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Wednesday, August 7, 2024

Biden says he is not confident of peaceful transfer of power after election

 U.S. President Joe Biden said on Wednesday he was not confident about a peaceful transfer of power after the November presidential election.

"If Trump wins, no, I'm not confident at all. I mean, if Trump loses, I'm not confident at all," Biden said in an interview with CBS News.

https://www.marketscreener.com/news/latest/Biden-says-he-is-not-confident-of-peaceful-transfer-of-power-after-election-47588038/

Pfizer, Inc.: Daiwa Securities upgrades to outperform from neutral

 price target raised from USD 28 to USD 34.

https://www.marketscreener.com/quote/stock/PFIZER-INC-23365019/

Moderna, Inc.: Deutsche Bank downgrades to hold from sell

 target reduced from USD 85 to USD 80.

https://www.marketscreener.com/quote/stock/MODERNA-INC-47437573/

Amgen Inc.: Wells Fargo downgrades to equalweight from overweight

price target raised from USD 320 to USD 335.

https://www.marketscreener.com/quote/stock/AMGEN-INC-4847/

Jurisdiction-Stripping Or Court-Killing? "No Kings Act" Is Decapitation Of The Constitution

 by Jonathan Turley,

Senate Majority Leader Chuck Schumer (D., N.Y.) has introduced the “No Kings Act” with great fanfare and the support of most of his Democratic colleagues. Liberal groups have heralded the measure to legislatively reverse the ruling in Trump v. United States. 

It is obviously popular with the press and pundits. It is also entirely unconstitutional in my view.

The “No Kings Act” is not just a cynical abdication of responsibility by Democrats, but would constitute the virtual decapitation of the Constitution.

I have previously written about the false claims made about the Supreme Court’s decision by President Joe Biden, Vice President Kamala Harris and other leading democrats. The press and pundits have reached a new level of sensationalism and hysteria in the coverage with MSNBC’s Rachel Maddow even claiming that it was a “death squad ruling.”

The Trump Decision

The Court actually rejected the most extreme positions of both the Trump team and the lower courts.

As it has in the past, the Court adopted a three-tiered approach to presidential powers based on the source of a presidential action. Chief Justice John Roberts cited Youngstown Sheet and Tube Co. v. Sawyer, in which the court ruled against President Harry Truman’s takeover of steel mills.

In his famous concurrence to Youngstown, Justice Robert Jackson broke down the balance of executive and legislative authority between three types of actions. In the first, a president acts with express or implied authority from Congress. In the second, he acts where Congress is silent (“the zone of twilight” area). In the third, the president acts in defiance of Congress.

In this decision, the court adopted a similar sliding scale. It held that presidents enjoy absolute immunity for actions that fall within their “exclusive sphere of constitutional authority” while they enjoy presumptive immunity for other official acts. They do not enjoy immunity for unofficial or private actions.

Where the coverage has been wildly inaccurate, the No Kings Act is cynically dishonest.

To his credit, President Joe Biden was at least honest in proposing a constitutional amendment to overturn the decision in Trump.  However, that was dead on arrival in Congress since under Article V it would require a two-thirds majority vote in both houses and then ratification by three-fourths of the states.

The Democrats are seeking to circumvent that process with simple majority votes with the No Kings Act.

The bill is being presented as a jurisdiction-stripping measure, not an effort to dictate outcomes.

Congress does have authority to change the jurisdiction of the federal courts.  That authority was recognized by the Court itself in Ex parte McCardle (1869). Chief Justice Salmon Chase ruled that it did have the authority “to make exceptions to the appellate jurisdiction of this court.”

However, Chase also emphasized that the law did “not affect the jurisdiction which was previously exercised” so that prior decisions would remain fully enforceable.

Moreover, shortly after McCardle, the Court ruled in United States v. Klein (1871), that Congress may not use its authority of court jurisdiction to lay out a “rule of decision” for the Supreme Court, or effectively dictate results in court cases.

The No Kings Act

The No Kings Act does more than just strip jurisdiction and makes no secret of its purpose in dictating the outcome of future cases.

It purports in Section 2 to “clarify that a President or Vice President is not entitled to any form of immunity from criminal prosecution for violations of the criminal laws of the United States unless specified by Congress.”

That is a rather Orwellian view of “clarification” since it directly contradicts the opinion in declaring in the very next section that “[a] President, former President, Vice President, or former Vice President shall not be entitled to any form of immunity (whether absolute, presumptive, or otherwise) from criminal laws of the United States unless specified by Congress.”

Schumer and most of the Democratic senators actually believe that they can simply instruct lower courts to ignore a Supreme Court ruling on the meaning of the Constitution. It would undermine the basis of  Marbury v. Madison after 221 years.

To be sure, it is stated in strictly jurisdictional terms. Yet, it crafts the jurisdictional changes to mirror the decision and future immunity claims.

The bill declares that federal courts “may not consider whether an alleged violation of any criminal laws of the United States committed by a President or Vice President was within the conclusive or preclusive constitutional authority of a President or Vice President or was related to the official duties of a President or Vice President unless directed by Congress.”

But the Democrats are not done yet. Section 4 actually removes the Supreme Court from such questions and makes appellate courts the effective highest courts of the land when it comes to presidential immunity:

“The Supreme Court of the United States shall have no appellate jurisdiction, on the basis that an alleged criminal act was within the conclusive or preclusive constitutional authority of a President or Vice President or on the basis that an alleged criminal act was related to the official duties of a President or Vice President.”

Notably, this is one of the wacky ideas put forward by the President’s Supreme Court Commission. After all, why pack the Court if you can just gut it?

Of course, some sponsors like Elizabeth Warren (D., Mass.) want to both pack the Court and strip it of authority. Presumably, once packed, the authority to act as a court would be at least restored with the liberal majority.

By making the D.C. Circuit (where most of these cases are likely to be litigated) the highest court of the land on the question, the Democrats are engaging in the rawest form of forum shopping. The D.C. Circuit is expected to remain in the control of Democratic appointees for years. (The Act expressly makes the D.C. courts the only place to bring a civil action in this area and states that “a decision of the United States Court of Appeals for the District of Columbia Circuit shall be final and not appealable to the Supreme Court of the United States.”)

The Supreme Court of the United States shall have no appellate jurisdiction to declare any provision of this Act (including this section) unconstitutional or to bar or restrain the enforcement or application of any provision of this Act (including this section) on the ground of its unconstitutionality.

But wait there is more.

The No Kings Act reads like a fairy tale read by Democratic senators to their grandchildren at night. Not only would the evil conservative justices be vanquished by a lower court controlled by Democratic appointees, but the bill is filled with other wish list items from the far left. It would strip the Court of the ability to take other cases, to dismiss a criminal proceeding, to suppress evidence, and to grant a writ of habeas corpus, or “the Great Writ” that is the foundation of Anglo-American law for centuries.

The Democrats even legislatively dictate that any review of the law must meet a standard of its choosing. They dictate that “[a] court of the United States shall presume that a provision of this Act (including this section) or the enforcement or application of any such provision is constitutional unless it is demonstrated by clear and convincing evidence that such provision or its enforcement or application is unconstitutional.”  Thus, even the clear and convincing provision of the Act must be subject to a clear and convincing evidence review.

The Death of Marbury?

Again, Democrats are insisting that they are merely changing the jurisdiction of the Court and not ordering outcomes. However, the sponsors make clear that this is meant to “reaffirm that the President is not immune to legal accountability.” Sponsors like Sen. Sheldon Whitehouse (D., R.I.) declared that “Congress has the power to undo the damage of this decision” by a “captured Court.”

The greatest irony is that the Democrats are practically reverting to the position of critics of Marbury v. Madison, who argued that the Framers never intended the Supreme Court to be the final arbiter of what the law means. That principle has been the touchstone of American law since 1803, but the Democrats would now effectively revert to the English approach under the guise of jurisdiction stripping legislation. Before the Revolution, the Parliament could dictate what the law meant on such cases, overriding the courts. On a practical level, the Democrats would regress to that pre-Marbury approach.

Marbury introduced a critical stabilizing element in our system that contributed greatly to the oldest and most successful constitutional system in history. Democrats would now toss much of that aside in a spasm of partisan anger. Calling the No Kings Act a jurisdiction stripping bill does not conceal its intent or its implications for our system.

It is all a rather curious position for the party that claims to be defending the rule of law. The No Kings Act would constitute a radical change in our constitutional system to allow popular justice to be meted out through legislative fiat.

Sponsors like Sen. Jeanne Shaheen, D-N.H., previously promised a “revolution” if the conservatives did not rule as the Democrats demanded. They have now fulfilled those threats, though few expected that they would undo the work following our own Revolution.

Just to be sure that the sponsorship of this infamous legislation is not soon forgotten, here are the senators willing to adopt this Constitution-destroying measure:

Chuck Schumer (D-NY), Mazie Hirono (D-HI), Brian Schatz (D-HI), Ben Ray Luján (D-NM), Jack Reed (D-RI), Richard Blumenthal (D-CT), Tom Carper (D-DE), Peter Welch (D-VT), John Hickenlooper (D-CO), Bob Casey (D-PA), Chris Coons (D-DE), Jeanne Shaheen (D-NH), Tammy Baldwin (D-WI), Jeff Merkley (D-OR), Ben Cardin (D-MD), Dick Durbin (D-IL), Elizabeth Warren (D-MA), Patty Murray (D-WA), Chris Van Hollen (D-MD), Ed Markey (D-MA), Tammy Duckworth (D-IL), Amy Klobuchar (D-MN), Laphonza Butler (D-CA), Sheldon Whitehouse (D-RI), Bernie Sanders (I-VT), Cory Booker (D-NJ), Kirsten Gillibrand (D-NY), Ron Wyden (D-OR), Angus King (I-ME), Martin Heinrich (D-NM), Debbie Stabenow (D-MI), Alex Padilla (D-CA), Gary Peters (D-MI), and Raphael Warnock (D-GA).

*  *  *

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage” (Simon & Schuster).

https://www.zerohedge.com/political/jurisdiction-stripping-or-court-killing-no-kings-act-decapitation-constitution

'Do Not Fly' Alert Over Iran Issued For Airlines During Oddly Specific Night Hours

 Egypt has just issued a rare and oddly specific NOTAM, or Notice to Air Missions alert, instructing all of its airlines to avoid Iranian airspace for a 3-hour period in the overnight and early morning hours of Thursday. Some other countries have since followed in issuing similar do not fly alerts, including the UK.

"All Egyptian carriers shall avoid overflying Tehran. No flight plan will be accepted overflying such territory," the notice says. Specifically the instructions are valid from 01:00 to 04:00GMT (or 9pm to 12am US Eastern). Will the big expected Iranian retaliation be tonight? Zero hour may be approaching fast.

NOTAMS alert aircraft pilots to potential hazards along flight paths, and are internationally recognized among aviation authorities.

Reuters has picked up on and reported the NOTAM as well, saying based on Egyptian government sources that Cairo was notified by Iranian authorities that airlines should avoid traversing Iranian airspace due to overnight "military exercises"

According to the citation in Reuters:

"Based on a report from Iranian authorities to all civil aviation companies, flights over Iranian airspace are to be avoided," the unnamed official was quoted as saying.

Many airlines are revising their schedules to avoid Iranian and Lebanese airspace while also calling off flights to Israel and Lebanon as many fear a possible broader conflict after the killing of senior members of militant groups Hamas and Hezbollah.

A flight risk monitor identified as OPSGROUP has further told the same publication that "Such a NOTAM from Egypt is very unusual."

The aviation industry group explained further that "It is possible that this is an indicator of an Iranian response to Israel, and in turn a potentially large set of air space disruptions - at the same time, there may be another reason."

Iran on Wednesday had called an emergency meeting of the 57-member Organization of Islamic Cooperation (OIC), which met in the Saudi city of Jeddah. 

An OIC statement said the assassination of Hamas leader Ismail Haniyeh on Iranian soil on July 31st risks sparking a wider war. "This heinous act serves only to escalate the existing tensions potentially leading to a wider conflict that could involve the entire region," the OIC chair said. Haniyeh’s killing "will not quell the Palestinian cause but rather it amplifies it, underscoring the urgency for justice and human rights for the Palestinian people," it added.

Amid several days of an anticipated major Iranian response against Israel, once it was known earlier in the week that the Islamic Cooperation council meeting had been called for Wednesday, most analysts took that as a sign that ballistic missiles wouldn't be flying at least until then. But with the meeting now concluded, tonight could be the night.

https://www.zerohedge.com/geopolitical/do-not-fly-alert-over-iran-issued-airlines-during-oddly-specific-night-hours

'Traders lose billions on big volatility short after stocks rout'

 A wager that stock markets would stay calm has cost retail traders, hedge funds and pension funds billions after a selloff in global stocks, highlighting the risks of piling into a popular bet.

The CBOE VIX index, which tracks the stock market's expectation of volatility based on S&P 500 index options, posted its largest-ever intraday jump and closed at its highest since October 2020 on Monday as U.S. recession fears and a sharp position unwind have wiped off $6 trillion from global stocks in three weeks.

Investors in 10 of the biggest short-volatility exchange traded funds saw $4.1 billion of returns erased from highs reached earlier in the year, according to calculations by Reuters and data from LSEG and Morningstar.

These were bets against volatility that made money as long as the VIX, the most-watched gauge of investor anxiety, remained low.

Wagers on volatility options became so popular that banks, in an effort to hedge the new business they were receiving, might have contributed to market calm before the trades suddenly turned negative on Aug. 5, investors and analysts said.

Billions flew in from retail investors but the trades also garnered the attention of hedge funds and pension funds.

While the total number of bets is difficult to pin down, JPMorgan estimated in March that assets managed in publicly traded short volatility ETFs roughly totaled $100 billion.

"All you have to do is just look at the intra-day rate of change in the VIX on Aug. 5 to see the billions in losses from those with short vol strategies," said Larry McDonald, author of How to Listen When Markets Speak.

But McDonald, who has written about how bets against volatility went wrong in 2018, said publicly available data on ETF performance did not fully reflect losses incurred by pension funds and hedge funds, which trade privately through banks.

On Wednesday, the VIX had recovered to around 23 points, well off Monday's high above 65, but holding above levels seen just a week ago.

VOLATILITY'S RISE

One driver behind the trading strategy's popularity in recent years has been the rise of zero-day expiry options - short-dated equity options that allow traders to take a 24-hour bet and collect any premiums generated.

Starting in 2022, investors including hedge funds and retail traders, have been able to trade these contracts daily instead of weekly, allowing more opportunities to short volatility while the VIX was low. These contracts were first included in ETFs in 2023.

Many of these short-term options bets are based around covered calls, a trade that sells call options while investing in securities such as U.S. large-cap stocks. As stocks rose, these trades earned a premium as long as market volatility remained low and the bet looked likely to succeed. The S&P 500 rose over 15% from January to July 1 while the VIX fell 7%. Some hedge funds were also taking short volatility bets through more complicated trades, two investor sources told Reuters.

A popular hedge-fund trade played on the difference between the low volatility on the S&P 500 index compared to individual stocks that approached all-time highs in May, according to Barclays research from that time.

Hedge-fund research firm PivotalPath follows 25 funds that trade volatility, representing about $21.5 billion in assets under management of the roughly $4-trillion industry.

Hedge funds tended to bet on a VIX rise, but some were short, its data showed. These lost 10% on Aug. 5 while the total group, including hedge funds that were short and long volatility, had a return of between 5.5% and 6.5% on that day, PivotalPath said.

'DAMPENED VOLATILITY'

Banks are another key player standing in the middle of these trades for their larger clients.

The Bank of International Settlements in its March quarterly review suggested that banks' hedging practices kept Wall Street's fear gauge low.

Post-2008 regulations limit banks' ability to warehouse risk, including volatility trades. When clients want to trade price swings, banks hedge these positions, the BIS said. This means they buy the S&P when it falls and sell when it rises. This way, big dealers have "dampened" volatility, said the BIS.

In addition to hedging, three sources pointed to occasions where banks hedged volatility positions by selling products that allowed the bank to even out its trades, or remain neutral.

Marketing documents seen by Reuters show that Barclays , Goldman Sachs and Bank of America this year were offering complex trade structures, which included both short- and long-volatility positions.

Some, according to the documents, do not have a constant hedge built into the trade to buttress against losses and are protected "periodically," the papers say. This might have exposed investors to higher potential losses as the VIX spiked on Aug. 5.

Barclays and Bank of America declined to comment. Goldman Sachs did not immediately respond to a request for comment.

"When markets were at near highs, complacency became rife, so it’s not surprising investors, largely retail, but also institutional, were selling volatility for the premium," said Michael Oliver Weinberg, professor at Columbia University and special advisor to the Tokyo University of Science.

"It’s always the same cycle. Some exogenous factor causes markets to sell off. Those that were short vol will now be hit with losses," he said.

https://www.marketscreener.com/quote/stock/THE-GOLDMAN-SACHS-GROUP-I-12831/news/Traders-lose-billions-on-big-volatility-short-after-stocks-rout-47586289/