The World and Everything in It - November 1, 2021

MARY REICHARD, HOST: Good morning!

The U.S. Supreme Court tries to figure out when one crime ends and another begins for the purposes of a law that adds prison time for possessing a gun.

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

Also today the Monday Moneybeat: The government’s third-quarter GDP report is out and economist David Bahnsen will analyze in depth.

Plus the WORLD History Book. Today, a population milestone.

REICHARD: It’s Monday, November the 1st! 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 for the news now with Kent Covington.

KENT COVINGTON, NEWS ANCHOR: U.S., EU say deal on steel tariffs will help on climate change » President Biden touted a new U.S. and European Union trade agreement on Sunday. Biden said the deal will crack down on “dirty steel” that produces carbon emissions. He also said the deal will patch up a trans-Atlantic rift over Trump-era steel and aluminum tariffs.

BIDEN: It immediately removes tariffs on the European Union on a range of U.S. products and lowers costs to American consumers. It ensures a strong and competitive U.S. steel industry for decades to come and creates good-paying union jobs at home.

The Biden administration says the Article 232 tariffs, as they are known, won’t be removed entirely. But the U.S. government will allow some quantity of European steel and aluminum to enter the country tariff-free.

European Commission President Ursula von der Leyen joined President Biden during a news conference at the Group of 20—or G20—summit. She told reporters…

LEYEN: This marks a milestone in the renewed EU-U.S. partnership. And it is a global first in our efforts to achieve the decarbonization of the global steel production and trade.

President Biden is also scheduled to attend a major U.N. climate conference this week in Glasgow, Scotland.

American Airlines cancels hundreds of weekend flights » American Airlines has canceled more than 1,600 flights over the past three days, citing weather and a shortage of flight attendants.

By early afternoon Sunday, American had canceled more than 800 flights—almost 30 percent of its schedule for the day. That after the airline scrapped nearly 900 flights on Friday and Saturday, according to tracking service FlightAware.

American Airlines says it expects major improvement starting today, but added that it expects “some residual impact from the weekend.”

Earlier in October, Southwest Airlines canceled well over 2,000 flights after disruptions also caused by weather and staffing shortages.

Alec Baldwin speaks out on fatal movie set shooting » Alec Baldwin has spoken publicly for the first time on camera about an accidental shooting on a movie set last week.

The actor fatally shot cinematographer Halyna Hutchins when a gun that was supposed to be loaded only with blanks instead fired a live round.

Baldwin called Hutchins a friend and said he is in “constant contact” with her grieving family.

BALDWIN: There are incidental accidents on film sets from time to time, but nothing like this. This is a one in a trillion episode.

The accident occurred near Santa Fe, New Mexico while filming a Western called Rust.

Investigators said there was “some complacency” in how weapons were handled on the set. But it's too soon to speak to any potential charges against those responsible for gun safety on the set.

I’m Kent Covington. Straight ahead: the Supreme Court prepares to hear a major aboriton case.

Plus, the birth of an iconic American carmaker.

This is The World and Everything in It.

NICK EICHER, HOST: It’s The World and Everything in It for the first day of November, 2021. We’re so glad you’ve joined us today. Good morning! I’m Nick Eicher.

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

Today, the Supreme Court hears two abortion-related oral arguments. Just a few weeks ago, these weren’t even on the calendar—that’s how quickly these have come. The court expedited the cases, yet decided not to place a temporary block on the law under challenge.

EICHER: Just to be clear: do not confuse these arguments with the pivotal abortion case this term out of Mississippi. That one is known as Dobbs v Jackson Women’s Health Organization. And the court is set to hear oral arguments in Dobbs on December 1st—a month from today.

REICHARD: It is. The cases argued today are disputes over procedure. They don’t directly confront Roe v Wade.

Case one is about the way the state legislature in Texas structured the law. Instead of the usual enforcement by officials from the state, the law places enforcement power into the hands of private citizens. Anyone can sue anyone else who aids and abets abortion after 6 weeks’ gestation.

Case two asks whether the government has standing to bring the lawsuit in the first place. “Standing” is an important legal concept—really the threshold legal concept—because it means the right to bring the litigation in the first place.

I’ll cover those arguments next week.

EICHER: Alright. Well, on to three oral arguments heard last month, and one of those also deals with the procedural aspect of an abortion law.

The case out of Kentucky asks: who can defend a state abortion law after an appeals court invalidates a state abortion law?

REICHARD: Here are the facts—and we’re talking abortion here, so a warning is in order. I’m sorry to have to go into detail, but it’s pertinent to the legal argument. So I’ll pause a moment so you can hit pause if you feel you need to.

Alright, three years ago, Kentucky criminalized the most common abortion procedure used in the second trimester. The method is called dilation and evacuation. That’s really cleaned up. What it means is—again, my apologies for having to say this—what it means is, the dismembering of an unborn child, while he or she is still alive. Kentucky law required that the unborn child be killed prior to being dismembered, literally pulled limb from limb.

EICHER: An abortion business filed a challenge to this law on the grounds that it amounted to an unconstitutional burden on a woman’s access to abortion.

Lower courts agreed that it was and invalidated the law.

At that point in the litigation, appeal to the U.S. Supreme Court was an option. But the state’s health secretary who’d defended the law in the lower courts decided that he would not file that appeal. That person is a Democrat.

REICHARD: But a Republican state official wants to step in and make the appeal: Kentucky’s Attorney General, Daniel Cameron.

Chief Justice John Roberts found an obvious conflict in this case, and he pointed it out to the lawyer for the abortion business, Alexa Kolbi-Molinas.

ROBERTS: You don’t want the state speaking through two different voices.

Kolbi-Molinas pounded on the need to follow procedure. She said Attorney General Cameron failed in that:

KOLBI-MOLINAS: ...he had a right to appeal, but he had to do so within the 30-day timeframe set by statute. He cannot now avoid his jurisdictional failure by seeking to intervene instead.

Intervene, meaning to obtain a court’s permission to enter into the lawsuit that’s already started between other named parties.

On the other side, Attorney General Cameron’s lawyer Matthew Kuhn. He pointed out practicalities:

KUHN: Two days after learning that another state official had stopped defending Kentucky’s House Bill 454, the attorney general moved to intervene so that the commonwealth could exhaust all appeals in defense of its law. This court’s case law instructs that acting for a state is a distinct capacity. Because everyone agrees that the attorney general did not participate in that capacity in district court, he is not jurisdictionally barred from doing so now.

You can hear how I think most justices are leaning in this from Justice Stephen Breyer:

BREYER: Look, there have been a lot of party changes. First, the Republicans are in, then the Democrats are in, and they have different views on an abortion statute. And so, if there’s no prejudice to anybody, and I can’t see where there is, why can’t he just come in and defend the law? If Kentucky law allows him to make the argument, why can’t he make the argument?

I think it’s likely Cameron will get his day in court to defend the abortion law.

Okay, on to case two. This deals with the meaning of a single word found within the federal law known as the Armed Career Criminal Act.

That law adds years to the sentence of a felon with three prior convictions who is found in possession of a firearm. It’s a separate crime.

The questionable language in this case is about those prior convictions. Offenses “committed on occasions different from one another…”

Justice Samuel Alito lays out the problem:

ALITO: This seems to me to be a nearly impossible question of statutory interpretation because the term ‘occasion’ does not have a very precise meaning.

First, the facts: One night nearly 25 years ago in Georgia, William Wooden broke into a storage facility and stole items from ten separate storage units.

He got caught and pleaded guilty to ten counts of burglary.

Years later, a law enforcement officer observed that Wooden had a rifle in his home. A no-no for a man with more than three felony convictions.

For that, Wooden received a federal indictment as a felon in possession of a firearm. The lower courts found that Wooden did qualify as an armed career criminal under that federal law. So he received several additional years in prison as a result.

But Wooden now argues that those 10 burglaries he pleaded guilty to? Those should only count as one crime, for purposes of the Armed Career Criminal Act.

You’d think this detail would be worked out by now. But no! The circuits are split on how to divide up crimes like this one. That’s why the Supreme Court took the case.

The justices came up with creative hypotheticals to figure out where one crime ends and the next one begins.

Listen to three of them, from Justices Alito, Elena Kagan, and Stephen Breyer in turn:

ALITO: A street light goes out, and a mugger says: Aha, this is a criminal opportunity, I can now mug people who walk by here at night. And he -- and that person does that at 10:00 at night, 11:00 at night, midnight. Is that one criminal opportunity or three?

BREYER: Jesse James gets on the train and he goes to one person and then the next person and then the next person and takes their stuff. 

ROSS: In the next car, and the next car, and the next car. 

BREYER: Correct. Moreover, you’re going to put him in jail for 15 years, where maybe he deserves it, but his cousin Harry James only robbed one car in one train once, but there were four people in it. And then he gave up his life of crime.

BREYER: Suppose that there was a crime boss and he was a good multitasking crime boss, and he had a few phones in front of him, he's sitting in his office one day, and on one phone he's arranging a sale of illegal drugs and on another phone he's ordering the killing of a competing crime boss and on another phone he's involved in an illegal gambling operation, and they're all going on very close in time to each other. Single occasion or three occasions?

Wooden’s lawyer argued the court should just follow plain English. Remember, the law says crimes “committed on occasions different from each other.” So, he argued the court should make the government show the crimes are different from each other. Enough to justify saying Wooden did ten crimes instead of just one. Here, burglarizing the same storage facility on the same night is one occasion.

I discerned no clear-cut principle arising from the argument.

Justice Kagan put it this way to Wooden’s lawyer:

KAGAN: That this is a very loosey-goosey test, you know, that it’s an all things considered, totality of the circumstances. We don’t even really quite know what we’re supposed to look at to decide whether something is an occasion or, take your synonym, an episode.

Wooden is set to be released in 2028; if not for that minimum mandatory sentence, he’d have been released in 2016.

The Armed Career Criminal Act confounds the court every year, and there’s no end in sight. Congress ought to fix it.

OK, quick treatment of our final case today. It’s about pension payments.

David Babcock worked as a federal civilian employee at the same time he was part of the National Guard as an enlisted soldier. So he earned civilian pay and paid social security taxes. And he also participated in the Civil Service Retirement System. That’s a public pension fund that provides benefits for most civilian employees in the federal government.

The legal question is how to figure his pension payment. And that hinges on what the phrase “uniformed service” means under the Social Security Act.

The courts need legal clarity here, as thousands of people are affected by how the government interprets this special rule under the Social Security Act.

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: Financial analyst and adviser David Bahnsen joins us now for our weekly conversation and commentary on business, markets, and the economy. David, good morning.

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

EICHER: The government released the quarter-three economic growth report—in the form of Gross Domestic Product—the economic report card for July, August, and September takes a good month to count it all up. But on Friday, we did get to read the Q3 GDP and the figure is two percent growth—what’s to say about that? Was it in line with what you expected?

BAHNSEN: No, there's three things to say. It's not what I expected, I expected it to be higher, that is not the quarterly move. But that's how we say it. It's the quarterly move, annualized. And it is the real number, not the nominal number, meaning it is net of inflation. So the nominal number was actually much higher. But we generally want to talk about these things consistently. So we're always looking at apples to apples comparisons. And it can be tricky. Sometimes you recall, the third quarter of last year, when people were referring to this huge GDP increase. And of course, that was also a quarterly move that was being annualized. And it was the recovery coming out of the lockdowns. And similarly, the second quarter move was this just violent drop. And again, the annualization of moves that have a really big quarterly event can kind of misstate it. Now, the numbers of the numbers, I'm just saying, we can sometimes extract a lesson that may not necessarily be there. So I do believe that this number should have been and would have been higher. You already know my opinion’s that the delta variant’s impact on GDP growth, as well as most economic metrics is massively overstated and overthought. I don't see any anecdotal or empirical evidence that delta was a major impact. It obviously was a marginal one. But effectively, I think that there's a significant part of economic activity that is not taking place that otherwise would be taking place, if it were not for the labor shortages, the labor distortions that took place in the third, second and third quarters, and of course, supply chain disruptions. And so across the board, I think all those things are impacting economic growth. And then you look to the ingredients of why GDP growth was less than expected, and the impact is not primarily at the consumer level, and is primarily at non-residential fixed investment, which is a fancy term for business investment. And that business investment number was muted, I believe in the supply chain disruption, anticipation of what was going to be happening at a tax code changes. And still the sort of uncertainty that lingers as to what business confidence is going to be on the other side of COVID.

EICHER: Looking at a GDP growth chart, over time, long time, there’s a trajectory and it’s basically up—with recession dips and recovery spikes. But the COVID dip and spike you can see from space—a very pronounced “V”—deep drop, dramatic rise.

The big question was when do we get back on the trendline, and my memory is that you were thinking probably 2022 when we’re back on trendline, so you think this is all still on schedule?

BAHNSEN: It is, but it's subject to interruption, and it's subject to acceleration, right? There's things that could outperform on the upside, and there's things that could underperform. And it's very interesting, because you look to the real GDP number. And we've recovered what was contracted, but we haven't got back to trendline level. And by trendline here, this is important. I mean the post financial crisis trendline. If we're talking about pre-financial crisis, meaning the 50 year trend line, we've been off of that for 13 years. We've averaged - post World War II - 3.1% Real GDP growth. And we haven't had a single year of that number since the financial crisis, which has so much to do with a lot of the economic angst that I think has impacted much of the middle class and even in other countries around the world that have not got back to their trendline growth. But since your question is more specific to the pre and post COVID activity, I do think it's interesting that so many economic metrics have gotten already back to their pre COVID levels, and then some. And yet there are certain ones that are still held back, you know, they maybe have recovered 80 or 90% of their activity, they had been down to 20 to 50% of economic activity. So they've made huge progress. We talk each week about those initial jobless claims. We talk about the unemployment figures. But then, you know, the housing side - things that are not benefiting from low interest rates - those are the things that have not gotten back to full, pre COVID levels. If it's something highly rate sensitive with all of the liquidity and the low cost of capital the Fed has thrown at it, it's already well past its pre COVID levels. And that seems to be the big distinction. And so I think that, yeah, I certainly agree that by this time next year, we would have to have had a major problem to not be back to pre COVID levels economically. But I will candidly say that I think it should be happening much sooner.

EICHER: I’d like to talk about the broader question, David, before we close this up, thinking of the quarterly GDP as a good moment to assess, how do we return to the post-World War II growth rates in the threes? Instead of this blah, blah, 2 percent, sluggish, not spectacular growth?

BAHNSEN: Well, Nick, it's a blessing because we've been getting one. I mean, the eight years of the Obama administration, and I'm not putting this all entirely on Obama policy, I'm just trying to put a timeline to it. We averaged 1.6% Real GDP growth. And that's when you're supposed to get the most violent recovery, because you're coming off of the crash. Most immediate recoveries after recessions average four and 5%, real GDP growth. So a two has actually been, you know, the the highest number we got was in 2018, after the Trump tax cuts, and we got to 2.9%. And and we've averaged 2.2%. So I think that right now, a lot of people would be very grateful to get to a trendline of two and a half. And I'm with you, I think you want to see a three handle and when you're coming out of recovery, you want to see a four or five. And we were getting a 5, 6, 7 coming out of COVID. But that was just such an anomaly because of the violence of the downturn. If you'll allow me to answer your bigger question, which is a resumption of real GDP growth, I do not believe we're getting back to real GDP growth that averages the post World War II, pre financial crisis trendline of 3.1%. And the reason I don't believe it is the government debt that has been taken on as a justification for dealing with other economic slowdowns. It's a fascinating thing about the present debt desires of the Democrat Party, that they are not being couched around, ‘The economy needs the help’. They are not being rationalized in a Keynesian context of, ‘ we need to now elevate government spending to help offset some other form of economic weakness’. They're being couched purely on the basis of social benefit. And again, that could be right or it could be wrong, I happen to think it's wrong. Some people could agree or not agree, but my point is, there's not even a pretense that it's to drive economic growth. And I believe that you cannot get to full economic growth when you limit productivity. And I don't believe you can be at full productivity when you don't have full investment. And that's what is limiting investment is excessive government spending, excessive government debt that replaces a significant part of private sector economic contribution.

EICHER: David Bahnsen, financial analyst and adviser. He writes at dividendcafe.com. You can sign up there for his good email newsletter, David, thanks!

BAHNSEN: Thanks so much, Nick.

NICK EICHER, HOST: Today is Monday, November 1st. 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. Today, a population breakthrough, a photography lens view, and a carmaker’s debut. Here’s senior correspondent Katie Gaultney.

KATIE GAULTNEY, SENIOR CORRESPONDENT: Joe Frazier versus Muhammad Ali. The Sharks versus the Jets. Ford versus…

ANNOUNCER: Prescription for travel: The new motoramic Chevrolet. More than a new car, a new concept of low-cost motoring…

That 1955 Chevy commercial showcases a dusty blue, sleek sedan cruising down a mid-century American, tree-lined road. But decades before Chevy carved out a place in Americana, the Chevrolet Motor Company set out to challenge the Ford Motor Company.

While Chevy’s first car, the Series C Classic Six, wasn’t commercially available until 1913, its founders formed the company November 3rd, 1911. The company counted on a battle of the brands, planning to steal market share from the popular Ford Model T.

Louis Chevrolet was a Swiss-born American race car driver-turned-automotive engineer. Pinky Randall is a Chevrolet historian who talked to Discovery about the company’s namesake.

RANDALL: Louis was a natural mechanic. Just a natural. And he got into racing, and he got very popular, and he was good. And he attracted the attention of Billy Durant, the founder of the General Motors Corporation.

But GM fired Durant, so with a few other investors—and Louis—he co-founded the Chevrolet Motor Company in Motor City, Detroit. Ever the marketer, Durant planned to use Louis’ reputation as a racer as the new automobile company’s foundation.

CHEVY COMMERCIAL

By 1929, Chevy had overtaken Ford as the best-selling vehicle in the United States. Today, the two brands’ sales figures are pretty neck-and-neck.

And now we’ll move from a timeless brand to a moment captured in time.

SONG: “Moonlight Sonata,” Beethoven

Eighty years ago, Ansel Adams photographed a moonrise over the town of Hernandez, New Mexico. That image—taken on November 1st, 1941—would become one of the most famous images in photography history.

He titled it Moonrise, Hernandez, New Mexico. It’s a high-contrast photo—the bright white, waxing moon above and slightly to the left of a few buildings, a cemetery in the forefront. Mountains sit at the back of the landscape, with reflective, flat clouds overhead.

The Ansel Adams Gallery created a reenactment of the photographer recalling snapping the striking photo.

GALLERY: We were returning to Santa Fe from a long picture day in the Chama River Valley in Northern New Mexico. I observed a fantastic scene as we approached the village Hernandez. The moon was about two days before full, and the buildings and crosses were illuminated by a gentle, diffuse sunlight, coming through the clouds of a clearing storm.

The scene stunned Adams. He had been traveling with his 8-year-old son and an assistant.

GALLERY: I almost drove my car into a ditch, and emerged in a state of intense excitement, commanding my companions to get my tripod and camera case!

But, he couldn’t find his exposure meter. With some quick thinking, he calculated the moon’s light-per-square-foot and estimated the exposure, creating a single negative before the light changed.

He developed the image in silver gelatin, the most common chemical process for black-and-white photography. It took him more than 30 years to preserve the image to his satisfaction, though. He made 1300 prints of the photo a few years before his death, in 1984, at age 82.

And for our final entry, we’ll move from a sleepy town to the great big world.

SONG: “Wild World,” Cat Steven

The worldwide human population reached 7 billion on October 31st, 2011.

Demographers and earth scientists sounded alarm bells over the milestone at the time. Lester Brown founded the Earth Policy Center. He spoke to the Associated Press in October 2011, predicting an increase in food and water scarcity in developing countries as the population grows.

BROWN: This has been going on for decades. At some point, adding this many people every day, having to produce this much more food every day, begins to stress the earth’s land and water resources, and that’s what we’re seeing.

On the other hand, other data scientists point to increasing longevity as a reason for population growth. And as Swedish physician and academic Hans Rosling pointed out in a video for his Gapminder Foundation, that’s something to celebrate.

ROSLING: People in the past never lived in ecological balance with nature; they died in ecological balance with nature! It was utterly tragic! But with the industrial revolution, this changed. Better wages, more food, tap water, better sanitation, soap, medical advances…

The world had already reached a population of 5 billion on July 11th, 1987. Twelve years later, we were at 6 billion.

SONG: “He’s Got the Whole World In His Hands,” Johnny Cash, Eddie Albert, Linda Ronstadt, Jerry Reed

And we seem to be keeping a pace of adding another billion about every 12 years. Population analysts say we can expect to reach 8 billion in 2023.

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

NICK EICHER, HOST: Tomorrow: pandemic entrepreneurs. We’ll tell you about the people who turned job loss into opportunity.

And, Classic Book of the Month. Emily Whitten joins us with her November recommendation.

That and more tomorrow.

I’m Nick Eicher.

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

The World and Everything in It comes to you from WORLD Radio.

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