Learning Res., Inc. v. Trump is Like a BET Cypher, Alternatively Titled "If you rely on IEEPA I feel bad for you son, it provides 99 delegations but tariffs ain't one"

On Friday, in Learning Res., Inc. v. Trump, the Supreme Court held that the International Emergency Economic Powers Act (IEEPA) does not authorize the President to impose tariffs.  The gist of it all is the IEEPA lets the President "regulate imports" which isn't the same thing as taxing or tariffing.  Six justices agreed on this outcome, but there were two different rationales and lots of shade thrown across three concurrences and two dissents.  It was all very hiphop, as if they were in a Federalist cypher.

The cypher started with Chief Justice Roberts writing for himself and Justices Kagan, Sotomator, Jackson, Barrett and Gorsuch, applying the "major questions doctrine" (some newfangled coproma passed off as conservative jurisprudence) which says that "Congress would not have delegated 'highly consequential power' through ambiguous language. These considerations apply with particular force where, as here, the purported delegation involves the core congressional power of the purse."  This means that the party asserting that they were delegated the Congressional power at issue must "point to clear congressional authorization” in the relevant statute.  You may recall that six Justices relied on this doctrine to overrule Joe Biden's student loan forgiveness plan in Biden v. Nebraska.

Justice Kagan then got on the mic to represent herself, Sotomayor and Jackson.  They concurred, but they felt there was no need to invoke the major questions doctrine because "the ordinary tools of statutory interpretation amply support [this] result."  I am an ordinary tool and I agree with them.

Justice Gorsuch, ever the philodox, took it upon himself to get on the mic and write 46 pages (the main opinion was only 21!) bemuting upon everyone else's analysis except the Chief Justice's.  First he essentially accused Justices Kagan and Sotomayor of outcome-based reasoning, picking the winner based on their personal preference rather than a rigorous application of the law.  I'll channel the underpants gnomes and go to third, where he also essentially accused Justices Kavanaugh, Alito and Thomas of outcome-based reasoning but in a slightly nicer way (although he does linger a bit to highlight, albeit politely, the preposterousness of Thomas's dissent).

But second, and remarkably, this quibberdick spilled ink across nine pages to desticate over Justice Barrett's application of the major question doctrine in Biden v. Nebraska!  He's so irked about an opinion from three years ago that he had to drag it into this one.  We all have a guy like this at work.

Justice Barrett did not appreciate having her name on the streets.  Naturally, she channeled her inner Mad Cobra and wrote a concurrence directly addressing Gorsuch, saying "I would not treat this evidence as precedent for a judicial flex."

If you were young and alive in northern New Jersey in the summer of 1992 you undoubtedly are familiar with Mad Cobra's song "Flex."  It's more likely than not that you spent time in a car with a number of other young, alive people with the windows down and this song playing loudly.

Parenthetically, Wikipedia says "Mad Cobra stated that he was on a flight returning from New York, and was watching an exercise video on the in-flight entertainment system, and the lyrics 'How this lady flex like she want to have sex?' came to him. He wrote the lyrics for the song on an air sickness bag in his plane seat and took them to the studio when he arrived in Jamaica."

Perhaps Justice Barrett wrote the opening draft of her concurrence on an air sickness bag too.  Or maybe she's a Rich Homie Quan fan.

The mic then passed to Justice Kagan who explained her reasoning admirably but fumbled a major opportunity to flex (see what I did there?) her New York City credentials.  In explaining the various actions delegated by Congress to the President under the IEEPA, she noted there are "9 verbs listed in IEEPA's delegation provision" and "[t]hose verbs are followed by 11 objects, each describing a distinct sort of transaction involving foreign property."  She then did some fancy math and concluded "Combine the verbs and objects in all possible ways, and the statute authorizes 99 actions a President can take to address a foreign threat.  And exactly none of the other 98 involves raising revenues."  This passage clearly screams for the conclusion "If you rely on IEEPA I feel bad for you son, it provides 99 delegations but tariffs ain't one."  

Justice Jackson took to the mic to spit eight bars (just four full pages) saying that all this sniping is unnecessary because Congress's intent is clear from the legislative record.  Conservatives refuse to look at the legislative record when interpreting statutes, instead favoring dictionaries and other historical references.  That's how we wind up with "history and tradition" tests like this bunkum.  I would've said something like "Our forefathers wrote IEEPA for foreign property, the Prez can take it in wartime but not impose duties. Come here, young blood, and take a look.  Acknowledge your legislative history!"

When SCOTUS finally invites me to one of their cyphers I'll get them straightened out. 

The Wisdom of Barbers Redux: Fox is Toast

I've written about the wisdom of barbers before when, after getting a haircut in August 2020, I opined that covid-19 "will soon run its course, turning into nothing more than a relatively routine but life-threatening infection like measles.  I predict this will happen around mid-October."  I was maybe a year too early with that prediction but that's where I think we are.

I got a haircut on Friday at that same barbershop and when I walked in the older guy, Johnny Cap, was vigorously holding forth about the Fox News defamation suit.  He read the texts and emails and was (and still is) livid that Fox reporters knowingly lied about election fraud.  He was all-in on Trump until January 6, now he's all-out.  After completing several tours of duty in the Middle East as a Marine mortarman, his son is now a National Guardsman and was deployed to the Capitol for something like two months after the riot.  Suffice it to say that blood is thicker than spray-tan, and he's pissed that Trump and his supporters ginned up a bunch of nonsense that put his son in harm's way.  Sort of like W and his supporters did--I sense a pattern here but that's something for a different post.

John is now of the view that you can't trust the news because it's all entertainment.  He parenthetically carved out the local news from that conclusion, "but that's all car accidents and murders."

This is a long-winded way of saying that we've reached a tipping point.  If Johnny Cap turned against Fox then a lot of other people have too.  Fox is toast.

For the sake of completeness, you can review the Delaware (that's where Dominion sued Fox) civil pattern jury instructions here.  I already did this so you don't have to.  Here's what the jury will be told about defamation:

Defamation is a communication that tends to injure a person's "reputation" in the ordinary sense of that word; that is, some statement or action that diminishes the esteem, respect, goodwill, or confidence in which the person is held and tends to cause bad feelings or opinions about the person.  Defamation necessarily involves the idea of disgrace.  In this sense, a communication is defamatory if it tends to lower the person in the estimation of the community or if it deters third parties from associating or dealing with the person defamed.

But defamation occurs only when the defamatory information is communicated to someone other than the person to whom it refers.  In the law, this is known as "publication."

Del. P.J.I. Civ. § 11.1.  Dominion's reputation absolutely suffered based on Fox's coverage.  I'm also willing to wager that a lot of municipalities don't want to do business with Dominion because (1) they believe that Dominion machines are rigged, or (2) they don't want to deal with constituents who believe that Dominion machines are rigged.  Looks like defamation to me.

Here's how the jury will be instructed about "the truth" as a defense to defamation:

It is an absolute defense to a claim of defamation that the alleged defamatory statements were substantially true at the time the statements were made.  Thus, even if you find that [defendant's name] made defamatory statements about [plaintiff's name] that proximately caused [him/her/it] injury, you cannot award damages if you find that the statements were substantially true.

The alleged defamatory statements don't have to be absolutely true for [defendant's name] to successfully assert this defense.  Substantially true statements are not defamatory.  To determine if a statement is substantially true, you must determine if the alleged defamation was no more damaging to [plaintiff's name]'s reputation than an absolutely true statement would have been.  In other words, if the "gist" or "sting" of the allegedly defamatory statement produces the same effect in the mind of the recipient as the precise truth would have produced, then the statement is "substantially true" and you cannot award damages to [plaintiff's name] for the statement.

To prevail on this defense, [defendant's name] bears the burden of proving by a preponderance of the evidence that the alleged defamatory statements were true or substantially true.

Del. P.J.I. Civ. § 11.12.  I think it's pretty clear that Dominion's voting machines did not flip votes to Biden; Hugo Chavez wasn't involved either.  Chris Krebs told us that.

via GIPHY

So what does Dominion have to prove to beat Fox?  I think they qualify as a "public figure" so it's a relatively high bar:

[Plaintiff's name] has the burden of proving by a preponderance of the evidence facts necessary to establish each of the following elements of [his/her/its] claim:  

(1) that [defendant's name] defamed [him/her/it]; 

(2) that [defendant's name] published the defamatory matter; 

(3) that [defendant's name] intentionally or recklessly failed to determine the truth of the defamatory matter; and 

(4) that the publication of the defamatory matter caused injury to [plaintiff's name].

Del. P.J.I. Civ. § 11.7.  We established a defamatory statement above, that's element 1.  And we have publication--Fox news said it over and over on TV, that's element 2.  

For element 3, Fox knew these statements were untrue.  For example, Sean Hannity said "that whole narrative that Sidney [Powell] was pushing.  I did not believe it for one second."  Dana Perino said this story was "total bs," "insane," and "nonsense;" much like most people, she also pondered "Where the hell did they even get this Venezuela tie to dominion? I mean wtf?"  Even Rupert Murdock said "It’s been suggested our prime time three should independently or together say something like ‘the election is over and Joe Biden won,’” and that such a statement “would go a long way to stop the Trump myth that the election [was] stolen.”

via GIPHY

As to injury, the fourth element, Dominion notes that "Where a defendant's statements are per se defamatory, the plaintiff need not prove damages to establish liability Instead, in per se defamation cases, 'injury is assumed.'" Celle v. Filipino Rep. Enterprises Inc., 209 F.3d 163, 179 (2d Cir. 2000).  A statement is per se defamatory "if it (1) charges the plaintiff with a serious crime; [or] (2) tends to injure the plaintiff in her or his trade, business or profession." Kasavana v. Vela, 172 AD3d 1042, 1044 (2d Dept. 2019).  I suspect Dominion can show that they lost contracts which would establish prong 2 (and damages).  Election fraud is, of course, a serious crime.  So we can check off element 4 as well.

Whether you go with a seat-of-the-pants/man-on-the-street hot take or a reasoned review of the legal standards, Fox is screwed.  Fake news indeed.

via GIPHY

Corona Files: Unintended Consequences

State and local governments face massive budget shortfalls related to the multi-varied impacts of the shutdown of economies across the country. California has estimated a $54b hole in its budget related to COVID-19. Maryland says it'll be down $2.8b. In all Financial Times estimates that states may see as much as a $500b shortfall.

This will have massive consequences for the places we live, from reductions in services to increased taxes, to larger class sizes. There are, however, at least two silver linings, if you're a certain kind of degenerate.

States that need money can't tax their way out of the hole, at least not entirely. My friends, I have two words to share with you this fine day: Legalize It.

States were already moving to make sports betting and other forms of gambling more legal in the wake of the Supreme Court's 2018 backing of New Jersey's position in Murphy v. National Collegiate Athletic Association, which effectively struck down the 1992 Professional and Amateur Sports Protection Act and allowed states to choose to legalize gambling on sports. Eighteen states have already legalized sports gambling, and every state other than Wisconsin and Idaho has advanced legislation.

At the same time, 11 states and the District of Columbia have fully legalized marijuana.

We'll keep our analysis short and sweet, because we're a little bit tipsy. Legally. The economic impacts of the coronavirus pandemic will erode political resistance to legalized gambling and weed, slowly, then all at once. States won't have a choice.

I look forward to toking with y'all while we place bets at OBFT XVIII. Whole. New. Ballgame.

Because Laughter Is the Best Medicine

Good people, the time is now. America and the world are changing the way we have traditionally thought about mind-altering substances and their value to society. It's time to stop arresting and prosecuting people for using simple, homegrown stuff to ease their pain and add some joy. Enough already. Legalize it.

Oh, and the health effects?  More and more, science shows us that what has ailed human for decades or centuries can be in some ways alleviated by using these currently "controlled substances." Come on.  Let's get into the modern age and make it legal!

Wait, did you think I meant weed?  Oh, no, no no.  Not marijuana.

Mushrooms!

Oh, yes.  According to the Psilocybin Service Initiative of Oregon and their PSI 2020 campaign,

there's a movement afoot that says that the use of recreational mushrooms -- with safety assistance, of course -- has inherently beneficial elements that can and will improve our mental health.  Seriously. It's worth a glimpse, no?

PSI 2020 is a "ballot initiative campaign aiming to legalize access to psilocybin assisted therapy, is now gathering petition signatures for the 2020 ballot."

According to PSI Chief Petitioners Tomand Sheri Eckert:

A growing body of evidence demonstrates that psilocybin assisted therapy is safe and uniquely effective. We think that this novel approach could help alleviate the mental health crisis here in Oregon by addressing costly epidemics like suicide, treatment-resistant depression and anxiety, PTSD, and addiction to drugs, alcohol, and nicotine. Additionally, the measure would open doors for new research, create access to services for those interested in personal development, and reduce penalties for common possession of psilocybin.

I know what caught your eye -- doing mushrooms can help with your addiction to drugs! The anti-gateway drug!

As someone who witnessed something called SpringFest in 1992, I can tell you that the effect definitely helped some people relax on an otherwise stressful spring day in Williamsburg, VA. Right up until some maniac tried to "smash himself" in the moving bookshelves in the library.

And as someone who knows someone who knew someone who's asking for a friend and once met someone who was related to a guy and you cannot pin this back on me/them but he read on the internet about a guy who once knew a guy and they created mushrooms out of perlite, vermiculite, rice, bell jars, terraria, and oh yeah syringes full of spores from Ecuador and Cambodia... let's not forget, Dude, that keeping wildlife, um... fungal spores, for... um, ya know domestic... within the city... that ain't legal, either.  YET.

This is all vastly intriguing to me.  And the way I came upon it is that a girl I knew from high school was touting this measure in earnest on Facebook this week. She's an awesome person and, when she references the highlighted quote above's laundry list of afflictions the psilocybin help, she says "every one of which I suffer or have suffered." She's collecting signatures. Just trying to make her world and others' better.

And trippier. Like way weirder.  I love it.



Popcorn for everyone!

Sream and Roor Will Smoke You

Martin Birzle (as in, fo' shirzle my Birzle) is an award-winning designer and manufacturer of smokers' products. Mr. Birzle owns Roor International BV, which is headquartered in Germany, and he sells his high-quality borosilicate hand-blown jointed-glass water pipes under the Roor trademark.

The Roor mark is the subject of three registrations with the US Patent and Trademark Office. To put it more plainly, Birzle sells fancy glass bongs--so fancy that they have trademarks associated with them. Don't laugh! Roor bongs start at $300 each. Roor sales in the United states alone have been in excess of $5,000,000 for the last three years. That's a lot of green.

I know all of this because Roor and its licensed US distributor, Sream, Inc., sued Arzumanara Corporation in the US District Court for the Southern District of Florida for trademark infringement, asserting that Arzumanara sells knock-off Roor bongs. Fugazis if you will.

It turns out that Arzumanara does business as "Food Zone 619" which, according to Yelp, appears to be a bodega in Homestead, FL (about 15-20 miles outside of Miami). Remarkably, this isn't the first time Sream and Roor took legal action to enforce the Roor marks. It appears that Sream filed 313 complaints (313!?!) in the past two to three years, mostly against what appear to be mom-and-pop food stores or gas stations that sell cheap glass bongs under the counter.

Their complaints are filed almost exclusively in C.D. Cal. (which covers LA), S.D. Fla. (Miami), S.D.N.Y. (Manhattan), E.D.N.Y. (Brooklyn Queens Staten and LI), and E.D. La. (New Orleans). They seem to focus on places where pot is plentiful.

None of this makes a ton of sense to me. How do you walk into federal court and assert trademark protection over a product used to commit a federal crime?

via GIPHY

Apparently they don't walk into court too often, instead they settle. And that's likely a great way to make money. Even if they only get $10,000 per settlement, that's over $3 million for 313 cases. Once their attorney takes his contingent fee cut they're left with at least $2 million.

So if you're selling bootleg Roor bongs in the back of your bodega, stop now! Or else Birzle will put a hurtin' on you! I'm looking at you Mark.

Weed Week - Politics You Can Use

We didn't plan it this way*, but sometimes things just come together and feel right.

(*As you know, we don't plan anything, any way.)

There's a ton of political momentum surrounding the legalization of marijuana, so - just as the Waldos would wish it - here's a brief roundup.

In the New York gubernatorial election, political neophyte (and former Sex in the City co-star) Cynthia Nixon seems to have rattled incumbent Andrew Cuomo's comfortable cage, hitting him hard from the left. While Cuomo still enjoys sizable working margins in the polls, he's already responded to pressure from Nixon by enfranchising New Yorkers with felony convictions who've completed the terms of their sentences.

Nixon's been outspoken on the topic of legal marijuana, as well. This week, she spoke the truth as most of us know it, saying, "There are a lot of good reasons for legalizing marijuana, but for me, it comes down to this: We have to stop putting people of color in jail for something that white people do with impunity."

She continued with this, "The simple truth is, for white people, the use of marijuana has effectively been legal for a long time. Isn’t it time we legalize it for everybody else?"

The logic here is hard to assail. 80% of New Yorkers arrested for marijuana-related crimes are black or Latino. Those minority groups are 4.5 times more likely to get arrested for weed than whites, though most studies agree that they use marijuana at the same rates. Drug enforcement is one in a long litany of insidious little ways the purported equality of our society is eroded.

Another way relates to how the rich keep getting richer. And we've got a weed story in that category, too, one that doubles as a lesson in hypocrisy.

I see you, Congressman

Former Speaker of the House of Representatives John Boehner once said (while in office, of course) that he was "unalterably opposed" to legalizing marijuana. Words, in our current through-the-looking-glass world, have no meaning. Or, perhaps, we shouldn't value anything said by an active politician any more than the carbon dioxide expressed by the breath it takes to say it.

Last week, Boehner announced that he'd joined the board of directors of Acreage Holdings, one of the nation's largest cannabis companies. Directly from the company's website, we learned that Acreage is building vertically integrated cannabis operations (cultivating, processing, and dispensing) to serve the 11 states where it's legal to do so today, and capitalize on a potential $40b market. For what it's worth, I think that market sizing is probably too conservative.

Acreage's website also boasts a distinguished management team. Of nine white dudes. The entire organization, based on the same site, has a total of two people of color among the 24 employees. John Boehner's gonna cash in on a product that his fellow Republicans once used to generate revenue for the Corrections Corporation of America. And that's some fucked up shit, right there.

I really hope they're successful commercially. And I really, really, really fucking hope someone starts a competitor with a diverse team that kicks their ass down the road.

And finally, to tie a dank, green bow on this topic, the 2018 election is shaping up as a referendum on legalization. As we've seen lately, stuff that we think is impossible politically remains impossible, right up until it isn't. The legalization of same sex marriage is a great example. As recently as Barack Obama's first term, even he was lukewarm on the idea. Then, society dragged him, his party, and the Supreme Court with it.

I think that's going to happen with weed, and soon.

Corey Booker and Kristin Gillibrand, senators who both happen to have Presidential aspirations, both came out recently in support of Federal legislation to legalize recreational pot use. That's both aligned with the party (72% of Democrats support legalization) and a decent read of the political winds.

Chuck Schumer just filed a bill make legalization Federal law. It won't happen under the current Congress, but it's a marker. Democratic gubernatorial candidates in Maryland and Wisconsin are running on legalization, as is Nixon in New York. Dozens of congressional candidates are making it an issue - it kills with the 18-29 demo, and it's common sense.

Mark this, friends. I predict that I'll smoke a joint together with my now 16 year-old daughter before she turns 25. And I'll do it legally, where I live today.

In these shitty times, that's something to look forward to.