The World and Everything in It — March 29, 2021

MARY REICHARD, HOST: Good morning!

The Supreme Court considers the limits of a “taking” under the Fifth Amendment.

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

Also today, the Monday Moneybeat: the Federal Reserve says zero interest as far as the eye can see. Is it a recipe for inflation or low-growth? Pick your poison.

Plus the WORLD History Book. Today, the anniversary of a major infrastructure project.

REICHARD: It’s Monday, March 29th. 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: Now here’s Kent Covington with the news.

KENT COVINGTON, NEWS ANCHOR: Heavy rain, flooding pound Tennessee » AUDIO: [SOUND OF STORM]

Residents in Tennessee are surveying the damage today after heavy rains and flood waters battered parts of the state over the weekend. 

AUDIO: [SOUND OF STORM]

Authorities said the bodies of four people swept away in flood waters were found yesterday. And Nashville Fire Chief William Swann said his department rescued hundreds of people from cars and homes. 

SWANN: We have about 251 incidents. It took 600 of our fire personnel to respond to these events.

Nashville Mayor John Cooper told reporters on Sunday:

COOPER: First responders are walking creek beds and working with the Red Cross to canvass affected neighborhoods.

The city recorded nearly 6 inches of rain Saturday, setting Nashville’s new single-day rainfall record for the month of March. Almost another inch of rain fell after midnight.

COVID / Post-vaccination study » Hospitalizations and deaths from COVID-19 are no longer falling in the United States. 

As of last week, CDC data showed that while nationwide progress against new cases had ground to a halt, the rate of serious illness continued to fall.

But the latest data show that the rate of hospitalizations and deaths have also plateaued.

New daily hospital admissions tied to the coronavirus are stuck at close to 5,000. 

And officials say about a thousand Americans still die of COVID-19 each day. That number has barely moved over the past week after nearly two months of dramatic progress. 

President Biden’s chief medical advisor Dr. Anthony Fauci said Sunday…

FAUCI: The variants are playing a part, but it’s not completely the variants. What we’re likely seeing is because of things like Spring Break and pulling back on the mitigation efforts that we’ve seen now. Several states have done that. 

Every state has to some degree loosened restrictions. But at least for now in many of the states with the most relaxed rules, hospitalizations are still falling, including Texas and Florida. 

Four states are now once again seeing an uptick in new hospital admissions. They are New Jersey, Maryland, Michigan, and Minnesota. All four states still have mask mandates and some capacity limits on businesses and gatherings. 

Scores of protesters killed in continuing crackdown in Myanmar » AUDIO: [SOUND OF PROTESTS] 

Protesters in Myanmar wielded homemade guns and molotov cocktails in clashes with police over the weekend in the city of Mandalay. 

That as the ruling military conducted its most brutal crackdown of anti-coup demonstrators yet, killing more than 100 people on Saturday.

And on Sunday, security forces reportedly opened fire on a crowd attending the funeral of a student protester killed the day before. 

According to an outside watchdog group, nearly 500 pro-democracy protesters have been killed since the February 1st coup.

At a beauty pageant over the weekend in Thailand, one contestant from Myanmar used her moment in the spotlight to plead for help. Han Lay fought back tears as she called on the international community…

LAY: Please help Myanmar. We need your urgent international help right now. 

U.S. Secretary of State Tony Blinken issued a statement saying the United States is “horrified by the bloodshed perpetrated by [Myanmar] security forces.” He said it shows that the ruling military “junta will sacrifice the lives of the people to serve the few.” 

Suicide bomb hits Palm Sunday Mass in Indonesia, 20 wounded » Two suicide bombers blew themselves up outside a packed Catholic cathedral yesterday, wounding at least 20 people. 

The bombers behind the Palm Sunday attack are believed to have been members of a terrorist group loyal to ISIS. 

The blast went off at about 10:30 a.m. as a first batch of churchgoers was walking out of the church and another group was filing in.

Security guards at the church were suspicious of two people on a motorcycle who wanted to enter the building. When the guards confronted them, one of the bombers detonated their explosives.

Police later said both attackers died instantly and evidence indicated one of the two was a woman. The wounded included four guards and several churchgoers.

I’m Kent Covington.

Straight ahead: the Supreme Court considers a challenge to the takings clause.

Plus, the first batch of Georgia’s favorite drink.

This is The World and Everything in It.

MARY REICHARD, HOST: It’s Monday, March 29th, 2021 and we’re here for another week of The World and Everything in It along with you. Good morning! I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. It’s time for Legal Docket. And before we get into our oral argument today, two decisions to report from last week.

In neither of these did Justice Amy Coney Barrett participate—she hadn’t yet been seated—so an eight-justice court and the first ruling was a 5-to-3 decision involving police use of force. 

It centered around the Fourth Amendment, which protects you from unreasonable search and seizure. In this case, the issue was seizure and how the law defines it.

Chief Justice John Roberts and Justice Brett Kavanaugh joined with the court’s three liberals in favor of a woman shot by police. Roxanne Torres was sitting in her car when officers in plain clothes approached her. She said she was worried they were carjackers, so she drove away. Police opened fire. They shot 13 rounds—two hit her in the back—but she was able to keep driving.

Torres would end up suing police for using excessive force, but she lost in lower courts for two reasons because police have qualified immunity and no court agreed police had actually seized her because she got away.

REICHARD: So the question for the high court was what does “seizure” mean? Is it contact that results in actual, physical control of a person? Or contact that is intended to restrain? 

The majority justices said intent to seize is key here. When an officer shoots someone, the court says that’s a seizure even when the person shot is able temporarily to avoid capture.

The decision sends the case back to the lower court now to sort out under this newly clarified definition.

In dissent, Justices Neil Gorsuch, Clarence Thomas, and Samuel Alito. One line of dissent sums up their view of the ruling:  “Neither the Constitution nor common sense can sustain it.”

EICHER: Now for the second ruling, this one unanimous—8-0. It says consumers have the right to sue Ford Motor Company in their home states, even if the company didn’t make or sell the car in question in that state.

In this case, Ford owners injured in accidents in Montana and Minnesota sued the company. Ford argued that just because people drive its cars in those states doesn’t give courts in those states jurisdiction over Ford.

But the Supreme Court disagreed, resoundingly, and that sets a uniform policy for the federal courts.

REICHARD: And now for our oral argument today. 

This case pits property owners against union organizers. It’s a dispute that goes back to the year 2015. That’s when United Farm Workers arrived at the Cedar Point Nursery in northern California. They brought bullhorns, which they used to make the case for workers to join a labor union.

This is what it sounded like.

AUDIO: [DEMONSTRATION]

The union claimed a right to do this under the state’s administrative rule, called Access Regulation. It aimed to support the right to unionize workers in the ag industry. 

Mike Fahner owns Cedar Point Nursery.

FAHNER: If this were to happen in any other industry in any other state the people would be expecting to be arrested and taken away in handcuffs. This Right to Access is a law that exists only in the state of California and only in the ag industry.

Cedar Point Nursery and another ag business argue this regulation violates the constitution in two ways. For one, they say it amounts to an illegal seizure of private property. That’s against the Fourth Amendment. 

For another, it’s a “taking” under the Fifth Amendment. So, the government should pay the company for commandeering company property for the benefit of a third party.

EICHER: But the union is asking that the justices consider the purpose of the Access Regulation when the state approved it 50 years ago. 

Farm workers are not typical employees. They move from harvest to harvest. And as a result, they are not typically in a building or congregating in a parking lot. 

A Supreme Court ruling from 1956 specifically says if other reasonable methods to reach workers are not available, then reaching them on site is ok.

Defending the regulation in support of the union, California’s Solicitor General Michael Mongan. He argued the regulation is constitutional because regulators drew it narrowly.

MONGAN: The only question before the Court is whether that regulation is a per-se taking. And the answer is no.

REICHARD: Let’s take a moment here. “Per-se”—a Latin term—and you know lawyers love their Latin. It means “by itself” or in or of itself. So the law understands a “per-se taking” as referring to two kinds of regulation: a regulation that by itself removes all the financial benefit to using a space—that’s one kind. The other is a regulation that by itself permits a permanent, continuous physical occupation of a space.

The regulation here doesn’t do any of that. It has time limits. 

Union organizers may only be on the worksite for up to three hours a day, and not all in a row. They can be there up to one-third of a year, up to 30 days at a time, and no more than 4 times a year. 

But the ag businesses say that’s disruptive, and still a taking, no matter how you limit it.

The union says with these limitations, it can’t be a taking that deserves compensation under the plain terms of the law.

Turning back to California’s lawyer Michael Mongan, making the argument in favor of the regulation, you’ll hear him here arguing that this regulation is not a per-se taking under any analysis.

Listen to this exchange with Chief Justice John Roberts, which I’ve edited for flow.

MONGAN: Petitioners can’t credibly claim that the Board’s regulation destroys all their rights to any part of their property or that it’s the functional equivalent of the government taking over their farm.

ROBERTS: What do you do if there’s more than one union that wants access? I mean, it’s not — it’s not at all unusual for unions to be competing for representation. So does each union get its own 120 days?

MONGAN: Yes, Your Honor, I think that’s right as a theoretical matter.

Theoretical matter, distinguishing it from practical matters. As a practical matter, he argued, the court should find nothing excessive about the regulation.

But Justice Stephen Breyer could see problems in parsing analysis that way. Let’s listen, and when you hear Justice Breyer say “petitioners,” understand that he means the ag businesses.

BREYER: I think the Petitioners are saying that whether this regulation is excessive or not is beside the point. This is the kind of taking that is, no matter what, requires compensation under the Fifth Amendment.

We have previously defined or sort of said that that kind of interest has to be a taking that is continuous and indefinite, like taking even an inch of somebody’s apartment house to put up a CATV system or taking an easement for the beach.  The virtue of their approach is that it’s pretty clear, I think, because, otherwise,  you get into the mess of saying, well, what  about a year? Here, it’s four percent of all the year’s hours and 10 percent or 12 percent of all the daylight hours and — and — but it is not government coming in, it’s a private person coming in. That’s what they say. 

So what are the rules that distinguish an easement from not? I thought an easement, for example, ran with the land so that if it’s no longer agricultural land but, rather, is a — a steel mill, you can’t transfer the easement. It doesn’t exist anymore. Nobody can go on the property. There may be other characteristics.  What are they, in your opinion, that distinguishes this case from a classical easement?

MONGAN: Well, Your Honor, I think that this is not a classical easement.

Not a classical easement, because this is not about a certain piece of land. Instead, it’s about a regulatory scheme to permit access to workers, wherever they happen to be.

Lawyer for the ag businesses pointed out that unions aren’t under the same conditions they were 50 years ago. Today, they can communicate with workers in myriad ways: social media, as one obvious example. 

And why should one group receive special favor to arrive unwanted on private property?

Justice Amy Coney Barrett grappled with where to draw the line. Listen to this exchange with the ag-business lawyer, Joshua Thompson.

BARRETT: When does something become a physical taking such that the per-se rule is triggered. So let me ask you this: What if California had a regulation that permitted union organizers to go onto the property of your clients one hour a day, one day a year. Is that a taking subject to the per-se rule?

THOMPSON: Yes, it is, Justice Barrett …

Some justices worried that a win for the ag businesses might implicate public health and safety inspections.  

Justice Neil Gorsuch cast that scenario to Thompson:

GORSUCH: Counsel, I think I’d like you to have a little more opportunity to respond to the charge that this would be revolutionary and the end of all regulatory regimes and that the government would never be  able to walk on anyone’s property again to — to  do a search or — or to conduct tests or ensure  the safety of licensed operations there, whether it’s a power plant or otherwise. Would you address that concern, please?

THOMPSON: Yes, I’d be happy to, Justice Gorsuch.

Thompson was happy to explain that in his view safety inspections don’t remove a property right. It’s truly about public health, not union organizing. A big difference. 

Part of the problem here is the way that ruling from the 1950s is worded: it says unions can come onto ag property if other “reasonable ways” to contact employees don’t exist. This formulation favors the ag businesses, because other ways do exist.

But that word “reasonable” is murky enough to open the way for government overreach.

One oddity in this case is that of the two arguments available, the ag businesses pursued the dicier argument: that what happened is in and of itself a taking—a per-se taking. 

That involves a huge intrusion, taking away 100 percent of the owner’s use with permanent occupation of property. 

But, as I’ve explained, that isn’t what actually happened.

Perhaps the ag businesses hope a more conservative court is willing to expand private property rights? Hard to say. 

If the ag businesses prevail, it’ll be a matter of how much money the government needs to pay for “taking” the property for union use. It won’t be a ruling to keep unwanted people off private property altogether.

If California wins, it’s foreseeable that the state would give favored status to certain groups at the expense of individual rights.

Either way, clarity is needed because the circuit courts are of different minds on the question.

And that’s this week’s Legal Docket.

NICK EICHER, HOST: These days, security is a serious matter. 

Sometimes, though, that can go a bit further than you’d expect.

A state representative from North Dakota learned the hard way. 

State Rep. Mary Johnson brought a device into the State capitol building that triggered alarms and forced authorities to evacuate the whole building!

What was this device you ask? 

A popcorn machine. 

Yup. Johnson was on her third batch of popcorn last Monday when the machine triggered the alarms for the second time that day.

She said wasn’t aware of a policy that bans popcorn poppers and not just popcorn poppers, but toasters, and other appliances that heat things up, create a bit of steam and smoke, and set off things that detect them—like fire alarms.

House Majority Leader Chet Pollert said it’s a shame  because “popcorn cheers people up.” 

So I guess it’s back to dour old politics.

It’s The World and Everything in It.

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

NICK EICHER, HOST: Financial analyst and advisor David Bahnsen joins us for our weekly conversation. David, good morning to you.

DAVID BAHNSEN, GUEST: Good morning, Nick. Good to be with you.

EICHER: Let’s talk about the Federal Reserve and interest rates. David, we hear that the central bank is content to stand pat with essentially zero interest. The Fed chairman—Jay Powell—keeps assuring us that the government can just keep spending and spending borrowed money because the debt is serviceable. We can afford our debt service because debt is inexpensive. But I keep reading we’re in danger of an explosion of inflation and you’ve said that’s not the real issue. Why, though, do we continue hearing about the threat of inflation?

BAHNSEN: Well, we continue to hear about inflation because when you’re a hammer, everything looks like a nail. And the people who are worried about inflation have been worried about inflation since 1974. And I think that it’s totally understandable. I think inflation’s a very easy thing to understand. It doesn’t require a lot of complexity or nuance, but it just simply misses some important economic realities, which are themselves very negative. And that is that you can’t get inflation when a bunch of money that has been printed is not circulating throughout the economy.

The reason that I do not believe we’re going to have inflation is a negative reason. I’m not saying it is a positive thing. I’m saying it as a Japan-like condition that because of excessive government debt there is downward pressure on bond yields because of the crowding out of the private sector. And that we have pulled forward a lot of future growth into the present and that we now have kind of forced ourselves in a negative feedback loop that creates lower growth, slower growth—not inflation. And this has been the precedent for 30 plus years in Japan, in the United States, in the European Union. They’re facing disinflationary pressures. 

So, the notion of the Fed adding a lot of money to the balance sheets, a lot of people have a hard time understanding what is different about that versus just printing money and dropping it out of a helicopter. But it is very different. And I don’t like to bore people with these economic differences, but I do like to get the conclusions right. And the conclusion is that the fiscal side, the congressional side, the Treasury side, the governmental side and then the Fed and monetary side are both in cahoots together to try to attention a lot of the problems we have in our economic life. And the way they’re to attention those things is with a policy that creates ongoing debt deflation. And I believe they would create inflation in a second if they could. It is not for lack of trying. I just simply they can do it and my proof of that is the entire last generation.

EICHER: And so you’re saying that the effect is poisonous in a way, but it’s a different kind of poison than inflation.

EICHER: That’s exactly what I’m saying. A similar analogy I use is with weather. I say, just because I’m predicting a hurricane and not an earthquake does not mean that I’m predicting something positive. But I think that with inflation, it allows people to understand it and so they can go to a conclusion that’s a little bit simpler and a little bit more historically familiar because we experienced inflation in our country in the 1970s. 

But the difference is that the debt-to-GDP ratio has gone so much higher and people are understandably—including myself—incredibly distraught over 120-130 percent debt-to-GDP, getting very close to our post-World War II levels we had in our country. And I think we’re going to blow through it. I think we’re going to be at 160-170 percent debt-to-GDP. 

Japan has a 250-260 percent debt-to-GDP. And they have zero percent interest rates. They’ve had zero percent inflation. The problem is not high interest rates and high inflation. The problem is they’ve had no growth. They had low, no, or slow growth for 30 years.

Now, we are not Japan. We have a better demography. We have a better population. We have more productivity from our population. However, on the margin, I think America is going to a place where we will underproduce our own capacity for a very long time and I do not like that for my kids or for my future grandkids.

EICHER: OK, so it’s interesting. We used to talk about government programs in the billions, even hundreds of billions. And it was only after you added them all up that you were talking about trillions. 

Now, it seems when we talk about government programs we start in the trillions that we’ll add up to—what?—quadrillions at some point if we keep going.

And so with the infrastructure bill we’re starting to hear about, of course we’re hearing a number with a T in it, not a B in it: $3 trillion. 

Can you talk before we go today about anything at all, David, that might be positive about an infrastructure bill? What would be a good sign that you’d be looking for?

BAHNSEN: Well, again, taking out the fact that we’re doing this with $27 trillion in debt and with over a trillion dollar annual budget deficits, I do believe that — all things being equal — that if the government’s going to spend a trillion dollars on something, I prefer they spend it on rebuilding Laguardia Airport than on giving $1,400 to people who make $100 grand a year. 

And so if there is money that is productively spent in broadband and hard asset repair that produces a useful life out of the asset that then feeds the needs of the country, I think that’s legitimate. That wouldn’t cost $3 trillion. And, by the way, in fairness that $3 trillion we’re talking about is over 10 years, unlike the COVID number which was this huge hit all at once. 

But the devil’s going to be in the details, Nick, and so we have to both see the details of what they want to go about spending and how they want to spend it. The Obama stimulus bill proved to be an almost entirely wasted amount of money as it was really a payback to a lot of municipal employee unions that were political allies of the Obama administration. I don’t think an infrastructure bill has to be entirely wasted. But I do think it largely will be.

EICHER: Alright. We’ll leave it there. David Bahnsen, financial analyst and advisor. Always great to talk with you. Safe travels and thank you very much.

BAHNSEN: Thanks for having me, Nick.

NICK EICHER, HOST: Next up on The World and Everything in It: The WORLD History Book. Today, simple pleasures: game night, a refreshing soda, and the open road. Here’s senior correspondent Katie Gaultney.

SONG: KING OF THE ROAD BY ROGER MILLER 

KATIE GAULTNEY, SENIOR CORRESPONDENT: Ah, the highway. Nothing like the freedom of a road trip, whether by car, or—as it happened 215 years ago—by horse and wagon. On March 29th, 1806, Thomas Jefferson’s Congress authorized the construction of the Great National Pike, better known as the Cumberland Road. It took 26 years to build. When completed, the road became the first United States federal highway. 

Historian Hilary Miller spoke to CSPAN about the National Road back in 2017.

MILLER: This type of project was necessary because in the years following the American Revolution, there was a major disconnect between people living along the Western frontier and those in more established cities on the East Coast.

U.S. politicians feared that disconnect would create hostility toward the federal government on the part of Western settlers. And they suspected it would limit trade opportunities. So Congress appropriated $30,000 to create the 620-mile road that would connect the Potomac and Ohio Rivers. Planners envisioned it also becoming a main transport path to the West for thousands of settlers in this country that had only won its independence 30 years prior. 

Congress succeeded in its goal: the road was hugely popular. Historians estimate more than 200,000 people used the road annually by the 1840s. But, with the Industrial Revolution in full swing, the road eventually lost its luster. Miller explains.

MILLER: Of course, technology is going to catch up with us, and by the early 1850s, the railroads have been built to the Ohio River, which is pretty much making the National Road obsolete at that time as travelers are finding it to be faster, less expensive, and much more comfortable to take a train than it is to go over the mountains on the National Road. 

But in the early 20th century, the automobile brought the National Road back into the spotlight. It became a part of the U.S. Highway system and was renamed U.S. 40. Some of the original bridges and taverns, among other tourist spots, are now listed on the National Register of Historic Places. 

SONG: KING OF THE ROAD BY ROGER MILLER 

And from the thrill of the open road to the simple joy of a classic refresher. 

AUDIO: [CAN OPENING AND SODA POURING]

Of course, even now, it takes a lot to get Coke from the factory to a can to your fridge. But it wouldn’t have happened at all without the efforts of John Pemberton, who brewed the first batch of Coca-Cola in his Georgia backyard 135 years ago, on March 29th, 1886. 

SONG: I’D LIKE TO BUY THE WORLD A COKE (INSTRUMENTAL COVER)

The biochemist fought in the Civil War, where he suffered a stab wound. During his recovery, he became addicted to morphine. To overcome his addiction, he began tinkering with various tinctures, ultimately coming up with the recipe that would become Coca-Cola. The first iteration, though, was alcoholic. The temperance movement at the time prompted him to make a non-alcoholic version. Somehow, though, the small amount of cocaine derived from the coca bush stayed in the recipe until 1929. 

Pemberton claimed his soda water concoction would relieve headaches, exhaustion, and anxiety. He sold the company shortly before his death for $1750; about $47,000 adjusted to today’s dollars. In 2020, Coca-Cola’s value was $84 billion. 

And for our last entry today, I’ll tip my hat to World Journalism Institute grad Harrison Watters, who pointed out a fun anniversary for board game enthusiasts. Milton Bradley patented his “Checkered Game of Life” 155 years ago, on April 3, 1866. 

SONG:  ALWAYS LOOK ON THE BRIGHT SIDE OF LIFE BY MONTY PYTHON

The game had already been around for a few years by the time Bradley filed that patent, securing his fortune. He first introduced it in 1860, and the miniature version was a hit with Civil War soldiers. Within a year, Bradley sold 45,000 copies.

It was rooted in traditional morals as players advance toward old age. Unlike later iterations of the game, Bradley’s original version had dire consequences for bad choices, like gambling or idleness—consequences like poverty, ruin, and even suicide. On the flip side, players earned points for virtues like honesty, perseverance, and industry. 

Perhaps a sign of the times: When The Milton Bradley Company reintroduced the game in 1960, amassing a fortune became the new goal, versus Bradley’s original vision of demonstrating virtues.  

AUDIO: LIFE COMMERCIAL 

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

NICK EICHER, HOST: Tomorrow: Green-energy policy. 

We’ll tell you about President Biden’s plans to promote alternatives to fossil fuel.

That and more tomorrow. 

I’m Nick Eicher.

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

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