donald Trump will now be free of the burdens of responsibility that come with governing. America’s forty-fifth president will have the ability to do what he most enjoys: sit back, watch cable news, and start firing away from @realDonaldTrump. That is, of course, until he is predictably deplatformed by Jack Dorsey for being a threat to national unity.
Of course, blowback is not limited to foreign policy blunders by the American empire. Every attempt by those in power to silence Donald Trump going forward will have consequences they are not prepared to deal with.
For example, the second Donald Trump is forced to use a competing social media platform, the concerns about tech monopoly may begin to seem antiquated. Better still, a Trump news network seems inevitable—either built from scratch or by adopting one of the standing second-tier conservative options that currently exist. We can be sure that Donald Trump will never forgive the Murdochs for calling Arizona so quickly on Tuesday.
The majority of America’s mediocre elites residing in Washington and New York City are going to take a Joe Biden presidency as a repudiation of Trumpism. The massive increase in his support suggests otherwise. Their blind arrogance ensures that the anger felt by the masses that brought President Trump to power in 2016 will not go away.
As Ludwig von Mises understood, there are inevitable limitations to a state if the public does not view its leaders as legitimate.
Only a group that can count on the consent of the governed can establish a lasting regime. Whoever wants to see the world governed according to his own ideas must strive for domination over men’s minds. It is impossible, in the long run, to subject men against their will to a regime that they reject.
A Joe Biden presidency may be imposed on red America, but the establishment of old will never be able to persuade the Make America Great Again movement that he is their leader. Thanks to Donald Trump, a large portion of the US are likely to view themselves as the enemies of America’s next president.
Which brings us back to the most fundamental question of modern American politics: What do you do with political orders that no longer serve the interests of their people? How do we treat politically vanquished people who just aren’t going away?
Luckily, there is no reason to fear an economic crisis any time soon… Such an event might really make things interesting.