The World and Everything in It - May 9, 2022

MARY REICHARD, HOST: Well, good morning!

The business of the Supreme Court continues despite the leak scandal. Today, argument over immigration policy.

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

Also today—another educator favorite—the Monday Moneybeat. Today, I’ll talk to David Bahnsen about the wild swings in the stock market following the Fed decision to hike up interest rates and try to tame inflation.

Plus the WORLD History Book. Sixty year honoring those who risked their lives to save Jews during the holocaust.

REICHARD: It’s Monday, May 9th. 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 news. Here’s Kent Covington.

KENT COVINGTON, NEWS ANCHOR: Biden meets with Zelenskyy, G7, announce new sanctions » First lady Jill Biden paid an unannounced visit to Western Ukraine on Sunday, where she met with Ukraine’s first lady..

BIDEN: Hello, nice to see you …

She presented a bouquet of Mother’s Day flowers to Olena Zelenska, the wife of President Volodymyr Zelenskyy.

BIDEN: It’s important to share with the Ukrainian people that this war has to stop. And the people of the United States stand with the people of Ukraine.

The first lady became the latest high-profile American to enter Ukraine during the war. It came days after House Speaker Nancy Pelosi led a delegation of lawmakers to the capital of Kyiv.

Russia bombs school killing dozens in Eastern Ukraine » Meanwhile, Russia continues its bombardment in Eastern Ukraine, including the bombing of a school in Zaporizhzhia where nearly 100 civilians were taking shelter.

It’s unclear how many people died in the bombing, but officials say that number will likely top 60.

Ukrainian Ambassador to the U.S. Oksana Markarova told CBS’ Face the Nation…

MARKAROVA: We can count that Putin and imperialistic Russia will do everything bad they can possibly try to do. The question is, are we all prepared, the civilized world, to do everything possible to defend our democracy and freedom.

U.S. announced new sanctions against Russia » Also on Sunday, the United States announced new sanctions against Russia.

The penalties include cutting off Western advertising from Russia’s three biggest television stations and more restrictions on Russia’s industrial sector. They will also ban U.S. accounting and consulting firms from providing services to any Russian.

The Biden administration also says the G7 — a group of the world’s top industrialized powers has committed to phasing out or banning the import of Russian oil.

Russia today will hold its annual Victory Day celebration, marking the defeat of Nazi Germany in 1945. Some believe Vladimir Putin might declare victory in Ukraine today. Other top officials say he might issue a formal declaration of war during the event.

Pro-abortion activists protest at homes of Supreme Court justices » AUDIO: [Protests]

Roughly 100 pro-abortion activists showed up at the house of two Supreme Court justices over the weekend in the Washington D.C. area.

PROTEST: We will not go back. We will not go back. 

They marched to the homes of Justice Brett Kavanaugh and Chief Justice John Roberts. That despite the fact that Roberts is not believed to be on board with reversing Roe v. Wade.

The neighborhood protests came after someone published the home addresses of conservative justices online. That in response to a leaked draft ruling that would overturn the 1973 decision.

Those protests came a day after Justice Clarence Thomas declared that mob rule will not inform the court’s decisions.

Thomas told a judicial conference in Atlanta—quote—“We can’t be an institution that can be bullied into giving you just the outcomes you want.”

Fire at Wisconsin pro-life office investigated as arson » Meantime in Madison, Wisconsin, police are investigating suspected arson at the headquarters of a pro-life group. WORLD’s Josh Schumacher has more.

JOSH SCHUMACHER, REPORTER: Firefighters arrived at the headquarters of Wisconsin Family Action to find a message spray painted on the side of the building. It read, “If abortions aren’t safe then you aren’t either.”

Madison police spokeswoman Stephanie Fryer said the fire was reported shortly after 6 a.m. Sunday morning. No one was injured in the fire.

The president of Wisconsin Family Action Julaine Appling said she considers the fire a—quote—“direct threat against us.” She added, "This is the manifestation of the anger and the lack of tolerance from the pro-abortion people toward those of us who are pro-life.”

Reporting for WORLD, I’m Josh Schumacher.

Dr. Strange dominates the weekend box office » At the box office, Doctor Strange in the Multiverse of Madness dominated with a huge opening weekend.

TRAILER: I did what I had to do to protect our world. You cannot control everything, Strange.

The latest Marvel blockbuster hauled in around $195 million for the weekend. That made it the second-biggest opening of the pandemic era, trailing only Spider-Man: No Way Home.

The animated adventure The Bad Guys finished second with another $58 million.

I’m Kent Covington. Straight ahead: immigration policy at the Supreme Court.

Plus, something that’s ahead but not immediately straight ahead.

This is The World and Everything in It.

MARY REICHARD, HOST: It’s Monday, May 9th, 2022. This is The World and Everything in It and we’re so glad you are along with us today. Good morning! I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. It’s time for Legal Docket.

The law and culture are preoccupied with the leak of a draft opinion written in February that overturns the abortion-on-demand regime in all 50 states known as Roe versus Wade.

About the unprecedented leak, perhaps Amy Howe at SCOTUSblog put it most succinctly: “It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak,” she says, “is the gravest, most unforgivable sin.”

REICHARD: “Most” unforgivable sin is superlative, of course. Yet despite the betrayal by someone within the court, followed pretty predictably by the organized protests, the business of the court goes on.

One final and unanimous opinion handed down last week found that the city of Boston acted unconstitutionally. That, when a city official rejected a Christian flag to fly at city hall as part of its flag-raising program.

That official rubber-stamped applications to fly all the other flags presented to him, including gay Pride Flags and the flags of communist countries. But the official thought it would violate the Establishment Clause to fly a flag with a cross on it.

EICHER: Justice Brett Kavanaugh identified the problem back in January during oral argument:

KAVANAUGH: And it seems like we’ve had case after case after case that has tried to correct that misimpression of the Establishment Clause, and that seems to me what the root cause is here.

The opinion corrects that misimpression, clarifying that the city was not meaningfully involved in the flag-selection process. Therefore, the flags raised are private speech, not government speech, and the city may not exclude private speech based on religious viewpoint.

REICHARD: Alright. Moving on, today we analyze a case argued in April.

It arises out of the mess at the southern border of the United States.

Frustrations are high, especially in communities closer to the border. This local news report out of San Antonio from last fall has been fairly typical.

KENS5-TV: DBS Ltn. Chris Olivaris: Some of the landowners were voicing concerns that illegal immigrants were trespassing on their property, damaging their fences. They didn’t feel safe around their homes. ANCHOR: Olivaris said they’ve arrested convicted felons and criminal gang members, including MS-13.

Frustration with the trespassers, frustration with the U.S. government, which fails to defend the border.

The U.S. Constitution says in Article IV, Section 4: “The United States shall guarantee to every State in this Union a Republican form of government, and shall protect each of them from Invasion…”

EICHER: To Americans left to defend themselves, it has the feel of an invasion. One that’s gone on for decades.

It was during the Clinton administration that Congress passed the Migrant Protection Protocols. You’ve likely heard it as the “Remain in Mexico” policy.

That law aimed to fix part of the problem: false asylum claims. Migrants knew U.S. officials would release them into the country pending legal resolution of their claims, and that could take years ultimately to sort out.

So, the Remain in Mexico policy required some asylum seekers to spend the sorting-out years in Mexico.

REICHARD: But the law wasn’t much used until the Trump administration.

And it was effective. The Department of Homeland Security called Remain in Mexico an indispensable tool. Fewer people tried to come in the first place. The government released fewer people into the country. Total border apprehensions decreased by almost two-thirds!

EICHER: But President Biden suspended the Remain in Mexico policy on his first day in office, along with other Trump-era immigration changes. Here he is in February last year.

BIDEN: And the third order I'm going to be signing orders a full review of the previous administration's harmful and counterproductive immigration policies, basically across the board.

REICHARD: “Harmful and counterproductive” policies, depending upon your viewpoint. When President Biden sought to officially end the policy last summer, Texas and Missouri sued to keep it.

They argue the Immigration and Nationality Act that contains the policy explicitly requires those defined under law as illegal aliens to be detained or sent to a bordering nation pending resolution. The states rely on the policy, yet the Biden administration didn’t even consider that. Nor did it abide by the Administrative Procedures Act.

EICHER: The dispute ping ponged around the lower courts.

Now it’s at the Supreme Court.

At oral argument, Solicitor General Elizabeth Prelogar argued on behalf of the president.

Do note: The lawyers refer to Remain in Mexico by the technical name MPP. So when you hear Prelogar say “MPP,” you know she means Migrant Protection Protocols.

PRELOGAR: The Secretary of Homeland Security exercised his statutory discretion to make a policy judgment. He found that the benefits of MPP were outweighed by its domestic, humanitarian, and foreign policy costs. Yet the lower courts ordered DHS to reinstate MPP in perpetuity, requiring ongoing negotiations with Mexico to send thousands of noncitizens into its territory. That was error.

REICHER: Courts just shouldn’t be meddling in foreign relations, she argued.

Prelogar noted the massive numbers: in March of this year, more than 220,000 migrants arrived at the southern border. That’s just in one month.

And the United States only has about 30,000 beds to accommodate them. Prelogar argued that’s why rescinding the Remain in Mexico policy makes sense:

PRELOGAR: And it makes sense because, in a world where we don't have sufficient beds, as everyone acknowledges, there is a imperative public interest in ensuring that we are detaining the people who might be criminals or who might abscond or who threaten our national security and not simply filling those beds on a first come basis with no accounting for the limited detention capacity.

That may be, but the Chief Justice seemed flummoxed:

ROBERTS: If you have a situation where you're stuck because there's no way you can comply with the law and deal with the problem there, I guess I'm just wondering why that's our problem? Our problem is to say what the law is. And if you're in a position where you say, well, we can't do anything about it, what do we do?

Prelogar directed the justices to a simple solution: Just say the lower courts were wrong to rule against the order to rescind that policy.

On the other side arguing for the states, Texas Solicitor General Judd Stone. The law’s the law: either detain migrants or send them back to Mexico to wait. And if there’s no money to detain them, then the only option is return to Mexico.

Stone argued this is within the realm of lower courts, as a procedural question. No foreign policy involvement or negotiation needed.

Justice Elena Kagan stopped him right there:

KAGAN: …what do you mean it doesn't require negotiation with the foreign power? What are we supposed to do? Just drive truckloads of people into Mexico and leave them without negotiating with Mexico?

Stone for the states returned to the policy: it must be continued in good faith. If Mexico obstructs it, then the government can ask the lower courts for help.

You can hear several layers of tension: policy implications, separation of powers, the words of the law, and practicalities on the ground.

Justice Brett Kavanaugh closely questioned Prelogar about the policy first enacted in 1996 under President Clinton. [His use of the word “parole” in the context of immigration means letting certain people enter the country and temporarily stay without a visa. That permission is discretionary and assessed case by case.]

KAVANAUGH: Is there any indication in connection with the '96 Act that anyone in Congress expected that if there was not sufficient detention capacity, that hundreds of thousands of people would be just paroled into the United States without being lawfully admitted? Did anyone say that in Congress?

PRELOGAR: I don't think that there was express history on that point…

…No express history, but Prelogar said Congress was focused on detention practices in 1996, not sending people back to Mexico.

Justice Samuel Alito pointed out the plain phrasing in the law. It says aliens “shall be detained.”

Prelogar nuanced that phrase:

PRELOGAR: What "shall be detained" means is that Congress expected us to use the detention capacity that we have. And that's what we're doing. DHS detains tens of thousands of individuals on any given day. Respondents' interpretation that would remove any discretion would mean that DHS can't take account of that limited capacity in making prioritization decisions.

Lots of back and forth on parts of the law that say “shall” and other parts that say “may.”

Justice Alito pointed out past cases when the government argued the opposite meaning of those words from what it now argues.

And Chief Justice Roberts noticed something else:

ROBERTS: General, your interpretation of the statute, I think, is entirely manipulable so you can have a phrase in the statute mean what you want it to mean to accommodate as many people at the border by releasing them as—as you want, right? There is no limit, as you read the statute, to the number of people that you can release into the United States, right?

PRELOGAR: Congress did not create a limit in that statute, but, of course, it's Congress itself that's making these appropriations decisions about how much bed space to give us.

President Biden’s termination memo last fall cited a “significant public benefit” to rescinding the Return to Mexico policy.

Justice Kavanaugh asked about that “public” aspect.

KAVANAUGH: Is that the American public? Is that the non-citizen public? Who is that? And if it's the American public, there's no real explanation of how the public is benefitted by more people coming into the United States who are not lawfully admitted into the United States rather than trying, if feasible, for some of those people to remain in Mexico.

I don’t want to leave the impression that a majority of justices leaned one way or the other.

Listen to Chief Justice Roberts followed by Justice Kagan:

ROBERTS: I think it's a bit much for Texas to substitute itself for the Secretary and say that you may want to terminate this, but you have to keep it…

KAGAN: I mean, it puts Mexico in a position vis-à-vis the United States which I don't think it's really Texas's position to require.

Not long after oral argument, the court ordered the parties to submit more briefs on whether it even has jurisdiction over this controversy.

Still, it’s hard to deny the logic of the 5th Circuit with its withering opinion, quoting here:

“DHS claims the power to implement a massive policy reversal—affecting billions of dollars and countless people—simply by typing out a new Word document and posting it on the internet. No input from Congress, no ordinary rulemaking procedures, and no judicial review…. DHS has come nowhere close to shouldering its heavy burden to show that it can make law in a vacuum….”

It’s the job of Congress to make the law or change it. It’s up to the Executive branch to carry out and enforce the law.

It’s the job of the Court, as the Chief Justice said, to say what the law is. IF it has jurisdiction to do so.

And that’s this week’s Legal Docket.

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

NICK EICHER, HOST: Time now for our regular conversation on business, markets, and the economy. Financial analyst and adviser David Bahnsen is on the line in sunny—and breezy!—southern California. Good morning, David, how you doing?

DAVID BAHNSEN, GUEST: I’m doing great, Nick, good to be with you!

EICHER: Got a note from a friend reminding me about a story that maybe got buried under the avalanche of news the Federal Reserve made with its rate hike and the massive ups and downs in the markets, but this is worth noting: Nonfarm productivity, that’s a measure of hourly output per worker, it plunged at a 7.5 percent annualized rate last quarter. It’s the deepest drop since the third quarter of 1947. In addition, another report showed a record 11.5 million job openings for the month of March, the most recent period for available figures.

That productivity figure, David, was a good bit worse than expected.

BAHNSEN: Yeah, I do think that there's a concern with that number. One of the comments I made, though, that we should make now is that these numbers tend to be very volatile quarter over quarter. And so, especially with COVID dynamics, each quarter, you know, there were certain people coming back to work and certain people leaving and, and lock down things were happening. So you got a lot of quarterly, sort of zigs and zags, and I prefer to watch the data over a couple of successive quarters. But basically, nonfarm productivity on an annualized basis dropped 7.5. So again, that's an important distinction, too, because some people think you've dropped that much in one quarter, that means we're on track to drop 30% on the year. But the number itself is being annualized. And they were expecting it to drop about 5%. But yeah, it means exactly what it sounds like. It means fundamentally, we're getting less productivity out of the workforce. And there's a whole lot of data points that go into that.

And so the continued very high level of unfilled jobs is directly related. And I believe that that data point that also came last week, is a byproduct of the entire issue we've been talking about for some time. And it has not gotten rapidly better. There's certain sectors that have gotten better, but we still have a lot of job openings that are not being filled by people who are available to work. And there's a combination of reasons and categories. But that's the net result in the economy, and it continues to be problematic.

And I would very much like to see that number pick back up.

EICHER: Yeah, both numbers filling those jobs and raising that productivity. Well, I mentioned it a moment ago, the Fed continues clicking up its fed-funds rate, this time 50 basis points versus the 25 last time the open-market committee met. So half a point higher interest rates last week on top of the quarter point previously. But that’s all expected. You’ve been making that point that the Fed’s been signaling this action for a long time.

But the market response was really something: huge rise for stocks day of the announcement followed by a huge drop the day after. David, what do you make of this volatility?

BAHNSEN: Oh, yeah, it was quite a volatile week in the markets. And so I think that there are important lessons for investors and people that have money invested in the market.

But more than that, people just have to understand, much like our talk about recession and the couple of weeks that preceded: the Fed has played a very large role in financial markets for some time. And that cuts both ways, because the Fed is playing a role in assisting markets in some period by adding liquidity and reducing cost of capital. And then inversely, the Fed plays a role in markets when they are taking away liquidity and are increasing cost of capital.

But fundamentally, the issue that matters to the economy is not whether or not the cost of capital was 1% or 2%. It's if there is a higher return on invested capital versus the cost of capital.

And as the Fed works towards seeing that number going negative, basically, why would they want that? Why would they want a higher cost of capital than return on invested capital? Well, that's the way that you sort of extract liquidity and excess from the economy. And it also is fundamentally what brings about a recession, different timelines and so forth. It can be more complicated.

But I think people right now need to understand that as it pertains to markets, there's an uncertainty. And what exactly the Fed will do, and so how do you get the market having its highest up day of the year one day and its biggest down day of the year, the next day? And the way you get that is because there's a lot of market actors that are just very jittery. And there's a lot of uncertainty and it's exacerbated in a period like this.

Now, fundamentally, forgetting the noise and forgetting the kind of day-to-day volatility, fundamentally do I think it's a bad thing or a good thing for the Fed to be raising rates? I don't think there's any debate that it's a good thing.

And yet along the way, certain things that kind of lived by the sword, they really wanted a lot of Fed excess, and the analogy that is used all the time is the Punchbowl: that, you know, the Fed was allowing this party to go on. But then they die by the sword—to mix the metaphors—then as the Punchbowl gets taken away, all of a sudden, the party stops.

My point I made was I'm not sure that that analogy is very good. When you basically have a bad-news event when the Punchbowl is taken away, but it was sort of a bad news-event when the Punchbowl was there, as well. All of a sudden that person at the party is getting too loud and too obnoxious and not really very fun to be around. And I think that's similar to what we had - there were excesses in the market, and those things needed to be purged.

I don't really think it's a great thing when an overpriced stock is getting more overpriced. And that's kind of what was going on. And you can apply the same thing to housing and other risk assets. It's an unsustainable and risky phenomenon in the economy.

So I do continue to believe that the Fed will not go as far forward as some fear. That return on invested capital versus cost of capital, Nick, with Paul Volcker in the 1980s, they inverted the Fed funds rate to the 10-year Treasury by 10 percent. Okay? The inversion was 10 percent. Right now, the 10-year is 2.25 percent higher than the Fed funds rate.

So we're just not even in the same stratosphere of comparison. I think the Fed will continue raising rates and at some point, they'll chicken out. And that's the story that we're sticking to.

EICHER: All right, David Bahnsen, financial analyst and advisor, head of the financial planning firm The Bahnsen Group. You can receive his daily writing at DividendCafe.com. David, thank you, enjoy the warm springtime breeze! Catch you next week! Take care.

BAHNSEN: Sounds good. Thanks so much, Nick.

NICK EICHER, HOST: Today is Monday, May 9th. 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. Sixty years ago, Israel began honoring those they called righteous gentiles, ones who rescued Jews during the Holocaust. Plus, the first female to swim from Cuba to Florida. But first, a Danish actor turned children’s author. Here’s Paul Butler.

PAUL BUTLER, REPORTER: We begin today on May 8th, 1835. A Danish publisher releases Hans Christian Andersen’s first collection of fairy tales in an unbound collection.

AUDIO BOOK: A solider came marching along the high road. Left, right. Left, right. He had his knapsack on his back…

The opening scene from “The Tinderbox”as read by Daniel Fraiser for Librivox.

Hans Christian Anderesen was born to an illiterate washerwoman. But his father could read and introduced Hans to literature as a boy. After his father’s death, Andersen was sent to a local school—where he was abused. He hoped to become a writer, but his teachers discouraged him. So he worked as a tailor and weaver’s apprentice instead.

At 14, he had enough money to move to Copenhagen—with hopes of starting an acting career. He eventually began writing and earned some success, traveling across Europe on his profits. He turned his attention to writing for children in his mid-30s.

AUDIO BOOK: “Help me now, that I may not be hanged,” cried the soldier. And the dogs fell upon the judges and all the councilors; seized one by the legs and another by the nose, and tossed them many feet high in the air, so that as they fell they were dashed into pieces.

Most stories for children at the time were intended as morality tales. Andersen instead hoped to entertain them. Critics weren't amused. They didn’t approve of his informal style and the stories’ lack of moral character.

AUDIO BOOK: “I will not be touched,” said the King. But the largest dog seized him, as well as the Queen, and threw them after the others.

Andersen’s publisher released two more volumes over the next year and a half. Andersen returned to writing novels and even expanded into writing travelogs, but today he is remembered best for the 156 fairy tales he wrote over his lifetime. His works have been translated into more than 125 languages.

AUDIO BOOK: So they placed the soldier in the King’s carriage, and the three dogs ran on in front and cried, “Hurrah!” The princess came out of the copper castle and became Queen, which was very pleasing to her. The wedding festivities lasted a whole week and the dogs sat at the table and stared with all their eyes.

Next, a much more serious anniversary.

On Holocaust Remembrance Day, May 1st, 1962, the Israeli government dedicates The Avenue of the Righteous Among the Nations. The ceremony includes holocaust survivors and the gentiles who protected them planting the first 11 trees on the bare Mount of Remembrance.

Irena Steinfeldt is the former director of the Department for the Righteous Among the Nations at Yad Vashem.

STEINFELDT: The righteous program of Yad Vashem is unique and unprecedented in the sense that I don't know of any other such program, where victims of a terrible tragedy and crime go out set out to search for members of the nations of perpetrators, collaborators, and bystanders, and decorate them with a search for good people, amongst the perpetrators and bystanders.

Today, the avenue, garden, and center honors more than 27,000 men and women who risked their lives to save Jews during the holocaust.

STEINFELDT: There's always the possibility for every single person and even if he is a small farmer, or a little priest, or a schoolteacher, they can make a difference, they can make a difference in the world. And this is what this program proves to us.

And finally, 25 years ago, May 12th, 1997:

NEWSCLIP: Welcome to America!

Australian long distance swimmer Susie Maroney becomes the first woman to swim from Cuba to Florida—after failing the year before.

MARONEY: You know today I'm feeling pretty sore, probably a little bit sorer than yesterday.

She swam the 110 miles in a protective shark cage. The trip took 24 hours and 31 minutes—less than half the time she expected it to take.

MARONEY: I had a strong current behind us and also the wind and we were very fortunate…and that's what it's like in the gulf stream—you can have just unbelievable fast currents and we were very lucky even though it was choppy...

Maroney’s attempt 11 months earlier stopped just 12 miles short due to seasickness—and dehydration.

In a 2009 interview she told the Life Changing Experiment program that the key to success in life is perseverance and a willingness to do what others won’t:

MARONEY: I was never the fastest swimmer. If I had stayed in my sport, I would have never made it to the Olympics because I wasn’t fast enough. But I thought to myself, if I hang in there long enough, no one else will do what I’m doing, so I win in the end! [LAUGHTER]

That’s this week’s WORLD History Book. I’m Paul Butler.

NICK EICHER, HOST: Tomorrow: NATO membership. We’ll tell you why Sweden and Norway want to join the alliance.

And, military moves in Ukraine. We’ll get an update on the effort to beat back the Russian invasion.

That and more tomorrow.

I’m Nick Eicher.

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

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