The World and Everything in It — November 30, 2020

MARY REICHARD, HOST: Good morning!

An innocent young man is beaten by police. Different aspects of the law block his quest for justice. The Supreme Court considers the matter.

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

Also the Monday Moneybeat: jobs, stocks, and policymakers.

Plus the WORLD History Book. 20 years ago this week, the inauguration of Vicente Fox as President of Mexico.

REICHARD: It’s Monday, November 30th. 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 the news with Kent Covington.

KENT COVINGTON, NEWS ANCHOR: Health officials brace for new wave of coronavirus cases » Health officials are bracing for a wave of new COVID-19 cases in the weeks ahead following holiday gatherings. 

White House Coronavirus Response Coordinator Dr. Deborah Birx said those who gathered for Thanksgiving should get tested within the next week.

BIRX: But you need to assume that you’re infected and not go near your grandparents and aunts and others without a mask. We’re even asking families to mask indoors if they chose to gather over Thanksgiving.

Counties across California are tightening COVID-19 restrictions starting today.

Los Angeles County will impose a lockdown calling for its 10 million residents to stay home.

San Francisco and San Mateo counties moved to the most restrictive purple tier of restrictions. That shuts down places of worship, along with gyms, salons, restaurant dining rooms, and other businesses. 

Penn. high court tosses election lawsuit » Pennsylvania’s supreme court over the weekend threw out a lower court’s order blocking the state from certifying dozens of contests in its November 3rd election.

The lawsuit asserted that the state’s expansive mail-in voting law is unconstitutional. But that law is now a year old, and in a unanimous decision, the court said it’s too late to challenge it. 

Justice David Wecht wrote that the plaintiffs failed to show—quote—“that even a single mail-in ballot was fraudulently cast or counted.”

President-elect Joe Biden defeated President Trump by more than 80,000 votes in Pennsylvania. 

Iran vows retaliation for killing of nuclear scientist » Iran’s supreme leader is vowing—quote—“definitive punishment” of those behind the killing of a scientist who led the country’s military nuclear program. 

Former Navy Admiral William McRaven told ABC’s This Week… 

MCRAVEN: Iran either suspects or knows that Israel was responsible for this attack. And then of course kind of by association, they are going to assume that either collaborated with it or at a minimum were witting of the Israeli’s actions.

Iranian President Hassan Rouhani said Iran “will respond to the assassination … in a proper time.” 

The attack has renewed fears of Iran striking back against the United States, Israel’s closest ally.

The Pentagon has moved the USS Nimitz carrier group back into the region.

Suspected extremists kill at least 40 farmers in Nigeria » Terrorists killed at least 40 rice farmers and fishermen over the weekend in Nigeria in the country’s northern state of Borno. Officials believe the attackers were affiliated with Boko Haram. 

One official said the death toll could rise to about 60 people.

Boko Haram militants often force villagers to pay illegal taxes by taking their livestock or crops. But some villagers have begun to resist the extortion, and the terror group may have carried out the attack in response to that resistance. 

Darth Vader actor Dave Prowse dies » Dave Prowse, the man underneath Darth Vader’s helmet in the original Star Wars trilogy, has died. 

His agent said he died over the weekend after a short illness at the age of 85. 

Though Star Wars audiences never heard his voice, he read all of the lines aloud in each scene during filming…

VADER: You are part of the rebel alliance and a traitor. Take her away! 

But editors later replaced the audio portion of his performance with the more menacing voice of James Earl Jones. 

Prowse won three British weightlifting championships before breaking into movies. He often landed roles that emphasized his commanding size.

Star Wars director George Lucas asked him to audition either for Darth Vader or the Wookie Chewbacca. Prowse chose Vader because—his words—“You always remember the bad guy.”

I’m Kent Covington.

Straight ahead: a challenge to qualified immunity.

Plus, a one-way trip to the Bermuda Triangle.

This is The World and Everything in It.

MARY REICHARD, HOST: It’s Monday morning and welcome to another week of The World and Everything in It. Today is the 30th of November, 2020. 

Good morning to you, I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher.

Well, I know how holidays can get us out of our routines—we are creatures of habit—and so we’ve decided to keep open our listener survey for a little longer than we’d initially planned. If you have a couple of minutes—and that’s really all it takes—why not head over to listenersurvey.org and add your voice? Listenersurvey.org.

REICHARD: It’s time now for Legal Docket. 

But before I get into oral arguments, I’ll mention the really big news just before Thanksgiving Day—moments before midnight Wednesday—in a 5-4 decision, the U.S. Supreme Court ruled in favor of religious liberty. 

With the chief justice now in the minority, the conservative court majority held that the restrictions on religious services New York Governor Andrew Cuomo imposed are likely unconstitutional. 

What that means is that pending an appeal in a lower court, the Supreme Court says New York cannot in the meantime enforce those restrictions.

EICHER: Catholic and Jewish groups sued under their First Amendment right to free exercise of religion.

The courts are supposed to protect these first freedoms with the highest level of judicial review. It’s called strict scrutiny. 

So when the government seeks to infringe these freedoms, the courts apply a two-part test: one, does the government have a compelling reason for what it wants to do? and two, is its action or policy narrowly tailored to accomplish its goal?

REICHARD: I’ll quote directly from the unsigned majority opinion here: 

“Stemming the spread of Covid-19 is unquestionably a compelling interest, but it is hard to see how the challenged regulations can be regarded as narrowly tailored … the Governor has chosen to impose no capacity restrictions on certain businesses he considers essential … hardware stores, acupuncturists, and liquor stores … . Who knew public health would so perfectly align with secular convenience? … Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical.”

EICHER: The four dissenters, including Chief Justice John Roberts, preferred to decide the matter at some later date.

Well, on to today’s oral argument.

ROBERTS: We will hear argument next in Case 19-546, Brownback versus King.

REICHARD: The “King” in that case is James King. He was a 21 year old college student six years ago in Grand Rapids, Michigan.  

One night he was walking to his job, when two men came up to him, asked his name, boxed him in, and grabbed his wallet out of his back pocket. 

King suspected it was a mugging, so he ran. 

But the two men tackled him and beat him. 

A bystander called 911.

EICHER: The men choked King until he lost consciousness; when he came to, he bit the arm of one of the men. 

Which brought about an escalation of the beating.

When police arrived a brief investigation revealed a case of mistaken identity. The two men were undercover FBI agents looking for a suspect in a home-invasion case.

They thought King was that suspect, but they were wrong. 

Because of the beating, King required medical treatment in the hospital.

REICHARD: But then to his consternation, police arrested him on a charge of resisting arrest and assaulting law enforcement! 

He spent some time in jail until his family was able to post the $50,000 bail bond. 

King underwent further hospital treatment for his injuries. 

Prosecutors took the case to trial and a jury acquitted King on all charges.

EICHER: Good news for King, but a criminal trial is quite an ordeal on top of the beating he received despite his innocence.

So he sued. He accused the government of unreasonable seizure and for using excessive force in violation of his constitutional rights.

But King found himself trapped inside a legal labyrinth. 

Federal law, state law, and case law wound a tight knot around his case that he couldn’t unwind. 

The doctrine of qualified immunity meant the agents couldn’t be found liable for their actions, so a federal judge dismissed the case.

REICHARD: But on appeal, the 6th Circuit ruled he could proceed.

The agents appealed that decision to the Supreme Court. 

Their argument is that one of King’s claims fell under the Federal Tort Claims Act. I’ll need to refer to it a lot, so I’ll use the initialism FTCA when I do.

This federal law says that when a lower court renders judgment on an FTCA claim, then that’s it. No one can pursue further claims arising from the same facts, actors, and injury.

In essence, the agents argue King’s already had his one bite at the apple of justice, and that’s all the law allows. 

Their lawyer, assistant to the solicitor general Michael Huston, asked the high court to reverse the 6th Circuit:

HOUSTON: The decision below would permit a plaintiff to bring a lawsuit against the United States, litigate it all the way to summary judgment, lose on the grounds that the government employees did not do what was alleged of them, and then turn around and pursue claims against the same employees using the same factual allegations. That result makes little sense.

But King’s lawyer, Patrick Jaicomo, argued it makes even less sense to interpret the law that way. 

His client never really had his day in court on the merits, namely that he was an innocent man severely beaten by police. The court below dismissed his case on other, non-merit reasons under the FTCA. So he’s not really had his one bite of the judicial apple yet.

This is a tad tricky: the language of that law bars “any action” by reason of the same subject matter against a government employee whose act “gave rise to the claim.” 

The idea is to avoid repeat litigation.

Jaicomo for King laid out an easily understood hypothetical:

JAICOMO: So this gets us back to the distinction between “an action” and “any action.” And it’s simply a situation where someone had the coupon to go to a grocery store that says if you buy a case of pop or soda, as people might call it, you get any case free. Of course, a reasonable person would not understand that coupon to mean the first case was free. You have to buy the first case. The government is, in this case — in this situation, asking the Court to say that the coupon applies to the first case of soda or, in this instance, the first and only action that’s ever been brought.

Chief Justice Roberts focused on the language of the FTCA in this exchange with Huston, lawyer for the agents:

ROBERTS: The statute speaks of ‘actions,’ not ‘claims. And it was and is very well established that there is no bar with respect to claims in the same action. If Congress were going to make such a dramatic departure from that rule, the obvious word to use is right there: It’s ‘claims.’ And yet they didn’t do that.

HUSTON: If I might make two points about that, Your Honor. The first is that, as I just said…

Huston replied that “action” and “claim” are the same things. They’re synonymous. 

Besides, Congress could have specified its intent to bar later lawsuits by saying no “subsequent action.” It did not say that. It just said “any action.” 

And he went further:

HUSTON: Congress found that lawsuits against the government’s employees are extremely burdensome, and it wanted to limit them without precluding them entirely by saying that, if a plaintiff chooses to take advantage of the FTCA cause of action, then the judgment in that action will bring repose to the entire controversy.

“Repose to the entire controversy,” meaning the action ends the matter. 

What happened to King is horrendous, but in this particular legal dispute it all comes down to a nuanced, technical argument: Can King file another lawsuit against the agents arising from the same facts —even though his FTCA claim failed? 

In legal parlance, does the law “preclude” his claim? 

Justice Stephen Breyer pointed out the appeals court judgment dealt with only one aspect of King’s claims, perhaps enabling King to proceed on those other aspects. 

When Huston (lawyer for the agents) said all claims were bundled together in the decision below, Justice Breyer paused:

BREYER: All right. All right. I have enough to see that I have to sit down and figure this out word by word, which I’ll do.

Justice Brett Kavanaugh pointed out something others had also asked about: the arguments in the briefs from both parties differ from what they argued before the justices. 

Justice Kavanaugh to Jaicomo (lawyer for King):

JAICOMO: I want to raise the point that’s bothering me about what we should decide. I don’t blame you for raising the alternative argument. I understand that you’re trying to win the case. But I’m trying to think about why we should consider it. We obviously discuss very carefully our decision whether to grant cert on particular cases in particular issues within that case. We don’t usually decide things that weren’t decided by the court below… 

Jaicomo had a practical answer: the circuits are split, confusion reigns, and there’s no time like the present to resolve all of it.

I couldn’t help but think of King sitting there listening to these esoteric arguments. 

I found this interview of the now 27 year old James King from February by Fox news in Grand Rapids.

KING: I expected them to be arrested and instead I was. So I was, uh, that added to the confusion and chaos of the whole situation. The emotional toll that this took on me is something that’s ongoing. Something I’m still dealing with.

He hopes that qualified immunity is thrown out or revamped so that this won’t keep happening.

KING: The simple fact is that the majority of the time this situation happens to anyone, they have no recourse. Either they accept a plea deal because they don’t have the money to afford attorneys or they’re scared or they’re jailed or killed. And in any of those cases there is no recourse. And as crazy as it sounds, I’m lucky. Because they didn’t shoot me and I’m not in prison right now.

It’s entirely possible the court will issue a narrow decision on the difference between an “action” and a “claim,” or whether the lower court’s dismissal of King’s claim was right or wrong. 

Given the widespread perception that police brutality goes unanswered, though, maybe the court will find opportunity to rule more broadly.

A remand to lower court would allow both sides—police officers included—to make their case.

And that’s 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 advisor David Bahnsen. Hope you had a great Thanksgiving and first Sunday in Advent!

DAVID BAHNSEN, GUEST: Well, same to you, Nick.

EICHER: Well, David, let’s hit jobs real fast. We’ve observed week by week the jobs returning in the sense of continued declines in ongoing unemployment benefits. 

And while enormous, week-by-week the number of new claims has been getting smaller. 

But now two weeks in a row, we’re seeing new claims rising. Are you optimistic or pessimistic?

BAHNSEN: I don’t think it’s really a matter of being optimistic or pessimistic. It’s really just a matter of a very objective assessment that over the last several weeks, for whatever reason, right or wrong—and I happen to think a lot more wrong than right—you have had more restrictions and shutdowns and varying degrees of new rules and constrictions on economic activity from various governors and counties, mayors, and so forth.

So you would expect that it would have some impact into the labor market and it hasn’t had that big of one yet, but it’s had some.

EICHER: Well, the market opens this morning less than 100 points from a milestone it hit last week.

And, obviously, we’ve seen it coming, but let’s think back—way back, pre-Covid—the Dow Jones Industrials were closing in on 30,000 in February of 2020, then came Covid and the shutdowns and the massive plunge in stock prices. Well, now here we are having crossed the 30,000 mark within the year. 

It is symbolic in a way, but substantive, too. What are your thoughts, David, on that achievement?

BAHNSEN: Well, it’s certainly a sentimental milestone. Closing over 30,000 as it did on, on Tuesday of last week is a big deal. 

But here’s one thing I would say: It was 1997—excuse me, 1999—when the Dow hit 10,000. And it was 2017 when it hit 20,000, so there was a 17- or 18-year period to go the next 10,000 points. 

And then it was just three and a half years or so to go from 20,000 to 30,000. The Dow is going to go to 40,000. And I don’t know if that’s in three years, five years. I think it’s going to surprise people how quickly it is.

Now most of this is mathematical. The percentage move required to move another 10,000 points gets lower and lower as the number is higher and higher, obviously. 

But people that used to laugh at this idea are being humbled. The notion that there was some cap to corporate profitability to the capability of companies to be more efficient, to expand not only their profits, but their profit margins, to grow more top-line revenue, to do more innovation.

I think that all people who value the morality of private enterprise, let alone the utility of it, should be cheering the fact that markets can get to these levels, not even in a bubble-like environment. Remember, this is the Dow we’re talking about, not the NASDAQ, the Dow is filled with a lot of old-economy stocks. 

But this is the by-product of the greatest aspect of freedom we have in our country, which is still in commercial enterprise. And so I do believe that it’s something for us to celebrate, and I believe that people should be optimistic about the future. We have a lot of challenges and yet that invisible hand that is so graciously provided for American prosperity, I think is alive and well.

EICHER: Let me ask about politics—in particular the story that former Federal Reserve chairman Janet Yellen is Joe Biden’s choice for Treasury Secretary. 

Yellen was the head of the Fed before her term ended and President Trump selected Jay Powell for that job, and Steve Mnuchin for Treasury. So now Mnuchin’s out, Powell likely stays at the Fed, and so Yellen takes Mnuchin’s seat over at Treasury.

It just seems so much musical chairs here. 

But is it reasonable to conclude that it’s bigger news not so much that it’s Yellen, but that it’s not, as we were hearing, Elizabeth Warren instead?

BAHNSEN: Well, it’s only a reasonable question in the sense that so many people had been throwing out there this idea that he may nominate Elizabeth Warren and it was such a completely ridiculous idea to begin with.

First and foremost, politically, it’s a Republican governor of Massachusetts who was going to appoint her successor. And if anyone believes the Democrats were going to voluntarily give up a Senate seat, they have another thing coming.

But second of all, Joe Biden didn’t owe Elizabeth Warren anything. She didn’t do anything to help him. She stayed in the race to the very last second. She endorsed him after everyone else was already out of the race.

So Elizabeth Warren was never a possibility for treasury secretary. But it made for kind of nice fear-mongering and some of the conservative talk radio and news outlets.

And yet Janet Yellen. I don’t want to say that she’s a moderate. I don’t think that her politics have ever been the front and center of her public profile. She is a center left Democrat, but economically we know exactly what she is. And she is exactly what anyone in the Democratic party would be nominating, which is a center-left, pro-finance Keynesian.

But the significance is this Nick, it’s something that Mnuchin and Powell have created throughout the COVID moment. It goes back to Greenspan and Bob Rubin during the 1990s, and it is what we call an accord between the Fed and the Treasury.

And you can’t really have much more of an accord or a symbiotic relationship than to actually have the former Fed head now be the Treasury head. So it’s a very coordinated monetary and fiscal stimulus that is at the heart of American economic policy now. 

So as far as someone who wishes he could pick the treasury secretary and knows, I can’t, if Joe Biden were going to pick the treasury secretary. And I said this when Obama picked Tim Geithner, if someone like Biden or Obama’s picking the treasury secretary, I just as soon have Janet Yellen as anybody else.

EICHER: Financial analyst and advisor David Bahnsen. David, thanks!

BAHNSEN: Thanks for having me, Nick.

NICK EICHER, HOST: Today is Monday, November 30th. 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. 

I’m certain your email is jammed with tons of discount offers the past few days. But I’d be remiss if I didn’t tell you about this one. It might mean more to you. 

Right now, you can send WORLD to three friends for a total of $99—$33 per. So $99 for a full year of WORLD to three friends. Sound, biblical journalism for the people you care most about. 

You’d be giving them a year of WORLD Magazine, plus full access to digital articles and other online content, in addition to the podcasts we already provide at no cost. So make your way to wng.org/cybermonday to share the news with your loved ones this Christmas.

EICHER: Coming up next, the WORLD History Book. This week, a literary heavyweight, an unsolved aviation mystery, and a democratic achievement in Mexico. Here’s WORLD senior correspondent Katie Gaultney.

AUDIO: [SWORD FIGHTING]

MUSIC: [“ONLY FOUR MEN,” PAUL HASLINGER]

KATIE GAULTNEY, SENIOR CORRESPONDENT: This Saturday marks 150 years since the death of French novelist and playwright Alexandre Dumas. 

Descended from Afro-Caribbean slaves and French nobility, Dumas was as prolific as he was polarizing in his time. While his work was popular, he had a reputation as a spendthrift, quickly squandering every bit of the profit from his plays and books on his lavish lifestyle. Scholars today believe the married Dumas had as many as 40 mistresses. In a case of art imitating life, Dumas’ dalliances may account for the wandering eye of so many of his main characters.  

CAVIEZEL: May I steal your wife?/ I’m sorry?/ For the waltz… 

That’s Jim Caviezel as the Count of Monte Cristo from a 2002 film adaptation. Dumas’ written work has been made into over 200 films. He has also given us some of literature’s most memorable lines, like this one, delivered by Chris O’Donnell as D’Artagnan in the 1993 adaptation of The Three Musketeers: 

O’DONNELL: All for one… and one for all! 

His impact on the arts has made Dumas a favorite son of France. In 2002, the French government moved his remains to the Pantheon in Paris, where Dumas could rest among other luminaries like Voltaire, Rousseau, and Victor Hugo. After an elaborate parade of Dumas’ casket through the streets of Paris, President Jacques Chirac spoke on the steps of the Pantheon about the author’s legacy. 

AUDIO: [CHIRAC SPEECH]

Chirac says: “Alexandre Dumas: With you, it is our childhood, hours of reading veiled with secrecy, emotions, passion, adventures, the panache, that enters the Pantheon.”

And death didn’t stop Dumas from churning out best sellers. Scholars continue to discover previously unknown works. The most recent was published in 2008. 

Turning now to one of the most famous aviation mysteries in history: The disappearance of Flight 19 over the Bermuda Triangle—between Miami, Puerto Rico, and Bermuda. The group of TBF and TBM Avenger torpedo bombers disappeared 75 years ago this Saturday. 

AUDIO: [1940s AIRCRAFTS IN FLIGHT]

The five planes departed Fort Lauderdale, Florida, for a U.S. Navy overwater navigation training exercise. United States Navy Lieutenant Charles Carroll Taylor led the flight. Taylor had more than 2,500 flying hours. So when he radioed that his compasses had failed, but he was sure they were over the Florida Keys, the student pilots followed. The BBC offers this reenactment of the radio communications. 

BBC: FT28, this is Fort Lauderdale, do you read me?/ FT28 to Fort Lauderdale, do you have a fix yet?

But the squadron lost contact with the base, prompting 13 crew members of a Martin PBM Mariner flying boat to search for the missing flight. Tragically, that aircraft also went missing, likely exploding mid-air due to explosive fumes accumulating in its bilge. 

AUDIO: [MID-AIR EXPLOSION]

All told, 27 crew members perished between the two incidents. The wreckage of Flight 19 never surfaced, but Navy investigators believe Lieutenant Taylor wasn’t over the Keys at all. He was likely over the Bahamas, and in trying to course correct, he took the flight farther over the Atlantic Ocean, where the planes would have run out of fuel. 

MUSIC: [HIMNO NACIONAL MEXICANO (MEXICAN NATIONAL ANTHEM)]

The phrase “peaceful transition of power” has been in the news lately following the recent U.S. presidential election. And for Mexico, tomorrow marks 20 years since the first peaceful transfer of power in a free, democratic election to an opposing political party at the executive federal level. That milestone occurred with the inauguration of Vicente Fox Quesada as president of Mexico on December 1st, 2000.

For seven decades, the same political party had been in power. But Fox shook things up, running as a member of an opposing party. Roderic Camp of Claremont McKenna College told CSPAN Fox set himself apart from his opponents in other ways, too. 

CAMP: He is the most animated of the three candidates. He’s a very effective public speaker… He dresses in cowboy boots and jeans and wears a belt with a very demonstrative belt buckle that says “Fox” on it. And he’s very much over six feet tall… 

Fox’s election 20 years ago brought about the end of 71 years of ruling-party domination in Mexico. And, in fact, the three presidents that followed Fox have represented three different political parties. So, while Vicente may have had an unconventional style, the strides he made in Mexican democracy make him look, well, crazy like a fox. 

MUSIC: [TRADITIONAL MARIACHI MUSIC]

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

NICK EICHER, HOST: Tomorrow: mask mandates are hard to police, especially when the police aren’t that interested in enforcing them. We’ll tell you about that challenge for public officials.

And, Dr. Charles Horton returns to talk about vaccines.

That and more tomorrow. 

I’m Nick Eicher.

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

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