Month: July 2024

Washington DC is suddenly full of anonymous Democratic insiders who are dishing dirt on Joe Biden's parlous mental state. The New York Times rounds up a lot of them for a long story today, and if you read carefully one of the recurrent themes is that Biden's mental state has fallen off a cliff in just the last few months:

People in the room with him more recently said that the lapses seemed to be growing more frequent, more pronounced and more worrisome.... Last week’s debate prompted some around him to express concern that the decline had accelerated lately.... This person said Mr. Biden had shown a “sharp decline” since a meeting only weeks earlier.... A senior European official who was present said that there had been a noticeable decline in Mr. Biden’s physical state since the previous fall.

Politico described Biden as getting worse recently during routine briefings:

During meetings with aides who are putting together formal briefings they’ll deliver to Biden, some senior officials have at times gone to great lengths to curate the information being presented in an effort to avoid provoking a negative reaction. “It’s like, ‘You can’t include that, that will set him off,’ or ‘Put that in, he likes that,’” said one senior administration official. “It’s a Rorschach test, not a briefing. Because he is not a pleasant person to be around when he’s being briefed. It’s very difficult, and people are scared shitless of him.”

Angry outbursts are a bad sign. All of this is a bad sign. And it might explain why nobody talked about it until now: no one is going to tattle about occasional lapses, and it may be that Biden hasn't shown any serious cognitive issues until relatively recently.

In any case, if this is right it means things are going to get even worse in fairly short order. Unfortunately, Biden himself doesn't see it. When you start to lose your faculties, the first thing to go is your ability to recognize that you're losing your faculties.

When a federal agency issues a new rule, you can sue them in federal court if you think the rule was wrongly approved. For example, maybe you think the agency violated proper procedure or failed to properly account for public comments. The default statute of limitations for filing a suit is six years. But six years from what? There are two possibilities:

• Six years from when the final rule was issued.
• Six years from whenever a plaintiff first suffers some injury from the rule.

The Supreme Court took up this question and handed down its decision yesterday. It mostly comes down to the wording of the law, which states that suits “shall be barred unless the complaint is filed within six years after the right of action first accrues.”

The majority opinion says this clearly means the statute of limitations begins when an injury has been suffered:

§2401(a)’s text focuses on a specific plaintiff: “the complaint is filed within six years after the right of action first accrues.”

The dissent says this clearly means exactly the opposite:

§2401(a) does not say that the clock starts when the plaintiff’s right of action first accrues; rather, §2401(a) starts the clock when “the right of action first accrues.”

Both sides agree that "the" is the operative word in this passage. However, the majority contrasts "the" with "a" while the dissent contrasts "the" with "the plaintiff." It is of such things that Supreme Court decisions are made.

Perhaps more to the point, however, is that for 75 years courts have routinely believed the statute of limitations for agency actions begins when the rule is issued. So why the sudden change? I think Ketanji Brown Jackson gets it right in the dissent:

Any established government regulation about any issue—say, workplace safety, toxic waste, or consumer protection—can now be attacked by any new regulated entity within six years of the entity’s formation. A brand new entity could pop up and challenge a regulation that is decades old; perhaps even one that is as old as the APA itself. No matter how entrenched, heavily relied upon, or central to the functioning of our society a rule is, the majority has announced open season.

As in the case overturning Chevron deference, the conservative majority on the court is dedicated to any interpretation of the law that makes it easier to attack federal agency rules. Precedent doesn't matter; language doesn't matter; intent doesn't matter. They just want to weaken federal rulemaking and they'll do it any way they can.

Stare decisis has really taken a beating over the past few years. Here's a non-comprehensive list of longstanding precedents the Supreme Court has tossed aside recently:

• Loper Bright overturned Chevron, a 40-year-old precedent.
• Dobbs overturned Roe v. Wade, a 50-year-old precedent.
• Shelby County overturned key parts of the Civil Rights Act, a 50-year-old law.
• Students for Fair Admissions overturned affirmative action, a 60-year-old practice.
• Corner Post overturned the statute of limitations for contesting administrative rules, a 75-year-old precedent.
• Jarkesy overturned the SEC's use of internal tribunals, a 90-year-old precedent.

It's odd that a supposedly conservative court has been so eager to make so many radical changes to settled law, no?

Not everyone appreciated the green mamba snake last week, so here's a cute little wallaby chewing on a leaf. This particular brand of wallaby is a tammar wallaby, named after "thickets of the shrub locally known as tamma that sheltered it in Western Australia."

This of course just begs the question of where that got its name, but here our inquiry stops. Tamma sheoak, aka Allocasuarina corniculata, is apparently a huge pain in the ass, but Google says no more about it. In fact, most of the search results merely tell you that it's the source of the name of the tammar wallaby. Anyone feel like digging a little deeper?

I sympathize with lifelong Republicans who hate Democrats and therefore remain unsure of whether to vote for Donald Trump. After all, I've long wondered how bad a Democrat would have to be to make me vote for Republican. The problem is that I've never been able to come up with a plausible Democrat as bad as Trump.

But now we have a Democrat who isn't a horrible person but—just as bad—seems mentally unfit for the presidency. I'll still vote for him because the alternative is Trump, but what would I do if his opponent were a normie Republican like, say, Mitt Romney?

Just as I think decent Republicans should refuse to vote for Trump, I'd like to think I'd defect to Romney. But would I? I'm not quite being put to the test thanks to the unique horror of the Republican candidate, but it's getting too close for comfort.

Hiring ticked up 2.5% in May, but after two years of decline it's still well below its pre-pandemic trend:

Hiring looks to be leveling out a bit, which is sort of consistent with the soft landing hypothesis. We can hope.

Early this year the Department of Energy paused approvals of new LNG terminals. Several states sued, saying the decision was arbitrary and was costing them a lot of money.

Yesterday a Trump-appointed judge in Louisiana (of course) issued a preliminary injunction against the pause and told DOE to start issuing approvals again. It's possible that his ruling is correct. The pause was pretty obviously political in nature; it was ordered without the usual regulatory process; and it reversed a longstanding policy of approving most LNG terminals expeditiously.

Nonetheless I want to highlight a couple of passages from judge James Cain's opinion:

The Defendants’ choice to halt permits to export natural gas to foreign companies is quite complexing to this Court.... [It] is completely without reason or logic and is perhaps the epiphany of ideocracy.

What is this supposed to mean? It turns out that complexing actually is a word: It has to do with the process of binding two atoms to form a complex. However, a less-used definition is complicating. But neither makes sense. Perhaps his honor meant perplexing?

Then there's epiphany, which means a sudden inspiration or understanding. That also makes no sense. Perhaps he meant epitome?

Finally there's ideocracy. As it happens, this is actually a word too. It apparently refers to a society governed by a single overarching ideology. That seems unlikely, though. Perhaps he meant idiocracy?

Who edits these things? Anybody?

Nonresidential construction fell in May, marking the fifth straight month of losses. The post-pandemic building boom has well and truly ended.

I'm no great fan of today's Supreme Court ruling on presidential immunity, but I've seen some fairly outlandish responses about how this makes the president a king, or it allows the president to assassinate political opponents, etc. Everyone needs to cool down a bit on this.

First, it's true that this is the first time a president has been granted immunity from criminal prosecution. But that's only because it's never come up before. Most presidents except Richard Nixon haven't engaged in criminal behavior, and Nixon was pardoned before it became a live issue. Trump just happens to be first overtly lawless president.

Second, immunity for official acts isn't uncommon. In addition to the US, you'll find it in India, Italy, Japan, Mexico, Poland, the UK, Germany, and Brazil, among others. The reason is precisely the one the Supreme Court laid out: We want presidents to have a wide scope for decisive action. We don't want them hamstrung by fears that some enterprising prosecutor will someday try to toss them in jail for actions that they simply disagree with.¹

Third, the Court's decision doesn't mean that presidents can willy nilly decide to assassinate someone they don't like. Immunity applies only to official actions, and while that's a broad scope it's not infinite. Bribery is still illegal, even if you're president, and so is murder.

On that score, though, I'm baffled by the Court's opinion that the president's motivations don't matter. It's hard to see how this can stand. If, for example, the president authorizes a military strike that kills a US citizen, it certainly does matter what his motivation was. If it's because the citizen was hanging out with a gang of terrorists, the president would certainly be immune from later prosecution. But if you could provide evidence that the president actually wanted the person killed because he'd had an affair with his wife, that would surely be prosecutable.

Bottom line: it was a very broad decision. However, it doesn't literally make the president above the law, least of all Trump. In fact, it most likely leaves one of the charges against him still standing—though we won't know for sure until the case makes its way back to the Supreme Court for a definitive ruling. In the meantime, don't go to pieces over this.

¹It's an article of faith among conservatives, for example, that Joe Biden's suspension of student debt was the worst kind of plainly lawless behavior. Do we even want to take a chance that someday a few wingnuts will convince a state prosecutor to put this case in front of a friendly judge? Of course not. It's a political act obviously within the president's official duties, and that should be that.

Today brings weird news. It's bad news, but peculiar bad news.

As you'll recall, the main marker of multiple myeloma is M-protein. The lower the better, and late last year it dipped below detectable levels. A second test, serum immunofixation, went from detecting cancer to maybe detecting something to flatly reporting no hint of cancer. That was in April. In May it returned to maybe.

Today, I got back the test results from a week ago. For the first time in six months the immunofixation test reported definite cancer and my M-protein level spiked to 0.31.

I am, as usual, unable to get a straight answer about just how unusual this is. But obviously it's not common. The immunofixation result has gone from zero to definite cancer in eight weeks and the M-protein test has gone from zero all the way up to 0.31 in four weeks with nothing in between. That makes no sense, especially since my multiple myeloma has always been fairly well behaved.

But it is what it is. My CAR-T doctor called me today with the news and asked if I was willing to be part of a clinical trial. There aren't a lot of other options left. So sometime soon I'll probably be back at City of Hope to hear about what's available. We'll just have to figure out how to squeeze this into the schedule for my other cancer.