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Aboy throws a brick through a bakeshop window. He flees and is never identified. The townspeople gather around the broken glass. “Well,” one of them says to the furious baker, “at least this will generate some business for the windowmaker!”

A reasonable statement? Not really. Although it is indeed a good day for the windowmaker, the money for the new window comes from the baker. Perhaps the baker was planning to use that money to buy a new suit. Now, instead of owning a window and a suit, he owns only a window. The windowmaker’s gain, meanwhile, is simply the tailor’s loss.

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On February 15, 2019, President Donald Trump issued Proclamation 9844 pursuant to the National Emergencies Act of 19761 (NEA), declaring a “National Emergency Concerning the Southern Border of the United States.” On February 27, the House of Representatives voted 245–182 to overturn the declaration of national emergency; on March 14, the Senate agreed with the House in a 59–41 vote. The following day, the President vetoed the joint resolution. Neither house of Congress was able to override the veto and so, more than a year later, the emergency remains in place.

The border wall emergency declared by President Trump has awakened strident opposition in Congress, which is a historical anomaly. And yet, although virtually none of the previous declarations engendered the vehement outcry that accompanied the border wall emergency declaration, they were substantially different only in scope, not in kind. Including Trump’s border wall emergency declaration and four subsequent emergency declarations, Presidents going back to Jimmy Carter have declared a total of 57 emergencies under the NEA. Thirty-four of these are still active. And all but four of them could hardly be called emergencies. Even without the partisan political context of the border wall dispute, any of these should have been sufficient to raise the question of whether and how to rein in presidential power.

The importance of testing and contact tracing to slow the spread of the novel coronavirus and resume normal life is now well established. The difference between the communities that do it and the ones that don’t is disturbingly grim (see, e.g., South Korea versus Italy). In a large population like the U.S., contact tracing and alerts will have to be done in an automated way with the help of mobile service providers’ geolocation data. The intensive use of data in South Korea has led many commenters to claim that the strategy that’s been so effective there cannot be replicated in western countries with strong privacy laws.

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The pandemic is serious. COVID-19 will overwhelm our hospitals. It might break our entire healthcare system. To keep the number of deaths in the low hundreds of thousands, a study from Imperial College London finds, we will have to shutter much of our economy for months. Small wonder the markets have lost a third of their value in a relentless three-week plunge. Grievous and cruel will be the struggle to come.

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In an area where it may seem that agreement is rare, there is near universal agreement on the benefits of withdrawing the DOJ’s 1984 Non-Horizontal Merger Guidelines. The 1984 Guidelines do not reflect current agency thinking on vertical mergers and are not relied upon by businesses or practitioners to anticipate how the agencies may review a vertical transaction. The more difficult question is whether the agencies should now replace the 1984 Guidelines and, if so, what the modern guidelines should say.

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This symposium discusses the “The Politicization of Antitrust.” As the invite itself stated, this is an umbrella topic that encompasses a wide range of subjects: from incorporating environmental or labor concerns in antitrust enforcement, to political pressure in enforcement decision-making, to national security laws (CFIUS-type enforcement), protectionism, federalism, and more. This contribution will focus on the challenges of designing a system that protects the open markets and democracy that are the foundation of modern economic and social development.

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Monday July 22, ICLE filed a regulatory comment arguing the leased access requirements enforced by the FCC are unconstitutional compelled speech that violate the First Amendment.

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ICLE submitted comments to the FCC on the First Amendment implications of the leased access rules. Associate Director, Legal Research Ben Sperry argued the changes in the video marketplace towards competition undercut the justification for subjecting regulation of cable operators’ speech to only intermediate scrutiny. As a result, the leased access rules should be reviewed as compelled speech under strict scrutiny. The leased access rules are not narrowly tailored to a compelling government interest and therefore would fail under the strict scrutiny standard.

Click here to read the full comments.

In the “News Roundup” of episode 269. A McLaughlin Group for Cybersecurity, Gus Hurwitz covers the Supreme Court’s ruling on when a forum is subject to First Amendment limits. The full episode is embedded below.

https://www.steptoe.com/podcasts/TheCyberlawPodcast-269.mp3