ANOTHER NCLA VICTORY: In NCLA Victory, Dep’t of Transportation Scraps Illegitimate Administrative Proceeding vs. gh Package.

Today, the New Civil Liberties Alliance agreed to a stipulated dismissal of its gh Package v. Buttigieg lawsuit challenging the Department of Transportation’s unconstitutional and abusive administrative enforcement regime. NCLA’s federal-court lawsuit successfully pressured DOT to dismiss with prejudice its case against a family-run company, gh Package Product Testing and Consulting, Inc., which tests packages used to transport hazardous chemicals safely. The stipulated dismissal follows DOT’s dismissal of its administrative proceeding against gh Package with prejudice. NCLA celebrates this great victory for its client.

DOT’s Pipeline and Hazardous Materials Safety Administration (PHMSA) launched the enforcement proceeding against gh last year, claiming the company submitted test reports with minor inaccuracies that violated DOT regulations. DOT hauled gh into its in-house tribunal, where agency officials violate the due process of law by acting as both prosecutor and adjudicator and by depriving defendants of jury trials. DOT’s in-house adjudicators are illegitimate under Article II of the Constitution because neither the President nor the Secretary of Transportation appoints them and they enjoy improper protection from presidential removal. Rather than defend against these constitutional defects on the merits in a real federal court, DOT decided to dismiss its enforcement proceeding.

As a result of NCLA’s recent Supreme Court victory in Michelle Cochran’s fight against the Securities and Exchange Commission, gh was able to challenge DOT’s unlawful tribunal directly in district court before having to endure the entire administrative proceeding. NCLA requested a preliminary injunction in August to stop the unconstitutional proceeding against gh. Just days before PHMSA was to file its final brief opposing that injunction, it withdrew its notice accusing gh of probable wrongdoing, thus ending the unlawful proceeding as NCLA requested. The Administrative Law Judge who oversaw the enforcement proceeding ultimately dismissed it, declaring that “[b]y its decision to take no further action on the allegations,” PHMSA had “in effect failed to meet its burden” to prove its accusations. NCLA is pleased to have vindicated its client in this successful case against DOT’s unlawful enforcement regime, and we hope that defendants in similar proceedings will take note.

I expect that they will. And the viability of proceedings before Administrative Law Judges is growing steadily more dubious.

THE MASK COMES OFF: Determined to defend face coverings, a Scientific American article dismisses scientific “rigor.”

In response, [Naomi Oreskes, a Harvard professor of the history of science] claimed that “[t]he Cochrane finding was not that masking didn’t work but that scientists lacked sufficient evidence of sufficient quality to conclude that they worked.” She continues, “Jefferson erased that distinction, in effect arguing that because the authors couldn’t prove that masks did work, one could say that they didn’t work. That’s just wrong.” But Jefferson didn’t simply say that masks don’t work; he said there’s “no evidence” they work. The burden of proof should be on the side of those advocating a medical intervention. Without remotely having met that burden, Oreskes asserts that masks do work. Cochrane, she writes, “gave the false impression that masking didn’t help.”

In fact, 16 RCTs have tested whether masks effectively reduce the spread of viruses. Not onehas found compelling evidence that they do. Two have found statistically significant evidence that masks are counterproductive—that they increase the spread of viruses—probably because masks are frequently moist or dirty, and people often touch them. As for non-RCT evidence, check out this chart by Ian Miller, which shows that mask-mandate and mask-free states registered almost identical Covid-19 case rates.

Surgical masks were designed to protect patients from having open wounds infected by medical personnel, not to prevent the spread of viruses. N95 masks were designed to protect workers from breathing in fumes, smoke, or dust. When N95s were worn in hospitals pre-Covid, it was usually to protect against the spread of tuberculosis bacteria, not to stop the spread of viruses. As an article on the National Institutes of Health website puts it, “Viruses are tiny. . . . Billions can fit on the head of a pin.” Bacteria are huge by comparison: “Bacteria are 10 to 100 times larger than viruses.” Trying to block a virus with a mask is like trying to keep mosquitos out of your yard with a chain-link fence.

Read the whole thing.

GOOD: A few schools mandated masks. Conservatives hit back hard.

Note the article’s claim that “Mask mandates were instrumental in controlling the spread of the coronavirus during the peak of the pandemic.” Uh, no. The science says that mask mandates don’t work.

Even Fauci has backed down: “Recently, Cochrane validated this, and found no evidence to support masking adults. Yet, all these years, Anthony Fauci repeatedly went on TV, and falsely claimed masking works, including cloth masks—which demonstrably don’t work, contradicted by multiple randomized trials. Now, on CNN, Fauci is challenged. Please watch this amazing 1 minute video, link below. Fauci is directly confronted with the recent Cochrane review. Then consider his answer. . . . Fauci’s answer is that masks work for individuals, but not at the population level. But this is bizarre. He advocated for mask mandates at the population level. If he knew they did not work, why did he encourage them for populations? Moreover, even this week, he continues to advocate for them— at a population level.”

Follow the science, indeed.

BEN DOMENECH: McConnell can resign without leaving the Senate.

Many Republicans point out that McConnell needs to stay in his seat to prevent Kentucky’s Democratic governor Andy Beshear, currently being challenged by McConnell ally Daniel Cameron, from naming a replacement. But that is a reason for McConnell to stay in the Senate, not one that requires him to stay on as its minority leader.

The truth is that McConnell is not so dramatically reduced in his capacity that he needs to step down as a senator. He shows far greater capacity than current Senate Democrats Dianne Feinstein or John Fetterman, nor does he have the health struggles of the likes of Thad Cochran or Johnny Isakson in their final years. But continuing on as minority leader headed into a critical election year is a different question entirely.

Yes.

KAROL MARKOWICZ: Impeach Becerra for saying masking 2-year-olds was fine.

In fact, while masking children was particularly egregious, there’s no evidence that having anyone mask, at any time, saved any lives.

A scientific review published in February by the respected Cochrane Library, “the leading database for systematic reviews in health care,” compared a variety of studies on masking to fight not only COVID-19 but a range of flu-like and respiratory illnesses.

The conclusion: Masks — yes, even N95s — provided “little to no difference” in contracting these viruses.

There are people still walking around masked and, worse, masking their children, who simply don’t know they were led to believe a lie.

To watch the HHS secretary and a far-left congressman continue to push a damaging health policy we all know didn’t work, even today, should be a wake-up call to everyone.

It’s the middle of 2023. The pandemic is in the rearview.

You don’t want to be reading about COVID. I don’t want to be writing about COVID.

But there’s no other way to interpret these comments than that those in power have not learned any lessons.

And they haven’t: For Biden White House, COVID, Masks Will Never Go Away.

GOVERNMENT: Hopelessly Compromised SEC Dismisses Dozens of Cases Due to Widespread Agency Misconduct.

The U.S. Securities and Exchange Commission (SEC) dismissed dozens of enforcement cases Friday, including two involving current NCLA clients (Michelle Cochran, Marian Young) and one of a former client (Christopher Gibson). The agency revealed on June 2, 2023, that members of its enforcement staff had gained illicit access to confidential adjudicative documents and downloaded them in far more cases than originally reported, exposing rot in a hopelessly compromised in-house adjudication regime.

SEC publicly admitted in April 2022 to the existence of a so-called control deficiency within its administrative adjudication system. It said the agency’s Chair had launched an internal review of the issue (using a contractor dependent on staying in SEC’s good graces for its other agency business). At that time, the agency specifically divulged that SEC Division of Enforcement personnel had accessed adjudication material in the SEC v. Cochran case, temporarily making the material available to everyone in the Division, including attorneys who prosecuted Ms. Cochran on SEC’s behalf. Now it turns out agency personnel had done the same thing in dozens more cases.

Abuse of power has become the norm in our government institutions, along with impunity.

PAULA BOLYARD: The Danger to Canada (and How It Differs from the Danger to the U.S.).

The danger to Canada, writes industrial technologist and army veteran Tex Leugner in The Cochrane Eagle, transcends the state-and-media entente that works to prepare the public for the assumption of elite authority predicated on an ideological agenda. The danger, rather, is delved in the almost insuperable task of “restor[ing] the necessary common sense and good judgment to a lazy, unthinking electorate” prone to electing corrupt, unpatriotic leaders, “a citizenry capable of entrusting an incompetent man with the job of Prime Minister” and refusing to rectify or even acknowledge the blunder: “The danger to Canada is the people in it.”

Election results confirm, Leugner continues, “that more and more Canadians are moving in the direction of socialism with every generation, most of whom no longer have any morality, sense of self reliance, personal responsibility, independent thinking and a willingness to continue the culture of hard-working self-respect that built this magnificent country in the first place.” His conclusion hits hard. “Canada is no longer the country I was once so proud to serve as a soldier. In fact, it is no longer my country.” Many former servicemen, some of whom have become personal friends, agree wholeheartedly. They regret their service, risking life and limb for a country that has neither use nor respect for them, particularly under a Liberal administration.

Read the whole thing.

THE CURRENT STATE OF LIABILITY FOR “CAUSAL” SPEECH: As a committed civil libertarian and experienced advocate of First Amendment freedoms in all its forms, I — like most Instapundit readers — reject the notion that someone’s “feels” were damaged by something they read, watched or heard and subsequently they deserve financial compensation in law.

Blaming speech for things other people do (in violation of alleged cultural norms) is equally repugnant. It strips the moral agency from the reader and viewer, and is paternalism in its most abhorrent form. We’ve seen it a million times. I was in a newsroom when Rep. Giffords was shot, and heard editors immediately yelling at reporters to start looking for “right-wing” media that Jared Loughner may have been “inspired” by. Massive fail. I mean, just look at the guy.

When liberal fascists strip away peoples’ moral agency (and thus, the notion of individual responsibility) they then believe they have license to regulate speech on an imaginary causal link to violent acts. Fortunately, the law rejects this for the most part.

Short of lawsuits, of course, if your club hates a particular person, they can virtue signal their “honorable” intentions by targeting others and sweeping them into a “basket of deplorables.”  (As an aside, Hillary Clinton will never know how much damage she did to the body politic with that craven polarization).  Media and public figures with a conservative leaning readership or following are consistently smeared as “right-wing.” This agreed-upon narrative is underwritten by a well funded campaign to ruin their reputations and bring them down by pressuring advertisers, or just plain hysterical cybermob “deplatforming.”

The motive reasoning varies, but it is usually justified as targeting “disinformation” that “destroys democracy.” A laughable and overbroad notion, but there’s gold in them there hills: Some hucksters have ginned up a for-profit business model called “NewsGuard” that deems itself the moral authority on who is and isn’t producing “disinformation.” The curious part is that this company is advised by (Ret.) General Michael Hayden. He’s one of the 51 signatories to the infamous and now thoroughly discredited “Russian disinformation” letter that was used to silence reporting about Hunter Biden’s laptop. How these guys can claim the high moral ground is beyond me.

So which exceptions allowing speech restriction are philosophically acceptable and pass constitutional muster? Obviously, speech that knowingly provides a direct opportunity to engage in sex trafficking, murder, and the like. But burning the American flag is protected speech (although I can think of several friends who would be motivated to punch the arsonist’s lights out). Even generalized death threats against the President of the United States, without more, have been protected as “hyperbolic” and “expressive” speech. Remember this little gem that was passed around by Occupy Democrats and the Koz Kids? Oh what fun we had. Good times, good times.

But claims of emotional distress caused by watching something have always failed. Yet an interesting case is developing in California. For quite some time, the nanny state has been demanding more and more supervision of speech by BigTech social media companies who claim to be mere conduits. They want it both ways, exerting influence over social media and denying responsibility at the same time. Yielding to public and political pressure, they have hired teams of moderators (usually with a far-left bent) to scour the platform and remove offensive postings.

Can you imagine sitting in front a screen all day having to sift through Anti-Semitism, ethnic slurs, gruesome videos and obscene photographs? Moderators at Tik-Tok have filed a suit against their employer’s parent company, claiming that “the company did not adopt reasonable measures to mitigate harm from having to watch disturbing content.” Courthouse News reports that:

“As part of their jobs, Reece Young and Ashley Velez say they watched hours of disturbing videos showing necrophilia, bestiality and violence against children, while working for independent “content moderation” firms ByteDance hired. The plaintiffs claim that as a result, they were unable to take breaks from graphic videos because queues of videos which were not supposed to contain graphic content often did, and the resulting harms were exacerbated by ByteDance’s strict productivity standards.”

The judge in the TikTok case has denied the company’s Motion to Dismiss, and it may very well proceed to trial. On one hand, this is one of those “why can’t they both lose?” moments. The usual — and winning — argument against would-be censorship is simply replying that “if you don’t like what you see, change the channel.” But to be fair, these people can’t change the channel.

So the irony abounds here: “We know better than you, so shut up and listen only to state-approved media.” Then, when part of that approval process requires people to be exposed to arguably offensive material, the nanny state has backed itself into a corner. They can’t claim speech “causes” harm except in instances where they are trying to determine if that same speech is capable of causing harm.

Pretzel logic, indeed. This is going to be fun. I’ll go make popcorn.

UNEXPECTEDLY: The Harm Caused by Masks.

Evidence continues to mount that mask mandates were perhaps the worst public-health intervention in modern American history. While concluding that wearing masks “probably makes little or no difference” in preventing the spread of viruses, a recent Cochrane review also emphasized that “more attention should be paid to describing and quantifying the harms” that may come from wearing masks. A new study from Germany does just that, and it suggests that the excess carbon dioxide breathed in by mask-wearers may have substantial ill-effects on their health—and, in the case of pregnant women, their unborn children’s.

Mask-wearers breathe in greater amounts of air that should have been expelled from their bodies and released out into the open. “[A] significant rise in carbon dioxide occurring while wearing a mask is scientifically proven in many studies,” write the German authors. “Fresh air has around 0.04% CO2,” they observe, while chronic exposure at CO2 levels of 0.3 percent is “toxic.” How much CO2 do mask-wearers breathe in? The authors write that “masks bear a possible chronic exposure to low level carbon dioxide of 1.41–3.2% CO2 of the inhaled air in reliable human experiments.”

In other words, while eight times the normal level of carbon dioxide is toxic, research suggests that mask-wearers (specifically those who wear masks for more than 5 minutes at a time) are breathing in 35 to 80 times normal levels.

THE SEC HAS BEEN RELENTLESS, BUT THE NCLA IS NOW RETURNING THE FAVOR: NCLA Challenges SEC’s ‘Hotel California’ Administrative Adjudication Regime.

Since 2014, the U.S. Securities and Exchange Commission (SEC) has been inspecting, investigating, and prosecuting Marian Young and her former investment business Saving2Retire, LLC, with no end in sight. SEC’s adjudication regime has deprived them of a jury trial and the Commission itself is now willfully refusing to decide their appeal from an administrative law judge’s (ALJ) initial decision issued back in August 2019, effectively blocking them from access to federal court review for nearly four years.

The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, filed a petition today on behalf of Ms. Young and her company, asking the U.S. Court of Appeals for the Fifth Circuit to issue a writ of mandamus against the SEC Commissioners in In re Marian P. Young and Saving2Retire, LLC that would compel them to either dismiss the case or else promptly decide the appeal in the agency’s eight-year-old administrative matter.

Under SEC’s own rules, agency commissioners had to decide our clients’ appeal no later than October 2020. But instead of deciding the case and allowing our clients to seek judicial review promptly in a federal court, SEC has summarily granted itself eleven successive 90-day extensions of time to issue its final decision—collectively delaying the deadline set by its own rules by 990 days thus far (and counting). SEC’s prolonged and willful refusal to decide our clients’ case is depriving them of their right to a fair and timely adjudication under the Due Process Clause of the Fifth Amendment and under the Administrative Procedure Act.

SEC has lost five of its last six cases at the U.S. Supreme Court and is still reeling from NCLA’s unanimous victory in SEC v. Michelle Cochran. SEC has especially good reason to dread judicial scrutiny in Ms. Young’s case. As a Texas resident, Ms. Young and her company would benefit from the Fifth Circuit’s decision in Jarkesy v. SEC. That case held that SEC administrative enforcement proceedings deprive respondents like Ms. Young of their Seventh Amendment jury trial rights, that ALJs enjoy an unconstitutional degree of multi-layered protection from presidential removal, and that Congress violated the nondelegation doctrine by giving SEC unfettered discretion to choose whether to prosecute alleged wrongdoers administratively or in federal courts.

The most appropriate remedy for SEC’s inexcusable dereliction of duty would be a writ of mandamus compelling SEC to dismiss its administrative enforcement proceeding against Ms. Young and her LLC. At a minimum, the Fifth Circuit should compel SEC to issue a prompt final decision enabling the case to progress to federal court.

Reminder/disclosure: I am on the NCLA’s advisory board.

FOR THE NCLA, A WIN OVER THE ADMINISTRATIVE STATE: Victory! U.S. Supreme Court Holds that Federal District Courts Have Jurisdiction to Hear Challenges to Unconstitutional Aspects of Federal Agencies’ Administrative Proceedings.

In an historic ruling, the U.S. Supreme Court this morning held that Texas Accountant Michelle Cochran has the right to challenge the constitutionality of her Administrative Law Judge’s (ALJ) removal protections in federal court before undergoing an administrative adjudication. Writing unanimously for the Court, Justice Kagan’s opinion stated, “The statutory review schemes set out in the Securities Exchange Act and Federal Trade Commission Act do not displace a district court’s federal-question jurisdiction over claims challenging as uncon­stitutional the structure or existence of the SEC or FTC.” “The ordinary statutory review scheme,” she wrote, “does not preclude a district court from entertaining these extraordinary claims.”

The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, which represents Ms. Cochran in Securities and Exchange Commission, et al. v. Michelle Cochran, commends the court for a decision that will allow our client to plead her case before a real Article III federal court rather than be subjected to an endless series of unlawful agency hearings. Michelle Cochran’s path to the U.S. Supreme Court began when she filed suit in federal district court to enjoin the SEC’s second round of administrative enforcement proceedings against her. Though SEC fixed the appointment problem Lucia v. SEC addressed, Ms. Cochran’s ALJ remained unconstitutional because SEC ALJs still enjoy multiple layers of “for cause” removal protection, a problem Lucia declined to reach and that SEC could not fix on its own—because the insulations from removal are statutory. NCLA also asserted that SEC violated Ms. Cochran’s due process rights by failing to adhere to its own rules and procedures.

The Supreme Court held that Ms. Cochran’s removal power claim, wholly collateral to the Exchange Act’s statutory-review scheme, is outside the SEC’s “sphere of expertise.” Justice Kagan emphasized this point, highlighting that Ms. Cochran’s claims “cannot receive meaningful judi­cial review through the … Exchange Act.” Relying on the Supreme Court’s Thunder Basin Coal Co. v. Reich precedent, the Court held, “All three Thunder Basin factors thus point in the same direction—toward allowing district court review of Axon’s and Cochran’s claims that the structure, or even existence, of an agency violates the Constitution.”

In a strong concurring opinion, Justice Thomas wrote separately to express his “grave doubts about the constitutional propriety of Congress vesting administrative agencies with primary authority to adjudicate core private rights with only deferential judicial review on the back end.” Justice Thomas stated that if private rights are at stake—as they are in Ms. Cochran’s case—“the Con­stitution likely requires plenary Article III adjudication.” Justice Gorsuch wrote separately to say this case should have been decided solely on statutory grounds. He criticized the Court’s superimposing of a judicially created and hard to administer Thunder Basin balancing test on top of Congress’s text, and he pointed out how such a test had caused Ms. Cochran to suffer. Nonetheless, NCLA believes today’s unanimous ruling, strong concurrence from Justice Thomas and strong concurrence in the judgment from Justice Gorsuch, will protect the civil liberty of citizens, like Ms. Cochran, to access federal courts when federal administrative agencies violate constitutional constraints on their power.

Reminder/disclosure: I’m on the NCLA’s advisory board.

FASTER, PLEASE: Collapse of the COVID Truth Regime.

YouTube, for instance, suspended users for statements that disputed the efficacy of face masks; these statements have now been vindicated by a landmark Cochrane review of 78 randomized controlled trials, which found that masks made “little or no difference” in preventing the transmission of COVID-19. Resulting mandates negatively impacted deaf and hard-of-hearing people, affected the learning and development of young children, and impaired the social cognition of elderly dementia patients. Because they disallowed open public discussion of their favored policies, social media companies should be considered partially responsible for the collateral damage that ensued.

During school closures in 2020, for example, fatal teen drug overdoses doubled, the child homicide rated increased by 28%, confirmed evidence of child abuse rose by 30%, and there was a 31% increase in the number of child sexual images online. Clearly a critical assessment of the COVID restrictions placed on children was morally imperative, yet Twitter blacklisted a prominent advocate for school reopening, Stanford’s Dr. Jay Bhattacharya, as soon as he opened his account. As Dr. Bhattacharya recently argued in Tablet, this move and similar actions hampered the conversation around ongoing masking, testing, and quarantining protocols in schools, and these protocols continued in many states without evidence-based deliberation.

NO. NEXT QUESTION? The Mask Mandates Did Nothing. Will Any Lessons Be Learned?

BUT THE CDC WANTS TO MASK TODDLERS ANYWAY: The Strongest Evidence Yet That Covid Masks Are Worthless. The gold standard in medical research, the Cochrane review of clinic trials, finds no evidence that surgical or even N95 masks made any difference in stopping the spread of Covid. Naturally, the CDC’s director vows to ignore the world’s most respected authority on health interventions. The CDC, the only national health agency to recommend masking two-year-olds, peddled junk science throughout the pandemic to justify its cruel policies, so why stop now? When you follow “the science,” who needs real science?

FOLLOW THE SCIENCE, NOT “THE SCIENCE:” I’m pro-science. That’s why I’m anti-mask: The landmark Cochrane study shows that the mask skeptics were right.

THIS STUDY COULD BE ‘SCIENTIFIC NAIL IN THE COFFIN’ FOR MASKS:

One of the largest and most comprehensive studies on the effectiveness of masks found they do almost nothing to reduce the spread of respiratory viruses.

The study reviewed 78 randomized control trials—experiments that have long been considered “the gold standard” for medicine—which assessed the effectiveness of face masks against flu, COVID-19, and similar illnesses. It found that wearing masks “probably makes little or no difference” for the general public, no matter what kind of mask is used. Even N95 masks, considered the most effective at filtering airborne particles, showed no clear benefit for health care workers.

The study was published on January 30 by the Cochrane Library, a world-renowned medical database that is famous for its high-quality evidence reviews. It comes as a battering ram to the recommendations of the U.S. public health establishment, which urged children as young as two to wear masks throughout the pandemic.

“This amounts to the scientific nail in the coffin for mask mandates,” said Kristen Walsh, a clinical professor of pediatrics in Morristown, New Jersey. “I just can’t wrap my mind around the fact that some schools are still actively forcing children to wear masks, much less children who need to see faces to learn.”

One would hope, but as Jennifer Sey, the former brand president of Levi Strauss, who was forced out for being insufficiently woke, writes:

What seems clear is that the enthusiastic, religious devotion to the dogma — “masks work” — signified adherence to a set of beliefs: I mask therefore I am good. I mask my children therefore I am loyal to the Democratic Party and public health diktats. I mask therefore I care. I am a loyal follower of “the Science.” My faith is unwavering.

Those who claim to be on the side of “the Science” will continue to push unscientific policies in order to prove that they were right all along. This is the sunk cost fallacy writ large. Don’t admit mistakes. Ignore the actual science in favor of “the Science.” And continue to punish those who challenge. As well as those most vulnerable who simply aren’t in a position to challenge at all.

“Science” has apparently been rebranded by the left. It is now a slogan — a tagline — shouted at heretics to signify one’s moral superiority and loyalty to the party. What we have now is “science” that ignores the scientific method, which means “the science” is a cult. And a dangerous one at that.

Indeed.

GOVERNMENT AT WORK: When Your SEC Prosecutor Is Your Judge, Scandals Surely Follow.

Two recent federal appeals court cases involving the US Securities and Exchange Commission have rocked the world of administrative law. They also have shown that it’s time to restore the separation of prosecutorial and adjudicative powers, say New Civil Liberties Alliance’s Peggy Little and Kara Rollins.

“Agencies that combine enforcement and adjudication—as many do—are unconstitutional. But convenient for the government,” law blogger Glenn Harlan Reynolds posted earlier this year. For those who follow SEC enforcement, particularly adjudication by in-house administrative law judges, two recent cases from the US Court of Appeals for the Fifth Circuit may change all that.

Michelle Cochran, a Texas CPA who quit her small accounting firm in 2013, was blindsided in 2016 by SEC charges of violating federal accounting standards for what are commonly called paperwork violations. She opposed the claims, pointing out that none of her audits ever had to be restated, and no clients or shareholders ever complained or alleged any harm. Because the relevant audits occurred at least three years prior to the hearing, she had no control over them and no way to verify whether they were complete.

Despite acknowledging her difficult working conditions, the SEC ALJ ruled against her, imposing a $22,500 fine and a five-year industry bar. That initial decision was vacated in 2018 following the US Supreme Court’s decision in another SEC case holding that her ALJ had not been constitutionally appointed. Rather than endure a second rehearing before a new SEC ALJ who still enjoyed unconstitutional multiple tenure protections, Cochran sued in federal district court. That court denied jurisdiction, prompting Cochran to appeal and eventually an en banc rehearing before the Fifth Circuit.

Cochran v. SEC, decided in December 2021, broke ranks with nearly a decade of circuit court decisions across six circuits. Those previous decisions had illogically—and counter to clear Supreme Court precedent—required enforcement targets, seeking to raise these constitutional challenges, to first undergo unconstitutional administrative proceedings before reaching a federal court competent to rule on the constitutional questions. The full circuit court held 9-7 that these constitutional challenges could and should be brought in federal courts before enforcement targets had to endure administrative proceedings. Because the decision created a circuit split, the Supreme Court will hear Cochran next fall.

The second case, Jarkesy v. SEC, involved administrative claims that George Jarkesy, a radio host who managed two hedge funds, had committed securities fraud by allegedly misrepresenting the funds’ investment parameters, safeguards, valuations, fees, and management. Jarkesy came to the Fifth Circuit after going through the full administrative mill, a process that took seven years. After Jarkesy had endured his administrative proceeding, a Fifth Circuit panel held in May 2022 that those proceedings must be vacated because they denied him his constitutional right to a jury trial, and unconstitutionally delegated legislative power to the SEC to decide who gets to be tried in a real court and who must endure the ALJ system. Finally, Jarkesy held that SEC ALJs are unconstitutionally protected from removal in violation of the Take Care Cause of Article II of the Constitution, the same question on which Cochran seeks a judicial decision.

The two cases have rocked the world of administrative law. But Michelle Cochran and George Jarkesy have another thing in common that has received remarkably little to no media attention.

I’ve always thought that this sort of thing is unconstitutional. I’m glad the NCLA — reminder, I’m on their board of advisors — is finally getting something done about it.

THE SEC NEEDS A SPECIAL COUNSEL INVESTIGATION: SEC Enforcement Staff Accessed Adjudicatory Documents in Midst of Administrative Proceedings.

SEC released a statement yesterday admitting that “administrative support personnel from Enforcement, who were responsible for maintaining Enforcement’s case files, accessed [restricted] Adjudication memoranda via the Office of the Secretary’s databases.” This self-described “control deficiency” is actually an outrageous breach of ethics—and possibly law—by SEC that illustrates why the Constitution forbids housing prosecutorial functions and adjudicatory functions in a single agency.

SEC filed in Cochran simultaneously with publishing the statement, so Ms. Cochran was not informed of SEC’s “control deficiency” when it was discovered. NCLA and Ms. Cochran were only made aware of the Commission’s breach when it was publicly disclosed. The Commission has known about this issue long enough to hire outside investigators, conduct an audit with “dozens of interviews,” and collect documents. Yet critical details, including who knew what and when, remain undisclosed. If this breach of ethics had occurred in private litigation or before a federal court, it would raise red flags. SEC claims “this access did not impact the actions taken by the staff investigating and prosecuting the cases or the Commission’s decision-making in the matters.” At present, there is no way to verify that this breach did not impact Ms. Cochran’s case. To make matters worse, SEC hired an outside firm that regularly does millions of dollars of business with the agency to investigate the scandal. Hiring a firm with a conflict of interest to investigate a conflict of interest hardly inspires confidence.

Restoring the “controls” that were disregarded here is not enough. As this breach has demonstrated, it would be impossible to monitor the internal controls at SEC sufficiently to guarantee that agency staff would not make the same error again. A computer correction of a purported “control deficiency” cannot repair the all-too-human impulse to abuse power, win at all costs, and share information inside an agency. Whatever controls are baked into the software, none of those can remedy the inherent problems that combining the enforcement and adjudication power inside an agency create.

Agencies that combine enforcement and adjudication — as many do — are unconstitutional. But convenient for the government.

I posted this last week, but this story has gotten surprisingly little coverage so I’m posting it again. Understand: The “prosecutors” at the SEC illegally accesssed files belonging to the “judges.”

This raises serious questions about the trustworthiness of the SEC, and demands an outside investigation with subpoena power.

THE SEC NEEDS A SPECIAL COUNSEL INVESTIGATION: SEC Enforcement Staff Accessed Adjudicatory Documents in Midst of Administrative Proceedings.

SEC released a statement yesterday admitting that “administrative support personnel from Enforcement, who were responsible for maintaining Enforcement’s case files, accessed [restricted] Adjudication memoranda via the Office of the Secretary’s databases.” This self-described “control deficiency” is actually an outrageous breach of ethics—and possibly law—by SEC that illustrates why the Constitution forbids housing prosecutorial functions and adjudicatory functions in a single agency.

SEC filed in Cochran simultaneously with publishing the statement, so Ms. Cochran was not informed of SEC’s “control deficiency” when it was discovered. NCLA and Ms. Cochran were only made aware of the Commission’s breach when it was publicly disclosed. The Commission has known about this issue long enough to hire outside investigators, conduct an audit with “dozens of interviews,” and collect documents. Yet critical details, including who knew what and when, remain undisclosed. If this breach of ethics had occurred in private litigation or before a federal court, it would raise red flags. SEC claims “this access did not impact the actions taken by the staff investigating and prosecuting the cases or the Commission’s decision-making in the matters.” At present, there is no way to verify that this breach did not impact Ms. Cochran’s case. To make matters worse, SEC hired an outside firm that regularly does millions of dollars of business with the agency to investigate the scandal. Hiring a firm with a conflict of interest to investigate a conflict of interest hardly inspires confidence.

Restoring the “controls” that were disregarded here is not enough. As this breach has demonstrated, it would be impossible to monitor the internal controls at SEC sufficiently to guarantee that agency staff would not make the same error again. A computer correction of a purported “control deficiency” cannot repair the all-too-human impulse to abuse power, win at all costs, and share information inside an agency. Whatever controls are baked into the software, none of those can remedy the inherent problems that combining the enforcement and adjudication power inside an agency create.

Agencies that combine enforcement and adjudication — as many do — are unconstitutional. But convenient for the government.

BRITISH MEDICAL JOURNAL: FACEBOOK’S “FACT-CHECKING” IS A LIE:

Dear Mark Zuckerberg,

We are Fiona Godlee and Kamran Abbasi, editors of The BMJ, one of the world’s oldest and most influential general medical journals. We are writing to raise serious concerns about the “fact checking” being undertaken by third party providers on behalf of Facebook/Meta.

In September, a former employee of Ventavia, a contract research company helping carry out the main Pfizer covid-19 vaccine trial, began providing The BMJ with dozens of internal company documents, photos, audio recordings, and emails. These materials revealed a host of poor clinical trial research practices occurring at Ventavia that could impact data integrity and patient safety. We also discovered that, despite receiving a direct complaint about these problems over a year ago, the FDA did not inspect Ventavia’s trial sites.

The BMJ commissioned an investigative reporter to write up the story for our journal. The article was published on 2 November, following legal review, external peer review and subject to The BMJ’s usual high level editorial oversight and review.[1]

But from November 10, readers began reporting a variety of problems when trying to share our article. Some reported being unable to share it. Many others reported having their posts flagged with a warning about “Missing context … Independent fact-checkers say this information could mislead people.” Those trying to post the article were informed by Facebook that people who repeatedly share “false information” might have their posts moved lower in Facebook’s News Feed. Group administrators where the article was shared received messages from Facebook informing them that such posts were “partly false.”

Readers were directed to a “fact check” performed by a Facebook contractor named Lead Stories.[2]

We find the “fact check” performed by Lead Stories to be inaccurate, incompetent and irresponsible.

— It fails to provide any assertions of fact that The BMJ article got wrong

— It has a nonsensical title: “Fact Check: The British Medical Journal Did NOT Reveal Disqualifying And Ignored Reports Of Flaws In Pfizer COVID-19 Vaccine Trials”

— The first paragraph inaccurately labels The BMJ a “news blog”

— It contains a screenshot of our article with a stamp over it stating “Flaws Reviewed,” despite the Lead Stories article not identifying anything false or untrue in The BMJ article

— It published the story on its website under a URL that contains the phrase “hoax-alert”

We have contacted Lead Stories, but they refuse to change anything about their article or actions that have led to Facebook flagging our article.

We have also contacted Facebook directly, requesting immediate removal of the “fact checking” label and any link to the Lead Stories article, thereby allowing our readers to freely share the article on your platform.

There is also a wider concern that we wish to raise. We are aware that The BMJ is not the only high quality information provider to have been affected by the incompetence of Meta’s fact checking regime. To give one other example, we would highlight the treatment by Instagram (also owned by Meta) of Cochrane, the international provider of high quality systematic reviews of the medical evidence.[3] Rather than investing a proportion of Meta’s substantial profits to help ensure the accuracy of medical information shared through social media, you have apparently delegated responsibility to people incompetent in carrying out this crucial task. Fact checking has been a staple of good journalism for decades. What has happened in this instance should be of concern to anyone who values and relies on sources such as The BMJ.

Facebook’s “fact checking” is a lie. It’s basically narrative-checking.

THE NEW CIVIL LIBERTIES ALLIANCE, WHOSE BOARD I’M ON, JUST CHALKED UP ANOTHER WIN, THIS TIME IN THE FIFTH CIRCUIT: Cochran v. SEC. ” In order to ‘faithfully execute the laws,’ which is his duty under the Constitution, the president must not only be able to appoint all federal officers, he must be able to remove them as well. But SEC ALJs, like most civil servants, are protected by what amounts to life tenure. If the president cannot remove ‘officers’ such as ALJs, then he can’t control the administrative agencies he’s charged with overseeing.”

The opinion is here.

THE NEW CIVIL LIBERTIES ALLIANCE, ON WHOSE BOARD I SERVE, argued before the 5th Circuit in Michelle Cochran v. U.S. Securities and Exchange Commission. You can listen to the oral argument here.

FIGHTING ADMINISTRATIVE TYRANNY: NCLA’s Constitutional Claim at en banc Fifth Circuit Against SEC ALJs Draws Strong Amicus Support.

Background story here.

THE GRUMPY ECONOMIST: Beyond testing — The central question for pandemic policy. “Reproductive rate is not a low number plus a few super spreaders. It is a distribution with a very fat tail. The report seems to personalize the super spreaders as particularly ill behaved people. They are more likely normal people who participated in a particularly poorly structured activity, like the famous South Korean church.”

And some seem to be biologically predisposed to be super-infectious, again through no fault of their own.

POST-QUARANTINE: Needed: the reopening plan. Fast. “Needed fast: a plan to open up the economy again in a virus-safe way. Every business should be (and likely is) working hard to figure out how to operate in a virus-safe way. Federal state and local government need to be working 24 hours a day during the next few weeks to promulgate virus-safe practices. Not because they are particularly good at it, but because they are the ones shutting things down, and their permission is needed to reopen, fully or partly. People also will want the confidence to know that businesses they patronize are compliant. You’ve got two weeks — figure out what combination of personal distancing, self-isolation, testing, cleaning, etc. will allow each kind of business to reopen, at least partially.”