The World and Everything in It — December 28, 2020

MARY REICHARD, HOST: Good morning!

The Supreme Court considers how and when you can sue the IRS.

NICK EICHER, HOST: That’s ahead on Legal Docket.

Also today the Monday Moneybeat: a December surprise—why President Trump changed his mind on the grand bargain on another round of Covid relief.

Plus, the WORLD History Book. Today, the 175th anniversary of surgical anesthesia.

REICHARD: It’s Monday, December 28th. This is The World and Everything in It from listener-supported WORLD Radio. I’m Mary Reichard.

EICHER: And I’m Nick Eicher. Good morning!

REICHARD: Time now for the news with Kent Covington.

KENT COVINGTON, NEWS ANCHOR: Trump signs government funding, coronavirus relief legislation » President Trump last night signed a massive government funding and coronavirus relief bill into law.

Last week, he threatened to veto the legislation. But since then, he’s been under heavy pressure from Republicans to relent. 

Maryland Governor Larry Hogan said Sunday that if Trump didn’t sign it… 

HOGAN: Look, millions of people are going to suffer. The Paycheck Protection Plan ran out in July. Unemployment benefits are about to run out. 

Congress sent the legislation to the president’s desk before Christmas. On top of more than $2 trillion in government funding, it provides $900 billion worth of coronavirus relief funds. That does include funding for small business loans and a federal boost to unemployment aid. 

And Uncle Sam will send out another round of stimulus checks—$600 per qualified adult and $600 per child. 

But last week, the president said that’s not enough and called on lawmakers to amend the bill to send out $2,000 checks. House Speaker Nancy Pelosi had planned a House vote today on a standalone bill to do just that. 

But GOP Senator Pat Toomey said yesterday…

TOOMEY: I don’t agree with $2,000 checks to people who have had no lost income whatsoever… 

He and many other Republicans are reluctant to keep piling onto a nearly $28 trillion national debt. 

Now that the president has signed the original package, it’s unclear if the House will still vote on a standalone bill. 

Canada confirms first cases of coronavirus variant » Canadian health officials say they have confirmed the first three known cases in the country of a coronavirus variant. 

The new strain has been running rampant in the U.K., prompting many nations to impose travel restrictions from Britain. Those countries include Canada and the United States. 

U.S. Surgeon General Jerome Adams told ABC’s This Week…

ADAMS: If you’re worried about a new, potentially more contagious variant, it is that much more important that we follow the four Ws: wear a mask, wash your hands, watch your distance, and the fourth one is wait on gatherings, especially with one last holiday coming up, New Years. We need to be very careful. 

Experts say there’s no evidence that the new strain is any more virulent or that it’s resistant to coronavirus vaccines. But it does appear to be much more infectious.

On Thursday, the CDC announced that anyone traveling from the U.K. to the United States will have to test negative for the virus no more than 72 hours before boarding a flight.

FBI investigating “person of interest” in Nashville Christmas Day bombing » Authorities say it appears that the suspect in the Christmas Day bombing in downtown Nashville blew himself up in the explosion.

An RV packed with explosives detonated Friday morning injuring three people and damaging more than 40 businesses.

Nashville police officer James Luellen said minutes before the blast an announcement played from a loudspeaker on the RV. 

LUELLEN: The RV started making an announcement, somewhere along the lines—don’t quote me exactly—but there’s a large bomb within this vehicle. Your primary objective is to evacuate. 

FBI agents searched the home of the 63-year-old suspect in suburban Nashville on Saturday.

Authorities believe he acted alone. And they’re still trying to determine a motive, but Nashville Mayor John Cooper told CBS’ Face the Nation…

COOPER: The truck was parked adjacent to this large historic AT&T facility. And to all of us locally, it feels like there has to be some connection with the AT&T facility and the site of the bombing. 

The blast affected AT&T communications in the area, causing service disruptions over the weekend. 

U.S. serviceman faces charges in Ill. bowling alley shooting » Meantime in Illinois, authorities say an active duty U.S. serviceman from Florida is behind bars facing murder charges after a deadly shooting on Sunday. 

Police say the 37-year-old man apparently opened fire at random inside a bowling alley in the town of Rockford. The gunman killed three adults and wounded several others, including a 14-year-old boy and a 16-year-old girl. 

Rockford Mayor Tom McNamara told reporters…

MCNAMARA: We have three families who are mourning the loss of their loved ones. And we have three additional families who are praying that their loved ones live throughout these really horrific injuries.

Rockford, Illinois Police Chief Dan O’Shea said police arrested the suspect within minutes of the shooting. 

O’SHEA: He was taken into custody without any officers firing their weapons. The suspect had attempted to obscure his identification and hide his weapons prior to the officers taking him into custody. 

O’Shea said the suspect had no known ties to any of the victims. He faces three charges of murder and three charges of attempted murder. 

Baseball hall of famer Phil Niekro dies » Baseball hall of famer Phil Niekro has died. 

For 24 years, Niekro baffled hitters with his trademark knuckleball. 

The five-time All-Star spent 20 of those seasons in an Atlanta Braves uniform. He also pitched for the Yankees, Indians, and Blue Jays. 

Niekro punched his ticket to the Hall of Fame with a career ERA of 3.35 and more than 300 wins. 

The Braves said Sunday that Niekro died in his sleep at his home in suburban Atlanta. He was 81 years old.

I’m Kent Covington.

Straight ahead: suing the IRS.

Plus, a historic advancement in anesthesia.

This is The World and Everything in It.

NICK EICHER, HOST: It’s Monday the 28th of December, 2020. Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. Well, it’s time for Legal Docket.

And this week, my co-host on the Legal Docket podcast stood in for me and gave me the gift of time: some excellent time to spend with my family over the holidays. I’m so grateful for that. We really look out for one another here.

EICHER: Exactly right. Well, a new year is right around the corner, right around the end of the week. The Supreme Court resumes hearing oral arguments two weeks from now. 

So today, as you said, WORLD reporter and lawyer Jenny Rough will catch us up on two oral arguments the court heard this month. 

One deals with mortgages, and the other, taxes.

JENNY ROUGH, REPORTER: Not only is January the start of the New Year, it’s also the beginning of tax season! That brings me to the first of two cases today. A tax law case: CIC Services v. IRS.

IRS meaning the Internal Revenue Service. 

Tax litigators and tax professors are going nuts over this. I’m not sure anyone else is, but WORLD reports on every Supreme Court case. Even if a case doesn’t involve an exciting issue, it’s always important.   

Okay. Typically, you might think of the IRS as a government agency that enforces tax laws. The IRS goes after you. Here, a consulting firm called  CIC Services is returning the favor—going after the IRS. CIC claims the IRS violated a law that the IRS is required to follow. 

I’ll try to stay out of  the weeds, but it’s important to know that CIC advises its clients on transactions known as micro-captive insurance transactions. Forbes writer Peter J. Reilly said that term sounds like an evil city you’d read about in a DC Comic strip. 

Alas, it’s not that exciting. 

But the IRS sees micro-captives as a scheme, abusive tax shelters. So the IRS issued a Notice [Notice 16-66] that demands CIC to turn over its client list. CIC claims the IRS failed to follow proper procedures, and as a result the Notice is invalid. So it sued the IRS. 

You can sue the IRS. But the question of when—under what circumstances you can sue the IRS—that’s complicated. And that’s what the parties are fighting about here. 

As a general rule, if you think the IRS is messing up, you go ahead and pay your taxes. Then sue for a refund. That rule—pay now, fight it later—is based on a 1867 law, passed shortly after the Civil War. It’s called the Anti-Injunction Act. 

The theory behind it: That a government cannot function if it cannot collect taxes efficiently and quickly. 

Fair enough. 

But CIC argues the pay-now-litigate-later rule shouldn’t apply here. Instead, the court should allow an exception. Because there is no tax to pay. There’s only information to report. How would they sue for a refund? Cameron Norris argued on behalf of CIC Services. 

CAMERON NORRIS: CIC is challenging the Notice, not the assessment or collection of any tax. There is no tax for CIC to pay here. The Notice is not a tax, and CIC is a material advisor, not the taxpayer. 

Several justices pointed out if CIC does not disclose its client list, it will incur tax penalties, and tax penalties are taxes. 

But let’s say CIC does not report the information. A willful failure to comply could make the firm guilty of a crime. The firm is stuck. Disclose the info and it won’t be penalized. Thus it cannot sue for a refund. Thus it cannot have its day in court. 

But not disclosing could land you in jail for tax fraud.

Justice Samuel Alito indicated that sounded unfair and unreasonable. How would a firm ever challenge a disclosure requirement?

ALITO: The code says that willfully failing to comply with the reporting requirement is a crime. So I really don’t see how they can get review without committing a crime.

Justice Stephen Breyer asked the IRS: What’s a taxpayer to do? 

BREYER: I’m simply asking how do they get judicial review without paying the tax — the penalty, which I’ll call a tax, how do they get judicial review of the lawfulness of the order that says — or the report that says give us the information? How do they do it? 

Jonathan Bond argued for the IRS. He said CIC simply needs to make a note in good faith alerting the IRS that it’s not complying and stating why. 

BOND: What you do is you file a return and state your specific objection to particular information that you don’t want to provide because you believe in good faith that it is not legally required. The IRS can then assess a penalty which then you can sue over in a refund suit. 

Think of it this way. Say you won $100 in a charity raffle and you don’t believe you owe taxes on it. You can state that on your tax return. You haven’t committed a crime. You had no evil intent to deceive. You red-flagged it.

Still, those penalties deter taxpayers from bringing challenges. 

Justice Neil Gorsuch raised another matter. He said the IRS fails to comply with certain procedures about 40 percent of the time. And given its growing power, that seems problematic.

GORSUCH: Today, of course, the IRS regulates enormous swaths of the national economy, from our medical care to our pensions, to the entire nonprofit sector, a lot of the educational sector, child care. … Should we be concerned?

Lawyer Bond continued to insist there is a proper time to raise a challenge to the IRS. And CIC made the wrong choice about that.

The court has made an exception before in a previous case that involved a different statute that contained similar language. CIC relies on that to say the circumstances here are similar. The IRS argues no. Different statute, different case.

Perhaps the court will resolve this case by carving out a specific exception to the Anti-Injunction Act. A solution Justice Amy Coney Barrett suggested to CIC attorney Norris:

BARRETT: Would it be cleaner for us to go the Regan route but maybe, you know, phrase it this way? That this is covered by the AIA. However, because you would have to incur criminal penalties in — in — in order to sue, that you have no adequate alternative remedy. So even though the AIA applies, it doesn’t bar your suit? Would you be satisfied with that approach? 

 NORRIS: We would, Justice Barrett. We just want to go litigate our APA claims, and that — that resolution would be fine with us.

CIC has lost twice in lower court. If the firm wins at the Supreme Court, it would make it harder for the IRS to put a quick stop to tax schemes and abuses. And it could open the door so that every Tom, Dick, and Sally taxpayer who is aggravated with the IRS says, we don’t have to wait to sue, we fall in the exception. If the IRS wins, it would continue to limit the point in time that a taxpayer can challenge a rule. And make it easier for the IRS to skirt its legal duty to follow proper procedures.   

The second case is Collins v. Mnuchin. I’m going to pair it down as much as possible. 

The plaintiffs in Collins are shareholders of Fannie Mae and Freddie Mac. Fannie and Freddie are government-backed mortgage lenders that played a role in the collapse of the housing market in 2008. Following that disaster, Congress enacted a statute [HERA] that created a new federal agency, the Federal Housing Finance Agency. 

The statute included what’s known as a removal clause.

That said that the director who runs the agency can only be removed for-cause by the president. Not at will. The idea behind such removal clauses is to keep the position apolitical.

One question in this case is whether that removal clause violates Article II of the United States Constitution. Article II says: “The executive Power shall be vested in a President of the United States of America.”

If the court finds the structure of the agency does violate the Constitution, what is the fix? Is every action the director took invalid? Justice Brett Kavanaugh wondered about the precedent. 

KAVANAUGH: You mentioned a slippery slope argument If this agency structure was unconstitutional, then so too would be the Social Security Administration, the Office of Special Counsel, which are also headed by single directors, and I think the Solicitor General agrees on that. 

Another fix could be for the court to take a legal scalpel, as it were, sever the provision, and leave the rest of the act in place. That’s the approach the court took with a similar case last year.

And that’s it for this week’s Legal Docket.

MARY REICHARD, HOST: Coming up next on The World and Everything in It: The Monday Moneybeat.

NICK EICHER, HOST: Financial analyst and adviser David Bahnsen checks in with us. David, I hope you had a wonderful Christmas with your family.

DAVID BAHNSEN, GUEST: Well, same to you, Nick, and good to be with you. Getting ready to go into the new year here.

EICHER: Right and finishing the old one with a surprise. It appeared Congress and the White House had a deal, a grand bargain among Democrats and Republicans to put differences aside, hold their noses, and fast-track a COVID relief package. And then all of the sudden—now, this may have come as no surprise to you, but it certainly came as a surprise to me and I don’t think I was alone on that—that President Trump just reversed course. 

What happened?

BAHNSEN: Well, I don’t think there is anybody who fully knows exactly. He was totally, completely removed from the process of negotiating the bill. He had indicated to Secretary Mnuchin 10 different times that he was on board with what they were doing. And there’s a lot of people that are really against the bill. They think even the $900 billion is just way, way, way too expensive for what the need is. 

It’s important for people to understand, though, that President Trump’s criticism is not that it’s too expensive. It’s that it’s not expensive enough. He’s asking everyone to spend a little bit more than three times the amount of money that they’ve budgeted as direct payment to taxpayers.

Well, of course, Pelosi just said, “OK, great.” And she threw, upon hearing that Trump was demanding a $2,000/month payment to everyone, she went and said, “Yep, you got it,” and put in an amendment to the bill to do just that, which of course the House Republicans voted down. So President Trump’s actions here have been able to pit himself against Republicans, not against the Democrats. It’s a very strange set of circumstances. 

And as you and I are recording, we don’t really know what he’ll end up doing, because he has this very complicated thing that essentially is a pocket veto. If he just sort of vetoes the bill right now, there’s no question that both the House and Senate, they’d be able to override the veto. It passed by a massive majority in both chambers of Congress. And, yet, because he can sit on it for 10 days—normally it would just go into law if he does nothing for 10 days—but in this case, that puts you past January 3rd, into the new session. 

So if he does nothing, then technically Congress has to pass a new bill, and yet that would also delay the unemployment extension, it would delay all kinds of other activity. So, the right thing to expect here is that he’s not doing that and we really just have to assume that one way or the other this is going to get resolved.

EICHER:  You and I are pretty conservative guys on federal spending—meaning, we’re not crazy about big government programs—but just for the sake of argument: Does President Trump not have something of a point here, that after everything that government has done to business and all the rest of us with the COVID lockdown policies, to say, “well, here’s $600, let’s call it even. That’s not good enough.” That’s what he’s saying.

BAHNSEN: Well, the $600 isn’t the essence of the bill. It’s $166 billion of the bill and I’d be very happy to take that $166 billion and give it to the businesses that are affected. 

My criticism of this $600 payment, let alone a $2,000 payment, is that it is indiscriminate as to who it goes to. There are 90 percent of people that have not been impacted by the lockdowns that would receive the money, when in fact the people that have been affected would be receiving a much diminished figure relative to what it could be if it were actually added to small business support. 

So, there’s over $300 billion in the bill that is going to a PPP reload, allowing those businesses that have been so unfairly treated by these government lockdowns—both the one that President Trump did back in March, April, May, and the one that various governors and mayors have been sort of arbitrarily doing here in recent months. There’s no reason that those funds cannot be very targeted and very effectively spent, which I would argue is certainly what happened with the first PPP. 

So, I don’t think that it’s a matter of $600 a week is insufficient to those that have been affected, I just think it’s the wrong way to get a $600 payment or a $2,000 payment to anyone. The indiscriminate nature of it is a real problem. 

EICHER: Let’s quickly hit some of the economic data. I saw—and I wonder how you interpret this—I saw a report that household spending dropped in November, month on month, November versus October, first time in seven months. Is this a signal of concern to you at all?

BAHNSEN: No, because they’re year-over-year. And year-over-year, the numbers are higher. The month-over-month having gone down is really kind of noise. But what you have to do to get apples to apples is look at how people in November of one year spent versus how they spent in November of the next.

But when you’re talking about a consumer in total that has actually spent about four percent more year-over-year than last year, and that was with this pandemic, I think it’s actually really stunningly bizarre. 

Now, why I as an economist don’t actually find it bizarre is because I can explain it by access to credit. And you will never find a time when the American consumer is not willing to spend money when they have access to credit. When credit tightens and they can’t spend, that’s what you call a recession. But you really do not get recessions—and this is what makes Keynsians so mad when I say it, but I’m right [laughs] is that you don’t have periods where Americans all the sudden lose their animal spirit to consume. Americans are always very, very willing to go spend money. The key is they have to have access to money and declining wages or declining credit can mess that up. But really in this case there’s such a fluid amount of credit in the American economy that you see very little spending being held up by lack of demand.

EICHER: Alright, David Bahnsen, financial analyst and advisor. Happy New Year!

BAHNSEN: Thanks so much, Nick. Happy New Year.

NICK EICHER, HOST: Today is Monday, December 28th. Good morning! This is The World and Everything in It from listener-supported WORLD Radio. I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. Next up: the WORLD History Book. 

This week, a murder in Canterbury, a medical advancement in Georgia, and an air raid in London. Here’s WORLD senior correspondent Katie Gaultney.

MUSIC: [HILDEGARD VON BINGEN, VOICES OF ASCENSION]

KATIE GAULTNEY, SENIOR CORRESPONDENT: Tertullian wrote less than 200 years after Christ’s birth that “the blood of the martyrs is the seed of the Church.” The murder of Thomas Becket on December 29, 1170, certainly galvanized the 12th century church. 

In the Middle Ages, the Archbishop of Canterbury’s shrine became a popular pilgrimage destination in Europe. 

BBC: The immediate impact was a genuine, popular, grassroots reaction to it. Shock at what had happened. One of the most famous people in England, the leader of the Church, had been killed in the mother church of England, by people who claimed they had been acting as representatives of the king….

Biographers immortalized him shortly after his death, and a cult sprang up around his memory. Centuries later, the Canterbury Cathedral where he died became the destination of poet Geoffrey Chaucer’s pilgrims in his Canterbury Tales. Becket’s death was also the subject of an Oscar-winning film, and the inspiration for T.S. Eliot’s verse drama “Murder in the Cathedral.” 

This scene—recorded by Caedmon Records—is Eliot’s depiction of the moment of Becket’s death at the hands of four knights who thought they were carrying out the will of England’s King Henry II.

CLIP: For my Lord I am ready to die, that his church may have peace and liberty. Do with me as you will, to your hurt and shame; But none of my people, in God’s name. Whether layman or clerk, shall you touch. This I forbid./ Traitor! traitor! traitor! traitor!

Although previously allied, Henry II and Becket began to clash after the king appointed Becket archbishop of the important see of Canterbury. Their main differences concerned the power of church versus the state. But Henry was grieved over Becket’s execution, insisting he hadn’t wished for his old friend to die. He publicly prayed for Becket’s soul and paid penance. Today, the Catholic Church and the Anglican Communion both consider Becket a saint. 

MUSIC: [HILDEGARD VON BINGEN, VOICES OF ASCENSION]

Jumping ahead nearly 700 years now, to a medical advancement many mothers around the world are thankful for. On December 27, 1845, Dr. Crawford Long of Jefferson, Georgia, welcomed a child—and, for the first time, administered anesthetic to a woman in labor—his wife.  

AUDIO: [Crying baby]

MUSIC: [LULLABY, BRAHMS, PERFORMED BY YO-YO MA AND KATHRYN STOTT]

He had Mrs. Long inhale ether while she was giving birth. He published details of the technique in 1849, and the method caught on shortly after. But Mrs. Long wasn’t his first patient to receive anesthesia. He used it three and a half years earlier when he removed a tumor from a patient’s neck. 

Susan Deaver is the former director of the Crawford W. Long Museum in Jefferson. She explains how a New York internship—and seeing patients in pain—motivated him. 

DEAVER: And when he was working in New York City hospitals and seeing people suffer from pain of surgery, it was his wish, as it was of most medical people at that time, to find a method to allay pain, but the usual statement was, “There isn’t anything to relieve pain and there never will be.” 

Ether fell out of popularity in the 1960s, but Long’s pioneering techniques provided more than a century of pain relief in surgery. As a doctor, Long was strongly convinced of his calling to serve humanity. He told a colleague, “My profession is a ministry of God to me.”

Turning now to World War II and one of the most destructive air raids of the Blitz: The city nicknamed “The Smoke” lit up on December 29, 1940 with the Second Great Fire of London. The British Ministry of Information offered this report at the time. 

NEWSREEL: From shortly after 6 o’clock until half past 10, the German army carried out one of the most devastating, fire-raising raids of the war. 

About 100,000 bombs—from 136 German bombers—fell on the city that night. All told, 160 people died in the blazes, and 250 more were injured. Firefighters faced plenty of headwinds: The primary water-main was bombed out. It was a blustery night. And many of the buildings were warehouses, sawmills, and timber factories, containing highly combustible materials. Getting water to the area under attack proved challenging. 

NEWSREEL: Most of the water had to be relayed from the River Thames up to a mile away. It was made all the more difficult by the fact that it was dead low-water at the time, and the relay crews had to get their hose ashore, across the treacherous mudflats from fireboats in midstream…

The economic devastation was so severe that some historians point to The Second Great Fire of London as one reason the British Empire declined in the second half of the 20th century. But there were symbolic victories that night. Churchill pleaded with fire crews that St. Paul’s Cathedral “be saved at all costs.” The flames encroached on the historic church, and on the criminal court building known as the “Old Bailey.” Heroic efforts kept the fire from overtaking those structures. 

NEWSREEL: However many of our stations are bombed and broken up, our spirits will never be broken! Look out, Hitler… We saved the Old Bailey that night! 

That’s this week’s History Book. I’m Katie Gaultney.

NICK EICHER, HOST: Tomorrow: We’ll hear how a new administration with Joe Biden in charge may change U.S. policy, more in line with his views on China. We’ll discuss what that might look like.

And young people are voting for the first time in Georgia in a high-stakes Senate run-off. We’ll have a report.

That and more tomorrow.

I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard.

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