vox--2020-12-09--The controversy behind a star Google AI researcher’s departure

Uncovering and explaining how our digital world is changing — and changing us .
Google ’ s workplace culture is yet again embroiled in controversy .
AI ethics researcher Timnit Gebru — a well-respected pioneer in her field and one of the few Black women leaders in the industry — said on December 2 that Google fired her after blocking the publication of her research around bias in AI systems .
Days before Gebru ’ s departure , she sent a scathing internal memo to her colleagues detailing how higher-ups at Google tried to quash her research .
She also @ @ @ @ @ @ @ as a continued lack of diversity among its staff .
In her widely read internal email , which was published by Platformer , Gebru said the company was “ silencing in the most fundamental way possible ” and claimed that “ your life gets worse when you start advocating for underrepresented people ” at Google .
After Gebru ’ s departure , Google ’ s head of AI research Jeff Dean sent a note to Gebru ’ s department on December 3 saying that , after internal review , her research paper did @ @ @ @ @ @ @ for publishing .
According to Gebru , the company also told her that her critical note to her coworkers was “ inconsistent with the expectations of a Google manager.
” On December 9 , a week after Gebru tweeted that she was fired , Google CEO Sundar Pichai sent a company-wide email , published by Axios , acknowledging the controversy surrounding Gebru ’ s exit , saying that “ it seeded doubts and led some in our community to question their place at Google.
” “ We need to accept responsibility for the @ @ @ @ @ @ @ leader with immense talent left Google unhappily , ” Pichai added , writing that the company would investigate the circumstances behind Gebru ’ s departure .
Pichai did not apologize directly to Gebru in the memo or confirm that she had been fired , as Gebru claimed .
After Pichai ’ s note went out , Gebru tweeted that she saw “ no plans for accountability ” in his memo .
“ I see this as ‘ I ’ m sorry for how it played out but I ’ m not sorry for @ @ @ @ @ @ @ ] yet , ” she wrote .
A representative for Google declined to comment .
Gebru did not respond to a request for comment .
Gebru ’ s allegation of being pushed out of the powerful tech company under questionable circumstances is causing a stir in the tech and academic communities , with many prominent researchers , civil rights leaders , and Gebru ’ s Google AI colleagues speaking out publicly on Twitter in her defense .
A petition to support her had by December 5 received signatures from more than 1,500 Google @ @ @ @ @ @ @ leaders , and industry peers .
Her departure is significant because it hits on broader tensions around racial diversity in Silicon Valley as well as whether or not academics have enough freedom to publish research , even if it ’ s controversial , while working at major companies that control the development of powerful technologies and have their own corporate interests to consider .
People are still trying to unravel exactly what led to Gebru ’ s departure from Google .
What we know is that Gebru and several of her colleagues were @ @ @ @ @ @ @ a forthcoming academic conference about unintended consequences in natural language processing systems , which are the tools used in the field of computing to understand and automate the creation of written words and audio .
Gebru and her colleagues ’ research , according to the New York Times , “ pinpointed flaws in a new breed of language technology , including a system built by Google that underpins the company ’ s search engine.
” It also reportedly discussed the environmental consequences of large-scale computing systems used to power natural language processing programs @ @ @ @ @ @ @ process , Gebru submitted the paper to Google for internal review before it was published more broadly .
Google determined that the paper was not up to its standards because it “ ignored too much relevant research , ” according to the memo Dean sent on Thursday .
Dean also said in his memo that Google rejected Gebru ’ s paper for publication because she submitted it one day before its deadline for publication instead of the required two weeks .
Gebru asked for further discussion with Google before retracting the paper , @ @ @ @ @ @ @ couldn ’ t address her concerns , Gebru said she would resign from the company .
Google told Gebru it couldn ’ t meet her conditions and the company was accepting her resignation immediately .
It ’ s a standard process for a company like Google to review the research of its employees before it ’ s published outside it .
But former colleagues and outside industry researchers defending Gebru questioned whether or not Google was arbitrarily enforcing its rules more strictly in this scenario .
“ It just seems odd that someone @ @ @ @ @ @ @ , who is quoted and cited on a daily basis , would be let go because a paper wasn ’ t reviewed properly , ” said Rumman Chowdhury , a data scientist who is the former head of responsible AI at Accenture Applied Intelligence and has now launched her own company called Parity .
Chowdhury has no affiliation with Google .
The conflict and Gebru ’ s departure reflect a growing tension between researchers studying the ethics of AI and the major tech companies that employ them .
It ’ s also another @ @ @ @ @ @ @ parts of Google ’ s workforce .
On December 2 , the National Labor Relations Board ( NLRB ) issued a complaint that said Google had spied on its workers and likely violated labor laws when it fired two employee activists last year .
After several years of turmoil in Google ’ s workforce over issues ranging from Google ’ s controversial plans to work with the US military to sexual harassment of its employees , the past several months had been relatively quiet .
The company ’ s biggest public pressure came @ @ @ @ @ @ @ lawmakers ’ unproven accusations that Google ’ s products display an anti-conservative bias .
But Gebru ’ s case and the recent NLRB complaint show the company is still fighting internal battles .
“ What Timnit did was present some hard but important evaluations of how the company ’ s efforts are going with diversity and inclusion initiatives and how to course-correct on that , ” said Laurence Berland , a former Google engineer who was fired after organizing his colleagues around worker issues and is one of the employees contesting his dismissal @ @ @ @ @ @ @ passionate , but it wasn ’ t just non-constructive , ” he said .
In the relatively new and developing field of ethical AI , Gebru is not only a foundational researcher but a role model to many young academics .
She ’ s also a leader of key groups like Black in AI , which are fostering more diversity in the largely white , male-dominated field of AI in the US .
While Google doesn ’ t break out its demographics specifically for its artificial intelligence research department , it does annually @ @ @ @ @ @ @ percent of its technical workforce are women , and just 2.4 percent are Black , according to its 2020 Diversity and Inclusion report .
“ Timnit is a pioneer .
She is one of the founders of responsible and ethical artificial intelligence , ” said Chowdhury .
“ Computer scientists and engineers enter the field because of her.
” In 2018 , Gebru and another researcher , Joy Buolamwini , published groundbreaking research showing facial recognition software identified darker-skinned people and women incorrectly at far higher rates than lighter-skinned people and men .
@ @ @ @ @ @ @ reckoning in the tech industry about the unintended consequences of AI that is trained on data sets that can marginalize minorities and women , reinforcing existing societal inequalities .
Outside of Google , academics in the field of AI are concerned that Gebru ’ s firing could scare other researchers from publishing important research that may step on the toes of their employers .
“ It ’ s not clear to researchers how they ’ re going to continue doing this work in the industry , ” said UC Berkeley computer science professor @ @ @ @ @ @ @ learning and has studied fairness in AI .
“ It ’ s a chilling moment , I would say.
” Update , December 9 , 3:30 pm PT : This article has been updated to include Google CEO Sundar Pichai ’ s memo to employees about Gebru ’ s departure .

Google’s workplace culture is yet again embroiled in controversy.
AI ethics researcher Timnit Gebru — a well-respected pioneer in her field and one of the few Black women leaders in the industry — said on December 2 that Google fired her after blocking the publication of her research around bias in AI systems. Days before Gebru’s departure, she sent a scathing internal memo to her colleagues detailing how higher-ups at Google tried to quash her research. She also criticized her department for what she described as a continued lack of diversity among its staff.
In her widely read internal email, which was published by Platformer, Gebru said the company was “silencing in the most fundamental way possible” and claimed that “your life gets worse when you start advocating for underrepresented people” at Google.
After Gebru’s departure, Google’s head of AI research Jeff Dean sent a note to Gebru’s department on December 3 saying that, after internal review, her research paper did not meet the company’s standards for publishing. According to Gebru, the company also told her that her critical note to her coworkers was “inconsistent with the expectations of a Google manager.”
On December 9, a week after Gebru tweeted that she was fired, Google CEO Sundar Pichai sent a company-wide email, published by Axios, acknowledging the controversy surrounding Gebru’s exit, saying that “it seeded doubts and led some in our community to question their place at Google.”
“We need to accept responsibility for the fact that a prominent Black, female leader with immense talent left Google unhappily,” Pichai added, writing that the company would investigate the circumstances behind Gebru’s departure.
Pichai did not apologize directly to Gebru in the memo or confirm that she had been fired, as Gebru claimed.
After Pichai’s note went out, Gebru tweeted that she saw “no plans for accountability” in his memo. “I see this as ‘I’m sorry for how it played out but I’m not sorry for what we did to her [Gebru] yet,” she wrote.
A representative for Google declined to comment. Gebru did not respond to a request for comment.
Gebru’s allegation of being pushed out of the powerful tech company under questionable circumstances is causing a stir in the tech and academic communities, with many prominent researchers, civil rights leaders, and Gebru’s Google AI colleagues speaking out publicly on Twitter in her defense. A petition to support her had by December 5 received signatures from more than 1,500 Google employees and over 2,000 academics, nonprofit leaders, and industry peers.
Her departure is significant because it hits on broader tensions around racial diversity in Silicon Valley as well as whether or not academics have enough freedom to publish research, even if it’s controversial, while working at major companies that control the development of powerful technologies and have their own corporate interests to consider.
Do you work at Google and want to talk? Please email Shirin Ghaffary at shirin.ghaffary@protonmail.com to reach her confidentially. Signal number available upon request.
What led to Gebru’s departure
People are still trying to unravel exactly what led to Gebru’s departure from Google.
What we know is that Gebru and several of her colleagues were planning to present a research paper at a forthcoming academic conference about unintended consequences in natural language processing systems, which are the tools used in the field of computing to understand and automate the creation of written words and audio. Gebru and her colleagues’ research, according to the New York Times, “pinpointed flaws in a new breed of language technology, including a system built by Google that underpins the company’s search engine.” It also reportedly discussed the environmental consequences of large-scale computing systems used to power natural language processing programs.
As part of Google’s process, Gebru submitted the paper to Google for internal review before it was published more broadly. Google determined that the paper was not up to its standards because it “ignored too much relevant research,” according to the memo Dean sent on Thursday.
Dean also said in his memo that Google rejected Gebru’s paper for publication because she submitted it one day before its deadline for publication instead of the required two weeks.
Gebru asked for further discussion with Google before retracting the paper, according to the Times. If Google couldn’t address her concerns, Gebru said she would resign from the company.
Google told Gebru it couldn’t meet her conditions and the company was accepting her resignation immediately.
It’s a standard process for a company like Google to review the research of its employees before it’s published outside it. But former colleagues and outside industry researchers defending Gebru questioned whether or not Google was arbitrarily enforcing its rules more strictly in this scenario.
“It just seems odd that someone who has had books written about her, who is quoted and cited on a daily basis, would be let go because a paper wasn’t reviewed properly,” said Rumman Chowdhury, a data scientist who is the former head of responsible AI at Accenture Applied Intelligence and has now launched her own company called Parity. Chowdhury has no affiliation with Google.
The conflict and Gebru’s departure reflect a growing tension between researchers studying the ethics of AI and the major tech companies that employ them.
It’s also another example of deep, ongoing issues dividing parts of Google’s workforce. On December 2, the National Labor Relations Board (NLRB) issued a complaint that said Google had spied on its workers and likely violated labor laws when it fired two employee activists last year.
After several years of turmoil in Google’s workforce over issues ranging from Google’s controversial plans to work with the US military to sexual harassment of its employees, the past several months had been relatively quiet. The company’s biggest public pressure came instead from antitrust legal scrutiny and Republican lawmakers’ unproven accusations that Google’s products display an anti-conservative bias. But Gebru’s case and the recent NLRB complaint show the company is still fighting internal battles.
“What Timnit did was present some hard but important evaluations of how the company’s efforts are going with diversity and inclusion initiatives and how to course-correct on that,” said Laurence Berland, a former Google engineer who was fired after organizing his colleagues around worker issues and is one of the employees contesting his dismissal with the NLRB. “It was passionate, but it wasn’t just non-constructive,” he said.
Why Gebru’s departure matters
In the relatively new and developing field of ethical AI, Gebru is not only a foundational researcher but a role model to many young academics. She’s also a leader of key groups like Black in AI, which are fostering more diversity in the largely white, male-dominated field of AI in the US.
While Google doesn’t break out its demographics specifically for its artificial intelligence research department, it does annually share its diversity numbers. Only 24.7 percent of its technical workforce are women, and just 2.4 percent are Black, according to its 2020 Diversity and Inclusion report.
“Timnit is a pioneer. She is one of the founders of responsible and ethical artificial intelligence,” said Chowdhury. “Computer scientists and engineers enter the field because of her.”
In 2018, Gebru and another researcher, Joy Buolamwini, published groundbreaking research showing facial recognition software identified darker-skinned people and women incorrectly at far higher rates than lighter-skinned people and men.
Her work has contributed to a broader reckoning in the tech industry about the unintended consequences of AI that is trained on data sets that can marginalize minorities and women, reinforcing existing societal inequalities.
Outside of Google, academics in the field of AI are concerned that Gebru’s firing could scare other researchers from publishing important research that may step on the toes of their employers.
“It’s not clear to researchers how they’re going to continue doing this work in the industry,” said UC Berkeley computer science professor Moritz Hardt, who specializes in machine learning and has studied fairness in AI. “It’s a chilling moment, I would say.”
Update, December 9, 3:30 pm PT: This article has been updated to include Google CEO Sundar Pichai’s memo to employees about Gebru’s departure.


vox--2020-12-09--The two competing stimulus proposals, explained

Stimulus talks , after a surge in momentum last week , have hit a new roadblock .
There are now two competing proposals in Congress , neither of which has garnered the support needed to move forward .
The first is a $ 908 billion bill that a bipartisan group of senators is working on , which has been heralded as a strong “ starting point ” by House Speaker Nancy Pelosi and Senate Minority Leader Chuck Schumer .
The second is a $ 916 billion offer from the White House via Treasury Secretary Steven Mnuchin , which Republican lawmakers @ @ @ @ @ @ @ and House Minority Leader Kevin McCarthy — have rallied behind .
Both contain funding for small businesses and vaccine distribution , though they differ on a couple key points .
The bipartisan proposal , for example , includes far more funding for unemployment insurance ( UI ) , guaranteeing a weekly $ 300 boost to recipients for 16 weeks , on top of what they are currently receiving on the state level .
The White House offer , on the other hand , only includes $ 40 billion to extend expiring programs that @ @ @ @ @ @ @ also contains funding for a second round of $ 600 stimulus checks , while the bipartisan proposal does not .
Democrats have already rejected the Mnuchin plan given its treatment of UI , while McConnell has balked at the bipartisan proposal as unnecessarily broad and favored a more targeted bill .
These disagreements leave lawmakers at yet another impasse , though both Republicans and Democrats have emphasized they ’ d like to get something done before leaving for the holiday break , something they ’ re currently scheduled to do by December 21 @ @ @ @ @ @ @ to save lives and livelihoods , with the hope that much more help is on the way , ” House Speaker Nancy Pelosi said at a press conference last week .
Barring more congressional action , a number of programs are otherwise set to expire by the end of the month , including housing protections and pandemic UI coverage for 12 million Americans .
The lack of support for unemployment insurance is a major problem in the Mnuchin plan Mnuchin ’ s proposal includes a provision that has been incredibly important to Republicans @ @ @ @ @ @ @ from pandemic-related lawsuits — as well as money for the Democratic priority of state and local aid .
However , it falls short in funding for unemployment insurance , something Democrats have already called out .
“ The President ’ s proposal starts by cutting the unemployment insurance proposal being discussed by bipartisan Members of the House and Senate from $ 180 billion to $ 40 billion .
That is unacceptable , ” Pelosi and Schumer said in a statement on Tuesday .
Mnuchin ’ s plan does not include any funding for @ @ @ @ @ @ @ , according to a Democratic aide .
The UI funding the Mnuchin plan does have is intended to extend pandemic programs for long-term unemployed people as well as gig economy workers and contractors , the New York Times reports .
( These programs enable people to receive UI for an extra 13 weeks and opened up the program to contractors , freelancers , and gig economy workers ; they currently cover roughly 12 million people . )
The White House plan differs significantly from the bipartisan proposal put forth by Republican and Democratic @ @ @ @ @ @ @ R-UT ) , Susan Collins ( R-ME ) , Joe Manchin ( D-WV ) , and Mark Warner ( D-VA ) , which would create a weekly $ 300 UI supplement that would last for 16 weeks .
Earlier this year , the first stimulus package , the CARES Act , included a $ 600 weekly UI supplement that lapsed at the end of July , and this provision is intended to provide recipients with a similar , albeit smaller , boost .
As Vox ’ s Dylan Matthews has previously explained , @ @ @ @ @ @ @ January was $ 385 without any supplement , and the added CARES Act payments offered much-needed additional support .
Mnuchin ’ s plan also allocates funding for a one-time round of $ 600 stimulus checks , half the amount that individuals received earlier this year , the Times reports .
The bipartisan Senate plan was not able to include a second wave of $ 1,200 stimulus checks because that would have added another $ 300 billion to the price tag , according to Sen. Dick Durbin ( D-IL ) .
A number of @ @ @ @ @ @ @ I-VT ) and Elizabeth Warren ( D-MA ) have , however , pushed for their inclusion .
The bipartisan group of senators on Wednesday released more details about their proposal , though their outline — obtained by Vox — notes that liability protections and state and local aid are among the areas subject to negotiations .
Below are some of the provisions it includes .
Unemployment insurance : The plan includes an additional $ 300 weekly UI payment for 16 weeks into April 2021 .
This supplemental payment bolsters the weekly payment that @ @ @ @ @ @ @ provision did in the CARES Act .
The bill would also extend pandemic unemployment insurance programs that are expiring at the end of December for another 16 weeks .
A previous outline estimated the allocation for UI at $ 180 billion .
Rental assistance : $ 25 billion in rental assistance is included as well as the establishment of a federal eviction moratorium through January 2021 .
As Vox ’ s Jerusalem Demsas has previously reported , advocates have argued that at least $ 100 billion in rental aid is needed to cover @ @ @ @ @ @ @ needed to ensure millions would not be evicted at the end of January .
Small business support : $ 300 billion for small business aid including the Paycheck Protection Program , a forgivable loan program that business owners can apply for to cover both payroll and operational costs .
These loans are aimed at smaller businesses with 300 employees or fewer that have seen a 30 percent or higher decrease in revenue in any quarter this year .
According to a Fortune report , this aid is aimed at addressing a dire need @ @ @ @ @ @ @ small businesses have already permanently shuttered during the pandemic .
Food aid : The proposal contains a monthly 15 percent increase in individual SNAP benefits , funds for pandemic aid for children who received food support at school , and money for other programs including Meals on Wheels and WIC .
Demand for such aid has spiked dramatically during the pandemic , with food banks across the country facing overwhelming need in recent months .
A previous outline estimated the allocation for food aid at $ 26 billion .
State and local aid @ @ @ @ @ @ @ , local , and tribal governments , money that ’ s aimed at helping address everything from health services to teacher pay , as states stare down massive budget cuts due to unexpected pandemic expenses and losses of tax revenue .
Lawmakers are using this number as a basis for negotiations .
Student loan deferment : Federal student loan payments would be deferred until the end of April 2021 , extending a policy that ’ s currently in place through the end of January 2021 .
This policy could impact about 40 million @ @ @ @ @ @ @ Lawmakers are continuing to negotiate on this point .
Democrats don ’ t support these protections at all while Republicans want to make sure businesses are shielded from possible legal fallout related to their actions during the pandemic .
A previous proposal included temporary liability protections for businesses and enabled states to make their own longer-term laws .
As Vox ’ s Ella Nilsen and Jerusalem Demsas have previously reported , there ’ s a number of other tenets in the proposal : The main conflicts could still come down to liability protections @ @ @ @ @ @ @ issues that lawmakers have struggled to navigate throughout stimulus negotiations are still liability protections — a top Republican demand — and state and local aid — a top Democratic one .
Earlier this week , McConnell had even suggested stripping both out of a stimulus bill in order to advance it , signaling some movement given his previous commitment to preserving liability protections .
“ Negotiating 101 suggests we set those two controversial pieces aside and plow ahead with the huge pile of things that we agree on , ” McConnell emphasized in @ @ @ @ @ @ @ also tried to push for a narrower $ 550 billion bill last week , though he ’ s since backed the more expensive Mnuchin plan .
Democratic leaders have noted , however , that any package without state and local aid would be completely inadequate given huge budget cuts that regional governments are being forced to make .
They ’ ve said , too , that state aid has support from lawmakers on both sides of the aisle .
“ State and local funding is bipartisan unlike the extreme corporate liability proposal Leader @ @ @ @ @ @ @ , ” Schumer has said .
Republicans thus far have insisted that liability protections are necessary to ensure that small businesses don ’ t get hit with a deluge of lawsuits for how they handled the pandemic , while Democrats counter that such shields are intended to protect corporations from accountability .
Some Republicans , including McConnell , have opposed state and local aid because they claim that states could use this funding to cover other unrelated costs .
Researchers , however , have emphasized that these funds are needed to address what @ @ @ @ @ @ @ in shortfalls that states have accrued due to lower revenues and higher costs during the pandemic .
These two sticking points — as well as funding for more unemployment insurance — are among the areas the lawmakers must continue to work through if they want to reach a compromise in the coming weeks .
The stakes for doing so are incredibly high : Millions of Americans are navigating layoffs , potential evictions , and business closures as coronavirus cases continue to soar .

Stimulus talks, after a surge in momentum last week, have hit a new roadblock.
There are now two competing proposals in Congress, neither of which has garnered the support needed to move forward.
The first is a $908 billion bill that a bipartisan group of senators is working on, which has been heralded as a strong “starting point” by House Speaker Nancy Pelosi and Senate Minority Leader Chuck Schumer. The second is a $916 billion offer from the White House via Treasury Secretary Steven Mnuchin, which Republican lawmakers — including Senate Majority Leader Mitch McConnell and House Minority Leader Kevin McCarthy — have rallied behind.
Both contain funding for small businesses and vaccine distribution, though they differ on a couple key points. The bipartisan proposal, for example, includes far more funding for unemployment insurance (UI), guaranteeing a weekly $300 boost to recipients for 16 weeks, on top of what they are currently receiving on the state level.
The White House offer, on the other hand, only includes $40 billion to extend expiring programs that have increased access to UI. It also contains funding for a second round of $600 stimulus checks, while the bipartisan proposal does not.
Democrats have already rejected the Mnuchin plan given its treatment of UI, while McConnell has balked at the bipartisan proposal as unnecessarily broad and favored a more targeted bill. These disagreements leave lawmakers at yet another impasse, though both Republicans and Democrats have emphasized they’d like to get something done before leaving for the holiday break, something they’re currently scheduled to do by December 21.
“We need to do it to save lives and livelihoods, with the hope that much more help is on the way,” House Speaker Nancy Pelosi said at a press conference last week. Barring more congressional action, a number of programs are otherwise set to expire by the end of the month, including housing protections and pandemic UI coverage for 12 million Americans.
The lack of support for unemployment insurance is a major problem in the Mnuchin plan
Mnuchin’s proposal includes a provision that has been incredibly important to Republicans — liability protections that would shield businesses from pandemic-related lawsuits — as well as money for the Democratic priority of state and local aid. However, it falls short in funding for unemployment insurance, something Democrats have already called out.
“The President’s proposal starts by cutting the unemployment insurance proposal being discussed by bipartisan Members of the House and Senate from $180 billion to $40 billion. That is unacceptable,” Pelosi and Schumer said in a statement on Tuesday.
Mnuchin’s plan does not include any funding for enhanced UI payments above their current levels, according to a Democratic aide. The UI funding the Mnuchin plan does have is intended to extend pandemic programs for long-term unemployed people as well as gig economy workers and contractors, the New York Times reports. (These programs enable people to receive UI for an extra 13 weeks and opened up the program to contractors, freelancers, and gig economy workers; they currently cover roughly 12 million people.)
The White House plan differs significantly from the bipartisan proposal put forth by Republican and Democratic lawmakers including Sens. Mitt Romney (R-UT), Susan Collins (R-ME), Joe Manchin (D-WV), and Mark Warner (D-VA), which would create a weekly $300 UI supplement that would last for 16 weeks.
Earlier this year, the first stimulus package, the CARES Act, included a $600 weekly UI supplement that lapsed at the end of July, and this provision is intended to provide recipients with a similar, albeit smaller, boost. As Vox’s Dylan Matthews has previously explained, the average weekly UI payment this past January was $385 without any supplement, and the added CARES Act payments offered much-needed additional support.
Mnuchin’s plan also allocates funding for a one-time round of $600 stimulus checks, half the amount that individuals received earlier this year, the Times reports. The bipartisan Senate plan was not able to include a second wave of $1,200 stimulus checks because that would have added another $300 billion to the price tag, according to Sen. Dick Durbin (D-IL). A number of lawmakers including Sens. Bernie Sanders (I-VT) and Elizabeth Warren (D-MA) have, however, pushed for their inclusion.
What’s in the bipartisan group’s latest proposal
The bipartisan group of senators on Wednesday released more details about their proposal, though their outline — obtained by Vox — notes that liability protections and state and local aid are among the areas subject to negotiations. Below are some of the provisions it includes.
Unemployment insurance: The plan includes an additional $300 weekly UI payment for 16 weeks into April 2021. This supplemental payment bolsters the weekly payment that recipients get, much like a prior provision did in the CARES Act. The bill would also extend pandemic unemployment insurance programs that are expiring at the end of December for another 16 weeks. A previous outline estimated the allocation for UI at $180 billion.
Rental assistance: $25 billion in rental assistance is included as well as the establishment of a federal eviction moratorium through January 2021. As Vox’s Jerusalem Demsas has previously reported, advocates have argued that at least $100 billion in rental aid is needed to cover current shortfalls. Additional action would be needed to ensure millions would not be evicted at the end of January.
Small business support: $300 billion for small business aid including the Paycheck Protection Program, a forgivable loan program that business owners can apply for to cover both payroll and operational costs. These loans are aimed at smaller businesses with 300 employees or fewer that have seen a 30 percent or higher decrease in revenue in any quarter this year. According to a Fortune report, this aid is aimed at addressing a dire need many business owners face. Almost 100,000 small businesses have already permanently shuttered during the pandemic.
Food aid: The proposal contains a monthly 15 percent increase in individual SNAP benefits, funds for pandemic aid for children who received food support at school, and money for other programs including Meals on Wheels and WIC. Demand for such aid has spiked dramatically during the pandemic, with food banks across the country facing overwhelming need in recent months. A previous outline estimated the allocation for food aid at $26 billion.
State and local aid: $160 billion allocated to state, local, and tribal governments, money that’s aimed at helping address everything from health services to teacher pay, as states stare down massive budget cuts due to unexpected pandemic expenses and losses of tax revenue. Lawmakers are using this number as a basis for negotiations.
Student loan deferment: Federal student loan payments would be deferred until the end of April 2021, extending a policy that’s currently in place through the end of January 2021. This policy could impact about 40 million student loan borrowers.
Liability protections: Lawmakers are continuing to negotiate on this point. Democrats don’t support these protections at all while Republicans want to make sure businesses are shielded from possible legal fallout related to their actions during the pandemic. A previous proposal included temporary liability protections for businesses and enabled states to make their own longer-term laws.
As Vox’s Ella Nilsen and Jerusalem Demsas have previously reported, there’s a number of other tenets in the proposal:
The framework also includes [funds] for transportation including airlines and Amtrak, $16 billion for vaccine development and more Covid-19 testing and tracing, $82 billion in federal education funding, $10 billion for the struggling US Postal Service, and $10 billion for child care, among other things.
The main conflicts could still come down to liability protections and state and local aid
The recurring issues that lawmakers have struggled to navigate throughout stimulus negotiations are still liability protections — a top Republican demand — and state and local aid — a top Democratic one. Earlier this week, McConnell had even suggested stripping both out of a stimulus bill in order to advance it, signaling some movement given his previous commitment to preserving liability protections.
“Negotiating 101 suggests we set those two controversial pieces aside and plow ahead with the huge pile of things that we agree on,” McConnell emphasized in a floor speech on Wednesday. He also tried to push for a narrower $550 billion bill last week, though he’s since backed the more expensive Mnuchin plan.
Democratic leaders have noted, however, that any package without state and local aid would be completely inadequate given huge budget cuts that regional governments are being forced to make. They’ve said, too, that state aid has support from lawmakers on both sides of the aisle. “State and local funding is bipartisan unlike the extreme corporate liability proposal Leader McConnell made which has no Democratic support,” Schumer has said.
Republicans thus far have insisted that liability protections are necessary to ensure that small businesses don’t get hit with a deluge of lawsuits for how they handled the pandemic, while Democrats counter that such shields are intended to protect corporations from accountability. Some Republicans, including McConnell, have opposed state and local aid because they claim that states could use this funding to cover other unrelated costs. Researchers, however, have emphasized that these funds are needed to address what could be up to $500 billion in shortfalls that states have accrued due to lower revenues and higher costs during the pandemic.
These two sticking points — as well as funding for more unemployment insurance — are among the areas the lawmakers must continue to work through if they want to reach a compromise in the coming weeks. The stakes for doing so are incredibly high: Millions of Americans are navigating layoffs, potential evictions, and business closures as coronavirus cases continue to soar.


vox--2020-12-09--Why Biden’s Pentagon pick is causing so much controversy

He ’ s a historic pick , but not the only historic option available .
He ’ s qualified , but not easily confirmable under federal law .
And he ’ s experienced , but maybe not in the right way .
Those are the controversies swirling around President-elect Joe Biden ’ s selection of retired Army Gen. Lloyd Austin for defense secretary .
Biden promised to form a more diverse Cabinet that “ looks like America , ” and if confirmed , Austin would be the first Black person to lead the Pentagon .
Announcing his choice in a @ @ @ @ @ @ @ future commander in chief said his time as vice president working alongside the retired four-star general on the fight against ISIS and on the 2011 US troop withdrawal from Iraq convinced him that Austin “ is the person we need in this moment.
” But not everyone is convinced , meaning Austin ’ s path to the Pentagon isn ’ t guaranteed — which could prove a big , early blow to Biden ’ s plans .
Austin isn ’ t eligible to be secretary of defense under current federal law Austin only @ @ @ @ @ @ @ a 41-year career .
That ’ s a problem , as federal law requires anyone who served in the military to have been out of uniform for at least seven years before they can be eligible to run the Pentagon as secretary of defense .
Congress has issued waivers to that law twice — confirming George Marshall in 1950 and James Mattis in 2017 — and Biden is asking Congress to do so again for Austin .
“ There ’ s a good reason for this law that I fully understand and respect @ @ @ @ @ @ @ this exception if I did not believe that this moment in our history didn ’ t call for it , ” Biden said on Wednesday in an event introducing Austin as his selection .
” Just as they did for Jim Mattis , I ask the Congress to grant a waiver.
” But that prospect has some experts concerned about the erosion of an important democratic norm : civilian control of the military .
Experts say the statute is on the books to ensure the Defense Department remains a civilian-run agency .
While @ @ @ @ @ @ @ worry is he — or others recently retired or separated from the military — is naturally stuck in thinking like a soldier after over 40 years in uniform .
Plus , having recent flag officers associated with one party or another threatens to politicize the military , an outcome modern democracies seek to avoid .
“ This move risks opening the door to fully politicizing norms dividing the military from civilian politics , ” said Jim Golby , a retired Army officer now at the University of Texas at Austin .
Those were @ @ @ @ @ @ @ the top Democrat on the Senate Armed Services Committee , promised to uphold after voting to approve Mattis as Pentagon chief in 2017 .
“ I will not support a waiver for future nominees .
Nor will I support any effort to water down or repeal the statute in the future , ” he said .
But now Reed has backtracked , likely in an effort not to anger Biden and not to be seen as tanking the first Black defense secretary ’ s chances .
“ I feel , in all fairness @ @ @ @ @ @ @ to the nominee to explain himself or herself , ” he told reporters on Tuesday .
That helps Austin ’ s chances , especially since Oklahoma Sen. Jim Inhofe , the committee chair , already supported Biden ’ s pick .
Others , such as House Armed Services Committee member Ro Khanna ( D-CA ) , simply think Austin ’ s qualifications — as well as his race — justify such a waiver .
Khanna , who voted against Mattis ’ s waiver , told me it would be “ hypocritical ” for @ @ @ @ @ @ @ but not Austin .
Asked whether it was hypocritical to have opposed issuing such a waiver under a Republican administration and support one now , he responded : “ That ’ s a view if you believe race doesn ’ t matter ... My view is we ’ ve never had an African American lead the Defense Department.
” When I asked if he ’ d vote against the waiver if Austin were white , he said : “ I think it would be a closer call .
I think it has to @ @ @ @ @ @ @ a factor , and it should be a factor.
” The general ’ s recent military service isn ’ t just an issue because of that federal law , though .
Austin led US Central Command , from 2013 to 2016 , and during that time he helped oversee the campaign against ISIS .
Many , including his critics , credit him for creating the strategy that eventually led to the military defeat of the terrorist group in Iraq and Syria .
Former Army Secretary John McHugh told me “ it ’ d @ @ @ @ @ @ @ , ” and former US Ambassador to Iraq James Jeffrey labeled his former colleague “ a consummate military professional.
” But some who worked with Austin when he led US Central Command — the organization that oversees US military operations in the Middle East — are more critical of his performance .
“ Things were really bad , ” said Kris Alexander , a retired lieutenant colonel who served with Austin at CENTCOM .
“ You hate to denigrate the guy , he was a good combat leader .
But you really don @ @ @ @ @ @ @ for that Combatant Command-level until they get there.
” Austin and his team faced allegations from CENTCOM intelligence officials that they sought slanted analysis to make ISIS seem weaker than it was and American efforts more effective than they were at the time .
A 2017 Pentagon investigation eventually cleared Austin and others of wrongdoing , but those who were there at the time believe their boss ’ insular style of leadership led to those perceptions .
“ He had his inner circle and he had a contentious relationship with his intelligence folks @ @ @ @ @ @ @ was just obvious to everybody that things weren ’ t going well .
Generals and colonels were arguing in meetings.
” For Alexander and his colleagues , watching Austin hand over command in 2016 “ was the first time many of us saw him at headquarters.
” That kind of behavior has some worried about how Austin might lead the Pentagon , a much bigger organization than Central Command .
Austin ’ s military career may not match the moment Some Republicans and Democrats are also questioning whether Austin ’ s experience leading @ @ @ @ @ @ @ East is what ’ s needed in a world where the Pentagon now views China as the nation ’ s biggest threat .
“ There are real questions as to that experience being helpful for the 2020s , ” a Senate Democratic aide told me .
Austin spent a lot of time fighting wars in the Middle East against insurgents and terrorists .
Few in the US have such experience , and it make him incredibly valuable when discussing that kind of conflict .
The problem is Biden wants to wind down the @ @ @ @ @ @ @ wants to focus its attention on “ great power conflict , ” particularly against China .
Such a fight would almost certainly require greater knowledge of naval and aerial warfare instead of Austin ’ s expertise in on-the-ground soldiering .
It ’ s for those reasons that Wisconsin Rep. Mike Gallagher , a Republican and former Marine , recently said Austin is “ not the pick if you believe China is an urgent threat.
” The Global Times , a state-run Chinese propaganda outlet , is already claiming that Biden ’ s pick @ @ @ @ @ @ @ with Beijing .
“ Picking Austin as the new secretary of defense signals that the US will to some extent ease tensions with China , ” a Wednesday editorial read .
“ We might see the US adjust its entire overseas military strategy.
” Minimizing the chance for war with China is a good thing , not a bad thing .
But importantly , Biden didn ’ t once mention the word “ China ” in his Tuesday op-ed , garnering criticism from some experts that he wasn ’ t taking the issue @ @ @ @ @ @ @ in moments like these to know what Biden and Austin think on that important issue .
The problem is that few know exactly what Austin believes on it — or anything , really .
Austin has been labeled “ an invisible general ” for consistently shunning the limelight and the press .
He rarely gives his views on key issues in public , and those who know him say he barely speaks his mind in private .
“ It ’ s not clear what Austin ’ s priorities would be , ” a @ @ @ @ @ @ @ he has been clear on is not wanting to significantly reduce the number of US troops abroad .
“ I believe we should be doing all we can to preserve our current forward presence to the greatest extent possible rather than cede ground and regional partnerships , ” he told the US Army in a 2018 interview .
“ Presence buys you influence , which is built on trust ; you can ’ t surge trust.
” Still , a general lack of understanding of Austin ’ s views bothers even the Senate @ @ @ @ @ @ @ sure [ he believes ] we ’ re not fighting the wars of 10 or 20 years ago , ” the staffer told me , and instead cares about others threats like China and climate change .
After he spent over 40 years in uniform , his confirmation hearings will be among the few times much of the nation will get to hear what Austin thinks .
And if he says enough of the right things , he ’ ll likely be leading Biden ’ s Pentagon next year .
Most expect he @ @ @ @ @ @ @ disastrous performances in front of Congress before .
In September 2015 , Austin testified before the Senate Armed Services Committee that only “ four or five ” of the 54 US-trained rebels in Syria were still on the ground fighting ISIS .
By that point , $ 42 million had been spent on the $ 500 million training program that had begun that April .
Austin also said he wouldn ’ t support a no-fly zone or buffer zone in Syria to help refugees escape , prompting ire from then-committee chair John McCain @ @ @ @ @ @ @ seen a hearing that is as divorced from the reality of every outside expert and what you are saying.
” Others , like Khanna , applauded Austin ’ s decision not to further involve the US military in that conflict or aim to influence policy , which civilians are supposed to be in charge of .
Alexander remembers watching that event with fellow aides .
“ We watched his utter collapse , ” he told me .
“ We ’ re all just sitting there agog , like , ‘ Holy shit , @ @ @ @ @ @ @ of the confirmation process , Austin will get another shot in front of Congress .
It ’ ll be up to him to make spectators say “ holy shit ” again — but in a good way .

He’s a historic pick, but not the only historic option available. He’s qualified, but not easily confirmable under federal law. And he’s experienced, but maybe not in the right way.
Those are the controversies swirling around President-elect Joe Biden’s selection of retired Army Gen. Lloyd Austin for defense secretary. Biden promised to form a more diverse Cabinet that “looks like America,” and if confirmed, Austin would be the first Black person to lead the Pentagon.
Announcing his choice in a Tuesday op-ed in the Atlantic, the future commander in chief said his time as vice president working alongside the retired four-star general on the fight against ISIS and on the 2011 US troop withdrawal from Iraq convinced him that Austin “is the person we need in this moment.”
But not everyone is convinced, meaning Austin’s path to the Pentagon isn’t guaranteed — which could prove a big, early blow to Biden’s plans.
Austin isn’t eligible to be secretary of defense under current federal law
Austin only left the Army in 2016, after a 41-year career. That’s a problem, as federal law requires anyone who served in the military to have been out of uniform for at least seven years before they can be eligible to run the Pentagon as secretary of defense.
Congress has issued waivers to that law twice — confirming George Marshall in 1950 and James Mattis in 2017 — and Biden is asking Congress to do so again for Austin.
“There’s a good reason for this law that I fully understand and respect. I would not be asking for this exception if I did not believe that this moment in our history didn’t call for it,” Biden said on Wednesday in an event introducing Austin as his selection. ”Just as they did for Jim Mattis, I ask the Congress to grant a waiver.”
But that prospect has some experts concerned about the erosion of an important democratic norm: civilian control of the military.
Experts say the statute is on the books to ensure the Defense Department remains a civilian-run agency. While Austin is a civilian now, the worry is he — or others recently retired or separated from the military — is naturally stuck in thinking like a soldier after over 40 years in uniform. Plus, having recent flag officers associated with one party or another threatens to politicize the military, an outcome modern democracies seek to avoid.
“This move risks opening the door to fully politicizing norms dividing the military from civilian politics,” said Jim Golby, a retired Army officer now at the University of Texas at Austin.
Those were norms Rhode Island Sen. Jack Reed, the top Democrat on the Senate Armed Services Committee, promised to uphold after voting to approve Mattis as Pentagon chief in 2017. “I will not support a waiver for future nominees. Nor will I support any effort to water down or repeal the statute in the future,” he said.
But now Reed has backtracked, likely in an effort not to anger Biden and not to be seen as tanking the first Black defense secretary’s chances. “I feel, in all fairness, you have to give the opportunity to the nominee to explain himself or herself,” he told reporters on Tuesday. That helps Austin’s chances, especially since Oklahoma Sen. Jim Inhofe, the committee chair, already supported Biden’s pick.
Others, such as House Armed Services Committee member Ro Khanna (D-CA), simply think Austin’s qualifications — as well as his race — justify such a waiver. Khanna, who voted against Mattis’s waiver, told me it would be “hypocritical” for Congress to give a waiver to Mattis but not Austin.
Asked whether it was hypocritical to have opposed issuing such a waiver under a Republican administration and support one now, he responded: “That’s a view if you believe race doesn’t matter ... My view is we’ve never had an African American lead the Defense Department.”
When I asked if he’d vote against the waiver if Austin were white, he said: “I think it would be a closer call. I think it has to be a consideration, it’s a factor, and it should be a factor.”
Austin’s time at Central Command courted controversy
The general’s recent military service isn’t just an issue because of that federal law, though.
Austin led US Central Command, from 2013 to 2016, and during that time he helped oversee the campaign against ISIS. Many, including his critics, credit him for creating the strategy that eventually led to the military defeat of the terrorist group in Iraq and Syria.
Former Army Secretary John McHugh told me “it’d be hard to make a finer pick,” and former US Ambassador to Iraq James Jeffrey labeled his former colleague “a consummate military professional.”
But some who worked with Austin when he led US Central Command — the organization that oversees US military operations in the Middle East — are more critical of his performance. “Things were really bad,” said Kris Alexander, a retired lieutenant colonel who served with Austin at CENTCOM. “You hate to denigrate the guy, he was a good combat leader. But you really don’t know who’s ready for that Combatant Command-level until they get there.”
Austin and his team faced allegations from CENTCOM intelligence officials that they sought slanted analysis to make ISIS seem weaker than it was and American efforts more effective than they were at the time. A 2017 Pentagon investigation eventually cleared Austin and others of wrongdoing, but those who were there at the time believe their boss’ insular style of leadership led to those perceptions.
“He had his inner circle and he had a contentious relationship with his intelligence folks,” said Alexander. “It was just obvious to everybody that things weren’t going well. Generals and colonels were arguing in meetings.” For Alexander and his colleagues, watching Austin hand over command in 2016 “was the first time many of us saw him at headquarters.”
That kind of behavior has some worried about how Austin might lead the Pentagon, a much bigger organization than Central Command.
Austin’s military career may not match the moment
Some Republicans and Democrats are also questioning whether Austin’s experience leading America’s wars in the Middle East is what’s needed in a world where the Pentagon now views China as the nation’s biggest threat.
“There are real questions as to that experience being helpful for the 2020s,” a Senate Democratic aide told me.
Austin spent a lot of time fighting wars in the Middle East against insurgents and terrorists. Few in the US have such experience, and it make him incredibly valuable when discussing that kind of conflict.
The problem is Biden wants to wind down the “forever wars” and the Pentagon wants to focus its attention on “great power conflict,” particularly against China. Such a fight would almost certainly require greater knowledge of naval and aerial warfare instead of Austin’s expertise in on-the-ground soldiering. It’s for those reasons that Wisconsin Rep. Mike Gallagher, a Republican and former Marine, recently said Austin is “not the pick if you believe China is an urgent threat.”
The Global Times, a state-run Chinese propaganda outlet, is already claiming that Biden’s pick is a signal to calm down tensions with Beijing. “Picking Austin as the new secretary of defense signals that the US will to some extent ease tensions with China,” a Wednesday editorial read. “We might see the US adjust its entire overseas military strategy.”
Minimizing the chance for war with China is a good thing, not a bad thing. But importantly, Biden didn’t once mention the word “China” in his Tuesday op-ed, garnering criticism from some experts that he wasn’t taking the issue seriously.
It’d be great in moments like these to know what Biden and Austin think on that important issue. The problem is that few know exactly what Austin believes on it — or anything, really.
Austin has been labeled “an invisible general” for consistently shunning the limelight and the press. He rarely gives his views on key issues in public, and those who know him say he barely speaks his mind in private.
“It’s not clear what Austin’s priorities would be,” a recent NPR story noted.
One thing he has been clear on is not wanting to significantly reduce the number of US troops abroad. “I believe we should be doing all we can to preserve our current forward presence to the greatest extent possible rather than cede ground and regional partnerships,” he told the US Army in a 2018 interview. “Presence buys you influence, which is built on trust; you can’t surge trust.”
Still, a general lack of understanding of Austin’s views bothers even the Senate aide. We have to “make sure [he believes] we’re not fighting the wars of 10 or 20 years ago,” the staffer told me, and instead cares about others threats like China and climate change.
After he spent over 40 years in uniform, his confirmation hearings will be among the few times much of the nation will get to hear what Austin thinks. And if he says enough of the right things, he’ll likely be leading Biden’s Pentagon next year.
Most expect he will — but he’s had disastrous performances in front of Congress before.
In September 2015, Austin testified before the Senate Armed Services Committee that only “four or five” of the 54 US-trained rebels in Syria were still on the ground fighting ISIS. By that point, $42 million had been spent on the $500 million training program that had begun that April.
Austin also said he wouldn’t support a no-fly zone or buffer zone in Syria to help refugees escape, prompting ire from then-committee chair John McCain who said he’d “never seen a hearing that is as divorced from the reality of every outside expert and what you are saying.” Others, like Khanna, applauded Austin’s decision not to further involve the US military in that conflict or aim to influence policy, which civilians are supposed to be in charge of.
Alexander remembers watching that event with fellow aides. “We watched his utter collapse,” he told me. “We’re all just sitting there agog, like, ‘Holy shit, this is bad.’”
As part of the confirmation process, Austin will get another shot in front of Congress. It’ll be up to him to make spectators say “holy shit” again — but in a good way.


vox--2020-12-09--Trump says Texas’s challenge to his election loss is “the big one.” It’s almost certain to fail.

President Donald Trump on Wednesday proclaimed on Twitter that the federal government “ will be INTERVENING ” in a long-shot Texas lawsuit challenging the results of the presidential election he lost to Joe Biden , adding that the case — which comes as Trump and his allies are on a historic streak of losing legal challenges — is “ the big one.
” The case is the handiwork of staunch Trump ally Texas Attorney General Ken Paxton ( who is under federal investigation and hence could benefit from a potential presidential pardon ) .
Paxton ’ s lawsuit asks the @ @ @ @ @ @ @ Biden won the popular vote — Pennsylvania , Michigan , Wisconsin , and Georgia — from casting electoral votes for Biden .
It ’ s not exactly clear what Trump meant in promising to “ intervene ” in the lawsuit , which has the support of 17 other Republican state attorneys general who on Wednesday filed an amicus brief rife with flawed arguments .
If the Texas lawsuit succeeds and the four states in question are prevented from casting electoral votes for Biden , it would mean that Biden would no longer have @ @ @ @ @ @ @ become president .
That would obviously be a very big deal , and could perhaps signal the end of democratic presidential elections in the United States .
But there ’ s no reason to believe the Supreme Court will insert itself into an election that Biden very clearly won .
As Amy Howe explains for SCOTUSblog , Paxton ’ s lawsuit argues that Texas voters were disenfranchised in a national election by lax mail voting standards in Pennsylvania , Michigan , Wisconsin , and Georgia : The filing by Texas Attorney General Ken @ @ @ @ @ @ @ states of using the COVID-19 pandemic to make changes to their states ’ election laws through “ executive fiat or friendly lawsuits , thereby weakening ballot integrity.
” The state officials , Paxton writes , “ flooded ” their states with absentee ballots and “ weakened the strongest security measures protecting the integrity of the vote-signature verification and witness requirements.
” As a result , Paxton contends , the 2020 election “ suffered from significant and unconstitutional irregularities in those four states ” – for example , treating voters in Democratic areas more @ @ @ @ @ @ @ taken together , Paxton asserts , these flaws make it impossible to know who “ legitimately won the 2020 election and threaten to cloud all future elections.
” During a Fox & Friends appearance on Wednesday , Paxton argued that the four states in question “ did not follow their own state law , ” so the remedy should be to “ transfer this to the legislature ... and let them decide the outcome of the election.
” ( All four states in question have legislatures that are controlled by Republicans . )
@ @ @ @ @ @ @ same one that has dogged all the legal challenges filed so far by Trump allies : There ’ s simply no evidence of significant irregularities .
Elections officials in dozens of states spanning the red-to-blue spectrum have found no evidence of significant voter fraud marring the results .
And they ’ ve looked .
“ Charges of unfairness are serious .
But calling an election unfair does not make it so , ” wrote Trump-appointed Judge Stephanos Bibas while rejecting a Trump legal challenge to Pennsylvania ’ s results .
That sentiment was @ @ @ @ @ @ @ ’ s Supreme Court , Brian Hagedorn , who wrote in response to another failed Trump legal challenge , “ Judicial acquiescence to such entreaties built on so flimsy a foundation would do indelible damage to every future election.
” Unsurprisingly , elections officials and lawyers active in the states being sued by Paxton are responding to his effort by mocking and ridiculing it .
Marc Elias , chair of the Perkins Coie Political Law group , which represents the Biden campaign , tweeted of the lawsuit , “ No , I am @ @ @ @ @ @ @ ’ t succeed.
” Georgia Attorney General Chris Carr , who chairs the Republican Attorneys General Association , said through a spokesperson that “ with all due respect , the Texas Attorney General is constitutionally , legally and factually wrong about Georgia.
” Along similar lines , Michigan Secretary of State Jocelyn Benson , a Democrat , tweeted , “ This lawsuit seems to suggest that the voters of Michigan messed with Texas .
They didn ’ t .
Case closed.
” While Trump hasn ’ t been shy about indicating publicly that @ @ @ @ @ @ @ he successfully nominated owe him something , the court ’ s quick one-sentence dismissal on Tuesday of Rep. Mike Kelly ’ s ( R-PA ) effort to prevent Pennsylvania from certifying Biden ’ s victory in the state indicated that the court ’ s conservative majority isn ’ t keen to involve themselves in Trump ’ s efforts to overturn his loss .
For Trump , however , desperate times call for desperate measures .
The backdrop for Trump ’ s embrace of the Texas gambit is his increasing brazenness about what he @ @ @ @ @ @ @ is overturn the results of an election he lost .
On Wednesday alone , the president posted a tweet exclaiming “ RIGGED ELECTION , ” another claiming ( falsely ) that “ I received hundreds of thousands of legal votes more , in all of the Swing States , than did my opponent , ” and a third lamenting that “ If somebody cheated in the Election , which the Democrats did , why wouldn ’ t the Election be immediately overturned ?
How can a Country be run like this ?
” @ @ @ @ @ @ @ used a coronavirus vaccine event at the White House as an opportunity to undermine US elections while suggesting Biden might not be inaugurated as president next month .
While Trump wants people to believe his loss to Biden was tainted , his legal team hasn ’ t been able to produce any evidence .
In fact , there have been more coronavirus cases among Trump ’ s top campaign lawyers ( two — Rudy Giuliani and Jenna Ellis recently tested positive ) than successful legal challenges brought by Trump ’ s allies ( @ @ @ @ @ @ @ s lawsuit recycles flimsy allegations of irregularities from challenges that have already failed .
For instance , University of Washington School of Law professor Lisa Marshall Manheim argued in the Washington Post of Paxton ’ s case that “ it is an uninspired retread of the many state-level claims that already have imploded since Nov. 3 .
Texas has simply delivered these defective claims in an even worse package.
” Uninspired as it may be , Trump is clearly unable to discern good evidence from nonsense .
On Wednesday , for instance , @ @ @ @ @ @ @ briefly upgraded his odds of winning on election night — before many of the mail votes that Biden unsurprisingly dominated were tallied — as apparent evidence that he was the victim of a conspiracy .
( Trump ’ s tweet is factually incorrect .
His odds were never as high as he claimed . )
While it ’ s unlikely that the Texas lawsuit gains traction , Trump ’ s refusal to concede has produced a fundraising bonanza for him and given his hardcore fans a reason to hold on to hope for @ @ @ @ @ @ @ In the likely event that the Texas gambit fails , the result will feed into the “ rigged election ” narrative Trump has been pushing — one that could become his platform for a 2024 run .
And if staying true to that story requires Trump to denigrate the Supreme Court as part of the “ deep state , ” then there ’ s little reason to believe he won ’ t go there .

President Donald Trump on Wednesday proclaimed on Twitter that the federal government “will be INTERVENING” in a long-shot Texas lawsuit challenging the results of the presidential election he lost to Joe Biden, adding that the case — which comes as Trump and his allies are on a historic streak of losing legal challenges — is “the big one.”
“Our Country needs a victory!” Trump wrote.
We will be INTERVENING in the Texas (plus many other states) case. This is the big one. Our Country needs a victory! — Donald J. Trump (@realDonaldTrump) December 9, 2020
The case is the handiwork of staunch Trump ally Texas Attorney General Ken Paxton (who is under federal investigation and hence could benefit from a potential presidential pardon). Paxton’s lawsuit asks the Supreme Court to block four states where Biden won the popular vote — Pennsylvania, Michigan, Wisconsin, and Georgia — from casting electoral votes for Biden.
It’s not exactly clear what Trump meant in promising to “intervene” in the lawsuit, which has the support of 17 other Republican state attorneys general who on Wednesday filed an amicus brief rife with flawed arguments.
A lot of this brief is people in glass houses casting stones. It argues that allowing absentee ballots to arrive after Election Day undermines faith in democracy. But Kansas and Mississippi, which both signed on, also count mail-in ballots that arrive late. pic.twitter.com/vOuGvjQjVW — Brad Heath (@bradheath) December 9, 2020
If the Texas lawsuit succeeds and the four states in question are prevented from casting electoral votes for Biden, it would mean that Biden would no longer have the 270 electoral votes he needs to become president. That would obviously be a very big deal, and could perhaps signal the end of democratic presidential elections in the United States. But there’s no reason to believe the Supreme Court will insert itself into an election that Biden very clearly won.
The Texas lawsuit is a slapdash effort
As Amy Howe explains for SCOTUSblog, Paxton’s lawsuit argues that Texas voters were disenfranchised in a national election by lax mail voting standards in Pennsylvania, Michigan, Wisconsin, and Georgia:
The filing by Texas Attorney General Ken Paxton accuses government officials in the four states of using the COVID-19 pandemic to make changes to their states’ election laws through “executive fiat or friendly lawsuits, thereby weakening ballot integrity.” The state officials, Paxton writes, “flooded” their states with absentee ballots and “weakened the strongest security measures protecting the integrity of the vote-signature verification and witness requirements.” As a result, Paxton contends, the 2020 election “suffered from significant and unconstitutional irregularities in those four states” – for example, treating voters in Democratic areas more favorably than in other areas. When taken together, Paxton asserts, these flaws make it impossible to know who “legitimately won the 2020 election and threaten to cloud all future elections.”
During a Fox & Friends appearance on Wednesday, Paxton argued that the four states in question “did not follow their own state law,” so the remedy should be to “transfer this to the legislature ... and let them decide the outcome of the election.” (All four states in question have legislatures that are controlled by Republicans.)
On Fox & Friends, the Texas AG says his election lawsuit against 4 other states hopes to convince SCOTUS that they "did not follow their own state law," therefore "lets transfer this to the legislature ... and let them decide the outcome of the election." pic.twitter.com/7u6q65dzZS — Bobby Lewis (@revrrlewis) December 9, 2020
But the problem Paxton faces is the same one that has dogged all the legal challenges filed so far by Trump allies: There’s simply no evidence of significant irregularities. Elections officials in dozens of states spanning the red-to-blue spectrum have found no evidence of significant voter fraud marring the results. And they’ve looked.
“Charges of unfairness are serious. But calling an election unfair does not make it so,” wrote Trump-appointed Judge Stephanos Bibas while rejecting a Trump legal challenge to Pennsylvania’s results. That sentiment was echoed by a conservative justice on Wisconsin’s Supreme Court, Brian Hagedorn, who wrote in response to another failed Trump legal challenge, “Judicial acquiescence to such entreaties built on so flimsy a foundation would do indelible damage to every future election.”
Unsurprisingly, elections officials and lawyers active in the states being sued by Paxton are responding to his effort by mocking and ridiculing it.
Marc Elias, chair of the Perkins Coie Political Law group, which represents the Biden campaign, tweeted of the lawsuit, “No, I am not worried. No, this won’t succeed.”
NEW: Texas has filed a lawsuit against Pennsylvania, Wisconsin, Georgia and Michigan in the US Supreme Court seeking to invalidate their election results.
My answers to your questions:
✅No, I am not worried.
✅No, this won't succeed.
✅I have no idea.https://t.co/mAN98udwBi — Marc E. Elias (@marceelias) December 8, 2020
Georgia Attorney General Chris Carr, who chairs the Republican Attorneys General Association, said through a spokesperson that “with all due respect, the Texas Attorney General is constitutionally, legally and factually wrong about Georgia.” Along similar lines, Michigan Secretary of State Jocelyn Benson, a Democrat, tweeted, “This lawsuit seems to suggest that the voters of Michigan messed with Texas. They didn’t. Case closed.”
This lawsuit seems to suggest that the voters of Michigan messed with Texas.
They didn't.
Case closed. https://t.co/d07ksJTyTb — Jocelyn Benson (@JocelynBenson) December 8, 2020
While Trump hasn’t been shy about indicating publicly that he thinks the three Supreme Court justices he successfully nominated owe him something, the court’s quick one-sentence dismissal on Tuesday of Rep. Mike Kelly’s (R-PA) effort to prevent Pennsylvania from certifying Biden’s victory in the state indicated that the court’s conservative majority isn’t keen to involve themselves in Trump’s efforts to overturn his loss.
For Trump, however, desperate times call for desperate measures.
Trump isn’t even really pretending anymore
The backdrop for Trump’s embrace of the Texas gambit is his increasing brazenness about what he’s trying to do, which is overturn the results of an election he lost.
On Wednesday alone, the president posted a tweet exclaiming “RIGGED ELECTION,” another claiming (falsely) that “I received hundreds of thousands of legal votes more, in all of the Swing States, than did my opponent,” and a third lamenting that “If somebody cheated in the Election, which the Democrats did, why wouldn’t the Election be immediately overturned? How can a Country be run like this?”
These tweets came a day after Trump used a coronavirus vaccine event at the White House as an opportunity to undermine US elections while suggesting Biden might not be inaugurated as president next month.
"Well, we're gonna have to see who the next administration is ... hopefully the next administration will be the Trump administration ... we were rewarded with a victory" -- Trump is still lying about his election loss pic.twitter.com/amriO46DW9 — Aaron Rupar (@atrupar) December 8, 2020
While Trump wants people to believe his loss to Biden was tainted, his legal team hasn’t been able to produce any evidence. In fact, there have been more coronavirus cases among Trump’s top campaign lawyers (two — Rudy Giuliani and Jenna Ellis recently tested positive) than successful legal challenges brought by Trump’s allies (one).
Experts say Paxton’s lawsuit recycles flimsy allegations of irregularities from challenges that have already failed. For instance, University of Washington School of Law professor Lisa Marshall Manheim argued in the Washington Post of Paxton’s case that “it is an uninspired retread of the many state-level claims that already have imploded since Nov. 3. Texas has simply delivered these defective claims in an even worse package.”
Uninspired as it may be, Trump is clearly unable to discern good evidence from nonsense. On Wednesday, for instance, he cited the fact that betting sites briefly upgraded his odds of winning on election night — before many of the mail votes that Biden unsurprisingly dominated were tallied — as apparent evidence that he was the victim of a conspiracy. (Trump’s tweet is factually incorrect. His odds were never as high as he claimed.)
At 10:00 P.M. on Election Evening, we were at 97% win with the so-called “bookies”. — Donald J. Trump (@realDonaldTrump) December 9, 2020
While it’s unlikely that the Texas lawsuit gains traction, Trump’s refusal to concede has produced a fundraising bonanza for him and given his hardcore fans a reason to hold on to hope for at least a little bit longer.
Watching a bunch of pro-Trump media today and it's pretty universal: The new theory is that SCOTUS will take up the Texas case and allow state legislatures to replace the electors chosen by voters. Goalposts moving at mach 5 — Dave Weigel (@daveweigel) December 9, 2020
In the likely event that the Texas gambit fails, the result will feed into the “rigged election” narrative Trump has been pushing — one that could become his platform for a 2024 run. And if staying true to that story requires Trump to denigrate the Supreme Court as part of the “deep state,” then there’s little reason to believe he won’t go there.


vox--2020-12-09--Justice Alito emerges as a surprising voice of reason in a $124 billion housing case

It ’ s hard to exaggerate just how much is at stake in Collins v. Mnuchin , a case that the Supreme Court heard on Wednesday .
The plaintiffs in that case raise a $ 124 billion claim against the federal government , claiming that a federal agency , which was created to stabilize the housing market during the 2008 recession , acted illegally when it took certain actions to prevent mortgage finance giants Fannie Mae and Freddie Mac from collapsing .
One implication of the plaintiffs ’ arguments is that every action taken by the Federal Housing Finance Agency @ @ @ @ @ @ @ the heart of the Collins case , could be declared void .
Another implication is that agencies that are structured similarly to the FHFA , including the Consumer Financial Protection Bureau ( CFPB ) and the Social Security Administration , could also have years or even decades worth of work invalidated .
As Justice Elena Kagan noted at one point , the Social Security Administration has made 17 million separate decisions over the last quarter century , often involving questions of whether a particular individual is entitled to Social Security benefits .
All @ @ @ @ @ @ @ be declared invalid if the Court buys the plaintiffs ’ legal theory in Collins .
The sheer complexity of trying to “ unscramble the egg , ” as Justice Clarence Thomas put it at one point , would be hard to fathom .
President-elect Joe Biden would have to spend the better part of his first year in office trying to figure out how much of the government was just dismantled .
And financial transactions that may have prevented a second Great Depression would potentially have to be unraveled .
And yet , @ @ @ @ @ @ @ Collins , it appeared likely that a majority of the Supreme Court would light much of the government on fire and then walk away as if they were Heath Ledger ’ s Joker .
Justice Neil Gorsuch , in particular , spent much of the argument suggesting that every single action taken by the FHFA might be “ void.
” The turning point in the arguments , however , came after Justice Samuel Alito took his turn questioning plaintiffs ’ lawyer David Thompson .
Alito isn ’ t just a staunch conservative , @ @ @ @ @ @ @ on the Supreme Court .
But as the sheer enormity of what the plaintiffs were asking him to do sunk in , Alito seemed to rebel .
It was Alito who first warned that , if his Court buys the plaintiffs ’ arguments , that “ everything ever done ” by the leader of the Social Security Administration , over the last quarter century , might become void .
By the end , even Gorsuch appeared to be having second thoughts about whether he was the sort of man who just wants to @ @ @ @ @ @ @ remedial ask is a big one and hard for us to swallow , ” Gorsuch told Thompson late in the proceedings .
It is still possible that the Collins plaintiffs will receive some of the relief they are seeking ; perhaps the Supreme Court will send this case back down to a trial court to determine if some of the FHFA ’ s actions were unreasonable .
But there are probably not five votes to set off the kind of cascading governmental failures that the plaintiffs ’ arguments could trigger .
The FHFA @ @ @ @ @ @ @ , briefly explained The Collins plaintiffs are investors in the Federal National Mortgage Association ( otherwise known as “ Fannie Mae ” ) and the Federal Home Loan Mortgage Corporation ( otherwise known as “ Freddie Mac ” ) , two semi-private companies that were created by Congress to increase liquidity in the housing market .
In 2008 , FHFA became the primary federal agency overseeing Fannie and Freddie .
Fannie and Freddie buy home loans from banks and other lenders , pool these loans together , and then sell shares of these @ @ @ @ @ @ @ to private investors .
Mortgage-backed securities — especially securities compiled by private investment banks from especially risky mortgages — played a significant role in encouraging irresponsible behavior from lenders , and in triggering the 2008 recession .
But such securities also provide many benefits to homeowners and to the overall economy .
As the government argues in its Collins brief , Fannie and Freddie “ provide the lenders with additional funds that the lenders can then use to make additional loans ; and by bundling loans into securities backed by the enterprises ’ @ @ @ @ @ @ @ who might not otherwise have invested in mortgages—thereby expanding the pool of funds available for housing loans.
” Together , the two loan-backing companies own or guarantee about $ 5 trillion in mortgage assets , or about half of all home loans in the United States .
Because of their extraordinary exposure to the US housing market , both companies were on the verge of collapse after housing prices fell precipitously in the late 2000s .
Together , the companies lost $ 108 billion , more money than they ’ d earned in @ @ @ @ @ @ @ Fannie and Freddie collapsed , moreover , they likely would have taken the US housing market with them and triggered a global depression .
The FHFA was created as part of a broader effort to prevent such a catastrophe , and Congress gave the FHFA simply enormous authority over the two companies .
By law , the FHFA may “ take such action as may be .
.
.
necessary to put [ Fannie and Freddie ] in a sound and solvent condition ” and that is “ appropriate to carry on the @ @ @ @ @ @ @ and preserve and conserve the assets and property of ” Fannie and Freddie .
Shortly after its creation , the FHFA effectively took control of the two companies .
It then entered the companies into an agreement with the Treasury Department .
Under the original terms of this agreement , Fannie and Freddie could each draw up to $ 100 billion from the Treasury — and the agreement was amended twice to allow the two companies to draw even more money .
The agreement also obligated Fannie and Freddie to pay a recurring @ @ @ @ @ @ @ and the amount of this dividend grew as the two companies drew more public dollars .
Before long , however , Fannie and Freddie owed so much money to the federal government that they had to draw more money from the Treasury just to pay the dividends that they owed to the Treasury .
This situation was quite obviously unsustainable .
So , in 2012 , FHFA and the Treasury agreed to a third amendment to the agreement with Fannie and Freddie — an amendment that the Collins plaintiffs object to strenuously .
@ @ @ @ @ @ @ each company is allowed to hold up to $ 3 billion in capital .
Any money earned in excess of $ 3 billion , however , must be paid to the Treasury .
Thus , this amendment pulled the two companies out of a death spiral , where they were effectively borrowing new money to pay back what they owed on previous loans , but it also stripped each company ’ s ability to earn a profit for as long as the third amendment is in effect .
The Collins plaintiffs claim that @ @ @ @ @ @ @ an astonishing windfall of $ 124 billion , ” and they insist the third amendment must be invalidated — and that all the money that Fannie and Freddie paid to the government under that amendment must be credited back to the two companies .
The stakes in the Collins case go far beyond the $ 124 billion sought by the plaintiffs Among other things , the plaintiffs claim that the FHFA exceeded its statutory authority when it entered Fannie and Freddie into the amendment to its agreement with Treasury , and some of @ @ @ @ @ @ @ that the plaintiffs could prevail on this claim .
Justice Stephen Breyer , for example , suggested that maybe a lower court could hold a trial to determine whether the terms of that amendment are “ unreasonable.
” If that view ultimately prevails , the plaintiffs could potentially win some changes to the amended agreement after months or years of additional litigation .
The justices spent the bulk of their time , however , discussing the plaintiffs ’ constitutional claim — and the truly astonishing remedy that the plaintiffs seek for this alleged @ @ @ @ @ @ @ of a handful of federal agencies that is led by a single individual who can only be removed from their job “ for cause.
” Most federal agencies are led by a cabinet secretary or other senior official who can be fired by the president at any time and for any reason .
A few agencies , such as the Federal Reserve or the Federal Communications Commission , are led by a multi-member board whose members enjoy some protection against being fired .
Thus far , the Supreme Court has said that either @ @ @ @ @ @ @ But , in Seila Law v. Consumer Financial Protection Bureau ( 2020 ) , the Supreme Court held that the CFPB could not have a single director who can not be removed by the president at will .
It follows that other agencies led by a single individual with a degree of job security , such as the FHFA or the Social Security Administration , are also unconstitutional .
Fair enough .
But the FHFA has also operated for the last dozen years under the assumption that it has the lawful authority to @ @ @ @ @ @ @ power to oversee Fannie and Freddie .
What happens if this assumption was wrong ?
The Collins plaintiffs seek an extraordinary remedy .
They argue that the agency ’ s director must “ be appointed in the manner specified by the [ Constitution ] and subject to oversight by the President , ” and if this constraint is not met , “ the official ’ s actions ... must be set aside.
” Taken to its logical conclusion , this means that literally everything ever done by the FHFA is invalid ( the @ @ @ @ @ @ @ s worth , say that their preference is that the Court merely set aside the third amendment .
Though they also say they have “ no objection ” to a court order that invalidates Fannie and Freddie ’ s entire arrangement with the Treasury ) .
Moreover , because agencies like the CFPB and the Social Security Administration have a similar leadership structure , years ’ worth of actions by those agencies would also be invalid .
Several justices spent much of the oral arguments feeling around for whether there is any way @ @ @ @ @ @ @ the plaintiffs .
Justice Amy Coney Barrett , for example , asked several questions about the fact that the FHFA was led by an acting director when the third amendment took effect .
The law may permit a president to remove an acting director at will , even if a Senate-confirmed director can only be removed for cause .
That could set up a confusing set of circumstances where past actions taking by acting directors are valid , but actions taken by Senate-confirmed directors are not .
Ultimately , however , it was @ @ @ @ @ @ @ the sheer absurdity of what he and his colleagues were being asked to do .
Suppose , he asked plaintiff ’ s attorney Thompson , that the director of the FHFA checked in every day with the president to see if the president wanted the director to leave office .
“ Would it follow , ” Alito asked , “ that everything done thereafter by the director is void ?
” Alito ’ s point appeared to be that neither President Obama nor President Trump seemed bothered by the third amendment , or @ @ @ @ @ @ @ .
The reason why presidents should have the power to fire agency leaders , the Court explained in Seila Law , is so federal agencies remain democratically accountable by ensuring that agency leaders are “ subject to the ongoing supervision and control of the elected President.
” But if the president approves of an agency leader ’ s actions , then why should it follow that everything done by that leader is illegal ?
Shortly after Alito ’ s questions , Kagan floated a much more moderate way to resolve this case than @ @ @ @ @ @ @ “ we ’ re trying to figure out what position you would have been in absent a constitutional violation.
” Under Kagan ’ s proposed rule , the plaintiffs would have to show that the third amendment ( or any other action taken by FHFA ) would not have happened if the president had been able to remove the FHFA ’ s director at will .
Gorsuch , meanwhile , asked whether “ a new constitutionally correct director ” could “ ratify ” the FHFA ’ s past actions .
Under this approach @ @ @ @ @ @ @ new director ( or perhaps simply grant his blessing to the existing director ) who would immediately declare that everything that happened in the past was all fine and lawful .
One way or another , in other words , the Court appears likely to avoid the calamitous remedy sought by the Collins plaintiffs .
Though some members of the Court flirted with granting that remedy early on in the arguments , by the end , even Gorsuch , who initially appeared very eager to toss several agencies into chaos , seemed to @ @ @ @ @ @ @

It’s hard to exaggerate just how much is at stake in Collins v. Mnuchin, a case that the Supreme Court heard on Wednesday. The plaintiffs in that case raise a $124 billion claim against the federal government, claiming that a federal agency, which was created to stabilize the housing market during the 2008 recession, acted illegally when it took certain actions to prevent mortgage finance giants Fannie Mae and Freddie Mac from collapsing.
One implication of the plaintiffs’ arguments is that every action taken by the Federal Housing Finance Agency (FHFA), the agency at the heart of the Collins case, could be declared void. Another implication is that agencies that are structured similarly to the FHFA, including the Consumer Financial Protection Bureau (CFPB) and the Social Security Administration, could also have years or even decades worth of work invalidated.
As Justice Elena Kagan noted at one point, the Social Security Administration has made 17 million separate decisions over the last quarter century, often involving questions of whether a particular individual is entitled to Social Security benefits. All 17 million of these decisions could potentially be declared invalid if the Court buys the plaintiffs’ legal theory in Collins.
The sheer complexity of trying to “unscramble the egg,” as Justice Clarence Thomas put it at one point, would be hard to fathom. President-elect Joe Biden would have to spend the better part of his first year in office trying to figure out how much of the government was just dismantled. And financial transactions that may have prevented a second Great Depression would potentially have to be unraveled.
And yet, for much of the oral arguments in Collins, it appeared likely that a majority of the Supreme Court would light much of the government on fire and then walk away as if they were Heath Ledger’s Joker. Justice Neil Gorsuch, in particular, spent much of the argument suggesting that every single action taken by the FHFA might be “void.”
The turning point in the arguments, however, came after Justice Samuel Alito took his turn questioning plaintiffs’ lawyer David Thompson. Alito isn’t just a staunch conservative, he is the most reliable Republican partisan on the Supreme Court. But as the sheer enormity of what the plaintiffs were asking him to do sunk in, Alito seemed to rebel.
It was Alito who first warned that, if his Court buys the plaintiffs’ arguments, that “everything ever done” by the leader of the Social Security Administration, over the last quarter century, might become void.
By the end, even Gorsuch appeared to be having second thoughts about whether he was the sort of man who just wants to watch the world burn. “Your remedial ask is a big one and hard for us to swallow,” Gorsuch told Thompson late in the proceedings.
It is still possible that the Collins plaintiffs will receive some of the relief they are seeking; perhaps the Supreme Court will send this case back down to a trial court to determine if some of the FHFA’s actions were unreasonable. But there are probably not five votes to set off the kind of cascading governmental failures that the plaintiffs’ arguments could trigger.
The FHFA’s oversight of Fannie and Freddie, briefly explained
The Collins plaintiffs are investors in the Federal National Mortgage Association (otherwise known as “Fannie Mae”) and the Federal Home Loan Mortgage Corporation (otherwise known as “Freddie Mac”), two semi-private companies that were created by Congress to increase liquidity in the housing market. In 2008, FHFA became the primary federal agency overseeing Fannie and Freddie.
Fannie and Freddie buy home loans from banks and other lenders, pool these loans together, and then sell shares of these pooled loans as “mortgage-backed securities” to private investors. Mortgage-backed securities — especially securities compiled by private investment banks from especially risky mortgages — played a significant role in encouraging irresponsible behavior from lenders, and in triggering the 2008 recession. But such securities also provide many benefits to homeowners and to the overall economy.
As the government argues in its Collins brief, Fannie and Freddie “provide the lenders with additional funds that the lenders can then use to make additional loans; and by bundling loans into securities backed by the enterprises’ credit guarantees, the enterprises attract investors who might not otherwise have invested in mortgages—thereby expanding the pool of funds available for housing loans.”
Together, the two loan-backing companies own or guarantee about $5 trillion in mortgage assets, or about half of all home loans in the United States. Because of their extraordinary exposure to the US housing market, both companies were on the verge of collapse after housing prices fell precipitously in the late 2000s. Together, the companies lost $108 billion, more money than they’d earned in the previous 37 years combined.
Had Fannie and Freddie collapsed, moreover, they likely would have taken the US housing market with them and triggered a global depression. The FHFA was created as part of a broader effort to prevent such a catastrophe, and Congress gave the FHFA simply enormous authority over the two companies. By law, the FHFA may “take such action as may be . . . necessary to put [Fannie and Freddie] in a sound and solvent condition” and that is “appropriate to carry on the business” of the two companies “and preserve and conserve the assets and property of” Fannie and Freddie.
Shortly after its creation, the FHFA effectively took control of the two companies. It then entered the companies into an agreement with the Treasury Department. Under the original terms of this agreement, Fannie and Freddie could each draw up to $100 billion from the Treasury — and the agreement was amended twice to allow the two companies to draw even more money. The agreement also obligated Fannie and Freddie to pay a recurring “dividend” to the Treasury, and the amount of this dividend grew as the two companies drew more public dollars.
Before long, however, Fannie and Freddie owed so much money to the federal government that they had to draw more money from the Treasury just to pay the dividends that they owed to the Treasury. This situation was quite obviously unsustainable. So, in 2012, FHFA and the Treasury agreed to a third amendment to the agreement with Fannie and Freddie — an amendment that the Collins plaintiffs object to strenuously.
Under the terms of the amendment, each company is allowed to hold up to $3 billion in capital. Any money earned in excess of $3 billion, however, must be paid to the Treasury. Thus, this amendment pulled the two companies out of a death spiral, where they were effectively borrowing new money to pay back what they owed on previous loans, but it also stripped each company’s ability to earn a profit for as long as the third amendment is in effect.
The Collins plaintiffs claim that this amendment “netted the federal government an astonishing windfall of $124 billion,” and they insist the third amendment must be invalidated — and that all the money that Fannie and Freddie paid to the government under that amendment must be credited back to the two companies.
The stakes in the Collins case go far beyond the $124 billion sought by the plaintiffs
Among other things, the plaintiffs claim that the FHFA exceeded its statutory authority when it entered Fannie and Freddie into the amendment to its agreement with Treasury, and some of the justices appeared sympathetic to the possibility that the plaintiffs could prevail on this claim.
Justice Stephen Breyer, for example, suggested that maybe a lower court could hold a trial to determine whether the terms of that amendment are “unreasonable.” If that view ultimately prevails, the plaintiffs could potentially win some changes to the amended agreement after months or years of additional litigation.
The justices spent the bulk of their time, however, discussing the plaintiffs’ constitutional claim — and the truly astonishing remedy that the plaintiffs seek for this alleged constitutional violation.
The FHFA is one of a handful of federal agencies that is led by a single individual who can only be removed from their job “for cause.”
Most federal agencies are led by a cabinet secretary or other senior official who can be fired by the president at any time and for any reason. A few agencies, such as the Federal Reserve or the Federal Communications Commission, are led by a multi-member board whose members enjoy some protection against being fired. Thus far, the Supreme Court has said that either of these leadership structures are constitutional.
But, in Seila Law v. Consumer Financial Protection Bureau (2020), the Supreme Court held that the CFPB could not have a single director who cannot be removed by the president at will. It follows that other agencies led by a single individual with a degree of job security, such as the FHFA or the Social Security Administration, are also unconstitutional.
Fair enough. But the FHFA has also operated for the last dozen years under the assumption that it has the lawful authority to exercise its statutory authority, including its power to oversee Fannie and Freddie. What happens if this assumption was wrong?
The Collins plaintiffs seek an extraordinary remedy. They argue that the agency’s director must “be appointed in the manner specified by the [Constitution] and subject to oversight by the President,” and if this constraint is not met, “the official’s actions ... must be set aside.”
Taken to its logical conclusion, this means that literally everything ever done by the FHFA is invalid (the Collins plaintiffs, for what it’s worth, say that their preference is that the Court merely set aside the third amendment. Though they also say they have “no objection” to a court order that invalidates Fannie and Freddie’s entire arrangement with the Treasury). Moreover, because agencies like the CFPB and the Social Security Administration have a similar leadership structure, years’ worth of actions by those agencies would also be invalid.
Several justices spent much of the oral arguments feeling around for whether there is any way to limit the extraordinary relief sought by the plaintiffs. Justice Amy Coney Barrett, for example, asked several questions about the fact that the FHFA was led by an acting director when the third amendment took effect. The law may permit a president to remove an acting director at will, even if a Senate-confirmed director can only be removed for cause.
That could set up a confusing set of circumstances where past actions taking by acting directors are valid, but actions taken by Senate-confirmed directors are not.
Ultimately, however, it was Alito who threw up his hands at the sheer absurdity of what he and his colleagues were being asked to do. Suppose, he asked plaintiff’s attorney Thompson, that the director of the FHFA checked in every day with the president to see if the president wanted the director to leave office. “Would it follow,” Alito asked, “that everything done thereafter by the director is void?”
Alito’s point appeared to be that neither President Obama nor President Trump seemed bothered by the third amendment, or by the FHFA’s conduct generally. The reason why presidents should have the power to fire agency leaders, the Court explained in Seila Law, is so federal agencies remain democratically accountable by ensuring that agency leaders are “subject to the ongoing supervision and control of the elected President.” But if the president approves of an agency leader’s actions, then why should it follow that everything done by that leader is illegal?
Shortly after Alito’s questions, Kagan floated a much more moderate way to resolve this case than the remedy sought by the plaintiffs — “we’re trying to figure out what position you would have been in absent a constitutional violation.” Under Kagan’s proposed rule, the plaintiffs would have to show that the third amendment (or any other action taken by FHFA) would not have happened if the president had been able to remove the FHFA’s director at will.
Gorsuch, meanwhile, asked whether “a new constitutionally correct director” could “ratify” the FHFA’s past actions. Under this approach, President Biden could potentially appoint a new director (or perhaps simply grant his blessing to the existing director) who would immediately declare that everything that happened in the past was all fine and lawful.
One way or another, in other words, the Court appears likely to avoid the calamitous remedy sought by the Collins plaintiffs. Though some members of the Court flirted with granting that remedy early on in the arguments, by the end, even Gorsuch, who initially appeared very eager to toss several agencies into chaos, seemed to be looking for a way out.