The US Supreme Court’s coming war with Joe Biden, explained

The Supreme Court is poised to give itself a veto power over much of the Biden administration’s authority.

By Ian Millhiser Mar 27, 2021

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One of Justice Antonin Scalia’s final acts was to strike down President Obama’s plan to stave off the climate crisis.

On February 9, 2016 — the last Tuesday of Scalia’s life — the Supreme Court handed down an unexpected order announcing a stay of the Environmental Protection Agency’s carbon emissions rules for many power plants. The vote was 5-4, along party lines, with Scalia joining his fellow conservatives in the majority.

This essay is adapted from the author’s book.

The environmental regulations blocked by this order were commonly known as the Clean Power Plan, and they were the Obama administration’s most ambitious effort to fight climate change. Had the Clean Power Plan taken effect, the EPA predicted that by 2030 it would have reduced overall carbon dioxide emissions from utility power plants 32 percent from where they were in 2005.

But the Clean Power Plan never took effect. Though the Supreme Court’s order halting the plan was temporary, Donald Trump’s 2016 victory all but ensured that it would not be revived. Even if the Trump administration hadn’t replaced this Obama-era policy with a significantly weaker rule, the appointment of Neil Gorsuch to fill Scalia’s vacant seat signaled the Supreme Court would be highly likely to strike down the Clean Power Plan permanently if given the chance.

The problem for Democrats is that the legal defeat of the Clean Power Plan is likely not a one-off. This fight over the federal government’s power to address a slow-moving catastrophe is just one battle in a multi-front war over federal agencies’ power to regulate. As Stephen Bannon, then the White House’s chief strategist, told the Conservative Political Action Conference a month after Trump took office, one of the Trump administration’s primary goals would be “deconstruction of the administrative state.”

Enter the Roberts Court, fortified by Trump’s appointees. With six conservative justices, the Court has the votes it needs to make Bannon’s goal a reality — and at least five members of the Supreme Court have already endorsed a plan to erase much of the executive branch’s authority.

It wasn’t always this way. In the late 1980s, Justice Scalia was one of the Court’s staunchest defenders of a strong administrative state. Presidents Ronald Reagan and George H.W. Bush delivered three landslide victories in a row to Republicans, and the GOP was at the apex of its ability to gain power the old-fashioned way — by winning elections.

So conservatives benefited from court decisions that gave the Reagan and Bush administrations broad leeway to set federal policy. Both administrations could use this leeway to deregulate

.

President Ronald Reagan talking to then-Supreme Court Justice nominee Antonin Scalia in the Oval Office, circa 1986. Smith Collection/Gado via Getty Images

President George W. Bush and then-federal appeals court Judge John Roberts in 2005. Brooks Kraft/Corbis via Getty Images

But the right’s approach to federal agencies shifted drastically during the Obama administration. With the GOP’s grip on the presidency waning at the very same time that they had a firm hold on the judiciary, conservatives had an obvious interest in increasing the judiciary’s power to strike down new rules pushed by federal agencies. By Obama’s second term, the conservative Federalist Society’s national lawyers convention became a showcase of proposals to deconstruct the administrative state.

All of this culminated in Justice Neil Gorsuch’s opinion in Gundy v. United States (2019), which called for strict new limits on federal agencies — and for the judiciary to even strike down many federal regulations as unconstitutional. Though Gorsuch’s opinion was a dissent — that is, he didn’t yet have a majority for it — five justices now on the Court have largely endorsed his framework, which relies on a conservative legal principle known as “nondelegation.”

In other words, it may be only a matter of time before the Court starts striking down Biden administration regulations that rely on legal arguments that would have been treated as nonsense just a decade ago.

At least since the Franklin Roosevelt administration, federal agencies have had wide latitude to implement the policies the president campaigned on. And agency-initiated regulations answer such important questions as who has access to health care, how much workers are paid for their labor, and a wide range of environmental questions that go well beyond the Clean Power Plan.

So, no matter what issue you care about, there is likely a federal regulation that shapes the nation’s approach to that issue. If the Supreme Court strips the government of much of its power to promulgate these regulations, it could effectively grind down the Biden presidency — not to mention dismantle much of American law.

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Federal regulation, explained

Before we can understand how the Supreme Court might remake the balance of power between the executive and the judiciary, it’s important to understand what it means for a federal agency to regulate.

As a general rule, Congress can regulate businesses in two ways.

The most straightforward approach is simply to command industries to conduct their business in a certain manner. Thus, if Congress wants to reduce certain polluting emissions, it could enact a law that orders power plants to use a particular technology that reduces emissions.

But Congress is a slow-moving body, and federal laws are difficult to amend. If, in the 1970s, Congress had commanded power plants to use the best emissions reduction technology that existed at the time, it could have potentially locked these plants into using obsolete tech that is vastly inferior to the technology available now. At a minimum, Congress would have struggled to stay on top of new developments and to update this law as new methods of reducing emissions were invented.

For this reason, Congress may also regulate businesses in a second way. It can pass a law that lays out a broad federal policy but leave the details of how to implement that policy up to a federal agency. Often, such delegation means giving that agency a fair amount of authority to determine how businesses operate, so long as the agency uses this authority to advance the policy goal enacted by Congress.

When Congress wrote the Clean Air Act, for example, it made sure that the rules governing power plants could evolve as technology improves. Under this law, power plants must update their systems for reducing emissions to ensure that they achieve the same “degree of emission limitation achievable through the application of the best system of emission reduction” that currently exists, while also accounting for factors such as cost.


Congress also gave the job of figuring out what the “best system of emission reduction” is at any particular moment to the EPA administrator. As a practical matter, that means that EPA employees who are experts on environmental regulation and the energy industry will study which new technology is available and will update the rules governing power plants as that technology evolves.

And that’s exactly what EPA did when it created the Clean Power Plan. EPA determined that, to achieve the “best system of emission reduction,” at least some energy companies would need to shift from fairly dirty coal-fired electricity production to cleaner methods such as natural gas, or to renewable methods that result in no emissions at all.

Rules such as this one, which are promulgated by a federal agency pursuant to a federal law permitting them to do so, are known as “regulations.” When Bannon spoke of deconstructing the administrative state, or when the Federalist Society showcased proposals to diminish the executive branch’s authority, a major thrust of that project involved stripping agencies of much of their ability to regulate.

Ideally, laws like the Clean Air Act make complex lawmaking possible without having to sacrifice democratic accountability. Regulation allows our laws to be both democratic and dynamic. Such laws are democratic because the goals of federal policy — goals such as ensuring that power plants use the best emission reduction technology available — are still set by the people’s elected representatives in Congress. But they are dynamic because it allows federal rules to be updated without requiring Congress to enact a new law every time a new innovation is developed.

Yet, despite these advantages, the very idea that Congress should be free to delegate power in this way has many enemies within the conservative legal movement. In a 2016 opinion, for example, then-Judge Gorsuch wrote that two foundational Supreme Court decisions preserving agencies’ ability to regulate “permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.”

After his elevation to the Supreme Court, Gorsuch called for strict new limits on the federal government’s power to regulate in his Gundy opinion. And since then, five members of the Court’s Republican-appointed majority have signaled, albeit in two different cases, that they agree with Gorsuch’s plans to restrict agency power.

Judge Neil Gorsuch delivers brief remarks after the announcement of his nomination to the Supreme Court on January 31, 2017. Alex Wong/Getty Images

Gorsuch and his allies do not simply view Congress’s power to delegate rulemaking authority to agencies as undesirable. They view broad delegations of power as inconsistent with the Constitution itself. And their narrow vision of federal power has profound implications for workers, consumers, patients, and the environment.
The future of federal regulation

There’s a name for this vision that Gorsuch and the Court’s conservatives are invoking: “nondelegation.”

Nonedelegation is the largely defunct idea that the Constitution places strict limits on Congress’s ability to delegate power to federal agencies. Although the Supreme Court briefly wielded the nondelegation doctrine to strike down New Deal policies that gave a simply extraordinary amount of regulatory power to President Roosevelt, this doctrine largely lay dormant for generations. And the Court’s decisions prior to Gundy emphasized just how reluctant courts should be to strike down laws permitting agencies to regulate.

Longstanding Supreme Court precedents hold that Congress has a broad authority to delegate power. As the Court explained in Mistretta v. United States (1989), “in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.”

Thus, the Court has explained, Congress may delegate regulatory power to agencies so long as it “shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform.”

While Reaganism was ascendant, conservative judges were often the biggest cheerleaders for broad judicial deference to federal agencies, frequently justifying such deference as a way to keep an unelected judiciary from undercutting democracy. As then-Judge Kenneth Starr wrote in a 1986 article on administrative law, “in part because federal judges are not directly accountable to any electorate, I believe they have a duty voluntarily to exercise ‘judicial restraint.’”

But these conservative calls for judicial restraint have since been replaced with bold demands for judicial intervention against federal agencies once Reaganism faded and Obama’s liberalism gained steam. A new conservative approach to administrative law, which seeks to concentrate power within a judiciary dominated by Republican appointees, is now ascendant.

In early October 2019, just a few days before Justice Brett Kavanaugh was confirmed to the Supreme Court, the eight remaining justices heard Gundy v. United States (2019), a case brought by a convicted sex offender who challenged his conviction for failing to register as a sex offender when he moved to New York. Herman Gundy’s case went after a federal statute that allowed the Justice Department to determine which sex offenders, who were convicted before a certain date, had to register with their state governments (the Justice Department determined that all eligible offenders must register).

Gorsuch used his opinion in Gundy to criticize the longstanding rule laid out in cases like Mistretta. Warning that permitting Congress to delegate power to agencies risks giving those agencies “unbounded policy choices,” Gorsuch proposed a vague new limit on Congress’s power to delegate.

According to Gorsuch, delegations of power to agencies must be struck down unless Congress put “forth standards ‘sufficiently definite and precise to enable Congress, the courts, and the public to ascertain’ whether Congress’s guidance has been followed.”

This vague new standard is inconsistent with the framers’ understanding of the Constitution. As explained below, early American lawmakers — many of whom were the same people who drafted the Constitution — delegated tremendous power to executive branch officials.

And Gorsuch’s rule would effectively consolidate an enormous amount of power within the judiciary.

As a practical matter, when the Supreme Court hands down a vague and open-ended legal standard like the one Gorsuch articulated in his Gundy opinion, the Court is shifting power to itself. What does it mean for a statute to be “sufficiently definite and precise” that the public can “ascertain whether Congress’s guidance has been followed”?


The answer is that the courts — and, ultimately, the Supreme Court — will decide for themselves what this vague language means. The courts will gain a broad new power to strike down federal regulations, on the grounds that they exceed Congress’s power to delegate authority.

In theory, that could mean that federal regulations will simply receive more scrutiny from an impartial judiciary. But, in practice, the judiciary is only as good as the judges who staff it. If five justices get behind it, the nondelegation doctrine would give a Republican supermajority on the Supreme Court the ability to veto nearly any regulation handed down by a Democratic administration.

Supreme Court Justices Brett Kavanaugh and Amy Coney Barrett arrive for the inauguration of President Joe Biden on January 20, 2021. Jonathan Ernst-Pool/Getty Images

It should be noted that Gorsuch’s opinion in Gundy was a dissent — the opinion was joined only by Chief Justice John Roberts and Justice Clarence Thomas. But Justices Samuel Alito and Kavanaugh have both signaled in other opinions that they share Gorsuch’s desire to revive the nondelegation doctrine.

And in Little Sisters v. Pennsylvania (2020), five justices signed on to an opinion by Justice Thomas, which strongly suggests that many of the Affordable Care Act’s (ACA) provisions requiring health insurers to provide a minimum level of coverage to their customers are unconstitutional under the nondelegation doctrine.

Little Sisters considered a provision of the ACA allowing a federal agency to determine which forms of “preventive care and screenings” for women must be covered without copays or other out-of-pocket costs by health insurers. Among other things, the agency determined that contraceptive care must be covered.

Yet Thomas’s majority opinion strongly suggests that this provision of the Affordable Care Act violates the nondelegation doctrine. He accuses Congress of giving “virtually unbridled discretion to decide what counts as preventive care and screenings” to a federal agency. Thomas’s decision lays the groundwork for the Supreme Court to eventually strike down the requirement that health insurers cover birth control (and possibly other, similarly worded provisions of Obamacare requiring coverage of immunizations and pediatric care).

Indeed, in late February, a conservative federal judge in Texas cited Little Sisters to suggest that multiple provisions of the ACA may be unconstitutional under the nondelegation doctrine.

And it won’t be just the ACA. Literally any regulation pushed during the Biden presidency, dealing with a wide range of matters from the fight against climate change to the protection of workers, could be vetoed by a Republican Supreme Court under this doctrine.
The constitutional arguments for the nondelegation doctrine are quite weak

This consolidation of power within a conservative judiciary could happen despite the fact that the nondelegation doctrine rests on the thinnest of constitutional reeds.

The Constitution gives Congress the “legislative” power, and the president and the various federal agencies that answer to the president the “executive” power.

The legislative power, according to Gorsuch, is the power to “adopt generally applicable rules of conduct governing future actions by private persons.” And proponents of nondelegation claim that the Constitution places strict limits on Congress’s ability to delegate this power to agencies merely tasked with executing existing laws.

Often, proponents of the nondelegation doctrine quote a passage from the political philosopher John Locke, who claimed that “the legislative cannot transfer the power of making laws to any other hands; for it being but a delegated power from the people, they who have it cannot pass it over to others.”

But there are many problems with this account of Congress’s ability to delegate power. For one thing, it misunderstands Locke. As law professors Julian Davis Mortenson and Nicholas Bagley note in an important paper, Locke draws a distinction between the legislature’s ability to “transfer” power and a “delegated” power.

Transferring a power requires a “permanent alienation” — that is, for Congress to “transfer” legislative power, it would have to give up that power forever to some other person or body. But Locke raised no objection to a legislature delegating a power, meaning that lawmakers may assign the ability to make certain binding rules to an agency, so long as the legislature retains the ability to take that power back.

Indeed, if anything, Locke’s quote undercuts the argument for the nondelegation doctrine because it recognizes that the legislative power has already been delegated once — to the legislature itself. Locke describes the power to make laws as “a delegated power from the people.” That is, it is the people, not the Congress or some other representative body, that has the inherent power to make rules that bind the whole of society. When the Constitution created Congress, it delegated the people’s power to make laws to that Congress. And Congress may, in turn, delegate a portion of that power to federal agencies.

Congress’s early history supports this reading of the Constitution, as the very first Congress enacted numerous laws giving vast discretion to other government officials. It allowed officials overseeing the Northwest Territory to “adopt and publish in the district, such laws of the original States, criminal and civil, as may be necessary, and best suited to the circumstances of the district.”

And it delegated Congress’s entire power to provide patents to inventors to executive branch officials, allowing the secretary of state, the secretary of war, or the attorney general to grant patents so long as they “deem the invention or discovery sufficiently useful or important.”

The First Congress didn’t simply give executive branch officials the power to issue licenses that would allow merchants to trade with Native American tribes, it also allowed the executive to promulgate regulations that would govern license holders “in all things touching the said trade and intercourse.”

The First Congress allowed the president to identify wounded or disabled soldiers, and to place them on “the list of the invalids of the United States, at such rate of pay, and under such regulations, as shall be directed by the President of the United States, for the time being.”

And it delegated to “any common law court of record” the power to grant citizenship to any free white person who resided in the country for two years, provided that the court was satisfied that the new citizen is a “person of good character.”

So the framers understood the Constitution to allow Congress to grant broad authority to federal agencies, and the position outlined by Gorsuch’s opinion in Gundy and Thomas’s opinion in Little Sisters is tough to square with this history.

But in the Supreme Court of the United States, history and constitutional text matter little if a party has five votes. And the nondelegation doctrine almost certainly has five votes.

President Biden will hardly be the first president to face lawsuits challenging his administration’s regulations. But he is likely to be the first president since Roosevelt to face a judiciary that’s so eager to rein in agency power.

Al Drago/Getty Images

This essay is adapted from the author’s book, The Agenda: How a Republican Supreme Court Is Reshaping America.

'Is this patriot enough?' Asian-American Army veteran protests racism by displaying wounds from military service during a town hall meeting

Sophia Ankel
3/28/2021

Lee Wong shows off his scars at a meeting in West Chester Township, 

on March 23, 2020. West Chester Board of Trustees


An Asian-American Army veteran showed his scars in a board meeting to prove his patriotism.

Ohio township trustee Lee Wong used his speech to criticize anti-Asian violence.

The impromptu moment came after several racially-motivated attacks against Asian-Americans.


An AsianAmerican government official revealed his military scars during a town hall meeting on Tuesday to protest the recent wave of racially-motivated attacks in the country.

During a meeting of the West Chester Township, Ohio, Board of Trustees, chairman Lee Wong, 69, lifted his shirt and showed his scars to prove his "patriotism," NBC News reported. Wong served in the US Army for 20 years.

Footage of the moment, which has gone viral on social media, shows Wong unbuttoning his shirt while speaking about how tired he is of the Anti-Asian rhetoric he's witnessed in America.

"Don't get me wrong, people love me in this community and I love them, too, but there are some ignorant people that would come up to me and say that I don't look American enough or patriotic enough," Wong says in the video, according to the BBC. "I'm not afraid. I don't have to live in fear."


The 69-year-old then stands up and raises his undershirt, revealing a big, dark scar across his chest.

"Here is my proof. This is sustained through my service in the U.S. military," he says to the room. "Now, is this patriot enough?"

"Prejudice is hate, and that hate can be changed," Wong continued. "We are human. We need to be kinder, gentler, to one another."

Watch the powerful moment below.

Wong's powerful statement comes in the aftermath of several racially-motivated attacks across the country.

Last week, eight people — six of whom were Asian women — were killed in a shooting in Atlanta, Georgia.

According to research published by Stop AAPI Hate on Tuesday, nearly 3,800 anti-Asian racist incidents were reported over the course of the pandemic in the US. Women made up 68% of these reports.

Wong, who came to the US from China at the age of 18, describes himself as a moderate Republican, according to NBC News.


Wong served from 1975 to 1995 and sustained his injuries at Fort Jackson in South Carolina, Mail Online reported.

He has served more than one term as the president of the board of trustees of the Ohio town, where more than 90 percent of the population of 66,000 is White, according to MEAWW.

An Asian-American Official Bared His Chest, Revealing Scars From His Army Service

“People question my patriotism, that I don’t look American enough,” Lee Wong, an elected official in an Ohio township, said at a recent public meeting.

Lee Wong, an elected official in West Chester, Ohio, said he could no longer endure the indignities of prejudice against Asian-Americans, or people questioning his loyalties to America.Credit...West Chester Board of Trustees meeting

By Neil Vigdor

NYT
March 28, 2021

As town meetings go, the discussion was fairly routine, meandering from what Memorial Day celebrations might look like in the second year of the coronavirus pandemic, to a federal grant application for bulletproof vests for police officers.

But when the time came for the trustees in West Chester Township, Ohio, to deliver personal remarks at the group’s most recent meeting, the board’s chairman, Lee Wong, who is Asian-American, did something unusual.

Mr. Wong removed his suit jacket and his tie and unbuttoned his dress shirt, according to a video of the board’s March 23 meeting, which has since drawn widespread attention. Then, he lifted his undershirt, revealing scars on his chest that he said he got while serving in the U.S. Army.

Mr. Wong, 69, said he could no longer endure the indignities of prejudice against Asian-Americans or having people question his loyalties to America.

“Here is my proof,” he said. “Now is this patriot enough? I’m not ashamed to walk around anymore. Before I was inhibited. People looked at me strange.”

It was the board’s first meeting since March 16, when a gunman killed six women of Asian descent in a series of attacks on massage businesses in the Atlanta area, leaving eight people dead.

Prosecutors are weighing whether to classify the shootings as a hate crime, but the rampage came amid a rise in violent crimes targeting people of Asian descent across the United States, which advocates say has been exacerbated by pandemic-related racism.

Mr. Wong immigrated to the United States from the island of Borneo in 1971, according to a profile about him in The Cincinnati Enquirer last year when he ran unsuccessfully for the State Senate.

He is a Republican, though the township board is a nonpartisan body, The Enquirer reported. He was first elected to the board in West Chester Township, a northern suburb of Cincinnati, in 2005.

About halfway through the board’s meeting, Mr. Wong said he would depart from protocol and had something that he wanted to share.

He said he came to the United States when he was 18 and once had been assaulted in a racially motivated attack in Chicago. For too long, Mr. Wong said, he had put up with racism but had been too afraid to speak out because he feared facing more discrimination and abuse.

“In the last few years, things are just getting worse and worse,” he said. “There are some ignorant people that will come up to me and say that I don’t look American or patriotic enough. Now, that really gets my goat.”

What to Know About Gun Laws and Shootings in the U.S.

In the last five years, there have been at least 29 shootings in the United States with four or more fatalities, according to data compiled by the Violence Project. The number of overall injuries from firearms reached a 50-year high in 2017, with nearly 40,000 people killed.

Americans make up about 4.4 percent of the global population but own 42 percent of the world’s guns. Research shows that 31 percent of mass shootings worldwide from 1966 to 2012 were committed by Americans.

The Times examined how weapons were obtained in 19 shootings from 2009 to 2018. Many of the guns used in mass shootings are bought legally and with a federal background check.

At the state level, there is a checkerboard of gun laws that align with the partisan tilt of each state. While 13 Democratic-controlled states have restricted gun access in recent years, 14 Republican states have loosened their gun laws.

He said that Asian-Americans had been subjected to widespread prejudice, particularly restaurant workers.

“They are hard-working Americans,” he said. “Some even served in the U.S. armed forces — not Chinese army. U.S. Army.”

Noting that he had been a U.S. citizen for quite some time, Mr. Wong said that he had served in the U.S. Army for 20 years. He got the scars while serving at Fort Jackson in South Carolina, The Journal-News of Hamilton, Ohio, reported.

Efforts to reach Mr. Wong on Sunday were not immediately successful, but he told CNN that he got the scars after undergoing multiple surgeries for cuts that got infected during combat training.

“People question my patriotism, that I don’t look American enough,” Mr. Wong said at the meeting. “They cannot get over this face.”

Mr. Wong said the country had significant work to do to address bigotry.

“You know prejudice is hate,” he said. “We need to be kinder, gentler to one another, because we are all the same. We are one human being on this earth.”

BOURGEOIS ECONOMICS


THE DEEPEST RECESSION, BUT ALSO EASILY THE WEIRDEST

Posted by David Smith 
Category: David Smith's other articles
Previous » Now the economy braces for the shock of the new normal
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Sunday, March 21, 2021

My regular column is available to subscribers on www.thetimes.co.uk This is an excerpt.

This time last year, give or take a few days, I was giving a talk in Birmingham. I had arrived late the night before and had not been out that morning. A couple of members of the audience remarked, however, on how eerily quiet the streets were. A lockdown had not been announced but people had already started to change their behaviour. Little did we know as we exaggeratedly bumped elbows – something I have not done much since – how strange the next 12 months would be.

What was on the way, of course, were more than 125,000 Covid-19 deaths, tens upon tens of thousands of stories of personal tragedy and loved ones unable to see each other even at times of serious illness, death and severe mental strain. What followed were the most onerous restrictions on everyday life and normal business activity that most of us have ever seen and would hope not to see again. Lives were blighted, particularly the lives of the young in education.

For the economy, what followed was, frankly, off the scale. A year ago, the economy was sliding into recession, even before the first lockdown. Gross domestic product fell by 7 per cent in March 2020, contributing to a 2.9 per cent fall in the first quarter of the year, the biggest drop since the three-day week of 1974.

That was just the appetiser. In April, GDP plunged by a further 18 per cent as the economy locked down. That was the main contributor to the 19 per cent slump in GDP in the second quarter of last year, easily the biggest on record. If this is the first draft of history, economic historians will be marvelling at these numbers for decades to come.

But then something rather different happened as restrictions were lifted. Starting in May, the economy grew for six months in a row. It slipped back in November, by 2.3 per cent, grew in December and managed to eke out 1 per cent growth in the fourth quarter, before falling back again by 2.9 per cent in January. We thus got very much better at handling lockdowns compared with the first.

The result of this is that, in the worst recession since the Great Frost of 1709, measured by GDP, there was monthly growth in seven of the 11 months for which we have data. This quarter will see at most a modest fall in GDP. As fort hat “worst since 1709” comparison, which I have used extensively, there are questions whether it its appropriate to compare with a time before the industrial revolution, when the harvest-related swings in economic activity were huge, in both directions, and nearly two and a half centuries before GDP was invented in the way we know it today.

Though the “worst recession for a very long time” label is likely to stick, it may be that the current estimate of a 9.9 per cent GDP fall last year will be revised lower as more data comes in. The Office for National Statistics has said that its estimates are subject to greater than usual uncertainty because of the pandemic.

That is not the odd thing about the past 12 months. Despite all the despair and tragedies I described above, and the severe setbacks for many individuals and businesses, on many measures it did not seem like a recession at all. Corporate and individual insolvencies have, as the Insolvency Service notes, remained low since the first national lockdown. Last month company insolvencies were 49 per cent lower than in February 2020, while individual bankruptcies and debt relief orders were down 42 per cent.

Weekly company incorporations – new business formations – are also showing significant year=on-year gains, as they have been for most of the period of the pandemic. Some say businesses are being established to qualify for government support, but I doubt that is the main explanation.

There are other odd aspects to the recession. You do not expect incomes to rise strongly at a time of economic pain but this is what has happened. In the final quarter of last year wages and salaries in aggregate, the biggest component of household incomes, were up by 2.8 per cent on a year earlier at a time of very low inflation. For 2020 as a whole aggregate wages and salaries showed a rise in real terms.

The big question for the recovery is not whether beleaguered consumers have money to spend, but how much of the £148 billion of deposits, mainly involuntary savings, they built up during the first three quarters of last year - £100 billion more than the previous year – will be spent.

Unemployment, at 5.1 per cent of the workforce, is at a level that many past politicians would have given their eye teeth for, in terms of it being so low. It will rise but probably not by very much, and the Bank of England will soon revise down its prediction of a 7.75 per cent unemployment peak. The Office for Budget Responsibility predicts 6.5 per cent.

The common thread here, as you may have discerned, is the unprecedented extent of government intervention in the economy. Government spending in the current fiscal year, 2020-21, will be the equivalent of 54 per cent of GDP.

The Treasury puts the scale of its Covid-19 support for the economy at £280 billion this fiscal year, and for a total of more than £350 billion this year and next combined. A significant part of those ages and salaries described above will have been provided by the government via the furlough scheme. The government could not prevent the hit to GDP largely but not entirely caused by its own lockdown restrictions, but its actions greatly limited the impact

We are now, one hopes, on the way out of that, and into a period in which the economy can stand on its own feet, though in a webinar I was doing the other day, businesses taking part were not so convinced. Nearly half thought there would yet be another lockdown and roughly 90 per cent believed some restrictions would return next autumn and winter. The champagne corks are not yet popping. Most were also sceptical about the pace of recovery and did not see the economy as the “coiled spring” beloved of Andy Haldane, the Bank’s chief economist.

For consumers, things are now looking up after this extraordinary, and very weird time. Though the survey was done before news emerged of delays in vaccine suppliers, Friday's consumer confidence index from GfK showed a notable bounce of seven points. It has now shown a considerable recovery since the gloom of January, and an even lower point in November, the second lockdown, though it is still quite a bit lower than a year ago.

Consumers, the guardians of those savings that are waiting to be spent, think the past 12 months have been terrible for the economy but the next year will be a lot better. They are more upbeat about their personal financial situation over the next 12 months than they were a year ago. They, like the rest of us, will be hoping for something that is not as weird as the past 12 months have been.

 

US economy experiences the deepest recession of all times – leading macroeconomic influencers

22 March 2021 (Last Updated March 22nd, 2021 08:10)

Economists believe that the US government could not entirely prevent the GDP decline triggered by the Covid-19 pandemic but it is gradually recovering from the plunge.

John Ashcroft

John Ashcroft, an economist, shared an article about the Covid-19 pandemic bringing economic activity and regular life to a standstill in the US, with the lives of the youth pursuing their education being the worst affected.

The country recorded more than 125,000 coronavirus related deaths since the Covid-19 outbreak in March 2020. The economy was sliding into a recession even before the first lockdown, as GDP dropped 7% in March contributing to a 2.9% fall in the first quarter of the year, which is being observed as the biggest fall since the three-day week of 1974.

In April 2020, the GDP plunged to a further 18% as the economy closed. This contributed to the 19% slump in the GDP in the second quarter of the year, the biggest drop on record.

However, since Covid-19 restrictions were lifted in May, the economy reported growth in the six upcoming months.

Although being regarded as the ‘worst recession for a very long time’, the label is likely to remain, given the current estimate of a 9.9% GDP fall last year will be revised lower as more data is received and analysed.

The big recovery questions, however, are whether consumers have enough money to spend, and if there will be enough jobs in the coming months.

The deepest recession, but also easily the weirdest … the common thread is the extent of state intervention …
⁦@dsmitheconomics⁩ ⁦@thesundaytimes⁩https://t.co/8qnS1npkVy

— John Ashcroft (@jkaonline) March 21, 2021

 

Armine Yalnizyan

Armine Yalnizyan, a Canadian economist with the Atkinson Foundation, shared an article on how the ongoing pandemic has highlighted the differences in working conditions between teachers and childcare workers.

Since the Covid-19 outbreak, educators, teachers and school officials in New York asserted that schools are not baby care centres and teachers cannot be used as baby-sitters. With some teachers being given the work-from-home option during the pandemic, baby care homes were used as schools for American children, who did not have access to online learning.

It was reported that childcare workers managed the children in the same classrooms which were shut down for teaching in view of the rising coronavirus infections, amid concerns raised by teachers’ unions. The glaring disparity in the treatment of teachers and childcare workers brought to the forefront the discrimination in treatment being meted out to the latter, and them being deprived of basic rights granted to employees.

Many childcare centres were forced to remain open during the peak of the Covid-19 pandemic, as operators of childcare centres feared that the federal government would not reimburse them if they suspended their operations. Childcare experts stated that the American Rescue Plan, which apportioned nearly $40bn for the industry, provided some relief to these workers.

Atif Mian

Atif Mian, a professor of economics at Princeton University, shared an article about the coronavirus pandemic highlighting the need for aggressive funding into basic science. The drug manufacturing company Pfizer and BioNTech, which are making the Covid-19 vaccine, are ready to use the once abandoned synthetic mRNA (Messenger RNA), in the coronavirus vaccine doses.

The prospects of the synthetic mRNA technology jeopardised scientific careers yet raised hope that it could play a pivotal role in the manufacturing of Covid-19 vaccine which is expected to restore normalcy into the world. Many more drug makers such as German biotech firm CureVac also developed experimental mRNA vaccines for coronavirus.

Experts claim that the value of mRNA, which was abandoned for decades, by scientists and governments alike, should remind the governments of the need to apportion substantial funds for research and development (R&D) into science and technology.

Postmaster General Louis DeJoy shows usonce again why he’s got to go

His latest plan to “remake” the Postal Service would result in slower mail, service cuts and higher postage prices.

By CST Editorial Board Mar 28, 2021

  

Postmaster General Louis DeJoy speaks during a House Committee on Oversight and Reform hearing on USPS on Feb. 24, 2021 on Capitol Hill. Graeme Jennings / Getty Images

It’s now been a month since President Joe Biden nominated three candidates to the Postal Service Board of Governors, the first step in dumping Postmaster General Louis DeJoy.

It’s unclear when the Senate will vote on those nominees, but the stakes get higher by the day. We saw that again this past week, when DeJoy outlined his 10-year plan to remake — read: finish destroying — the agency he began dismantling for political gain under the previous administration.

Several House Democrats on Friday introduced legislation to keep the worst of DeJoy’s plan in check, prohibiting him from lengthening mail delivery times. That’s not enough.

Biden’s nominees must be put in place so they can send DeJoy packing before DeJoy can cause even more damage. As Sen. Dick Durbin of Illinois bluntly said, DeJoy’s plan is “designed to sink the postal service, not save it.”

To save $160 billion over the next 10 years, DeJoy wants to further cut post office hours, lengthen delivery times, raise postage prices and impose other austerity measures.

So that mailbox down the block that was removed last year might never be replaced. For all DeJoy cares, it’s on you to get to the post office, during reduced hours, to mail your mortgage payment, business contract or birthday card. And take your chances that your mail arrives on time, since some 30% of items sent first-class would be delivered in four to five days instead of the current standard of two to three days.

Americans deserve better. DeJoy has done enough damage.

Last December, the rate of on-time delivery of non-local mail plummeted to 38%, down from 92% a year earlier. On-time delivery has since rebounded to about 80%, but that’s still below the USPS standard of 90%-plus.

Service has been especially poor in Chicago, as a USPS inspector general’s recent audit found. More than 62,000 letters and packages from four post offices were delivered late between September 2020 and February of this year.

Let’s not forget that DeJoy is also a near-perfect example of conflict of interest, having once owned a stake worth up to $75 million in a shipping firm that saw its contracts with USPS triple in size when DeJoy took over.

DeJoy doesn’t own those shares anymore. He signed them over to his adult children.

“Get used to me,” DeJoy told a House committee last month.

Whatever reforms USPS needs to become financially solvent and efficient, DeJoy cannot be trusted to make them.

Show him the door.

Captain Nick Sloane, The Salvage Master Who Raised The Costa Concordia, Discusses What It Will Take to Refloat The Ever Given – Interview

gCaptain

Nick Sloane, the South African Salvage Master who has led the operation for the U.S.-Italian contractors consortium Titan-Micoperi. REUTERS/Tony Gentile

March 28, 2021

Billions of dollars worth of global trade is hanging in the balance as salvage efforts continue to refloat the MV Ever Given in the Suez Canal.

The impact of the event now rests entirely on how long it takes to refloat the ship to restore maritime commerce through the critical chokepoint that offers the shortest route between Asia and Europe.

So what will it take to refloat the 400-meter-long containership?

Well that’s currently the million billion-dollar question. But to get an idea, we reached out to veteran salvage master Captain Nick Sloane for his take on the situation.

If the name rings a bell, it’s because Nick was the person in charge of refloating the Costa Concordia cruise ship in Giglio, Italy, the largest maritime salvage jobs in history.

Nick Sloane is now Director at Resolve Marine Group, one of the world’s leading maritime salvage companies (the appointed salvage company for the Ever Given is SMIT Salvage, a Boskalis company). He agreed and sat down for a Zoom interview with gCaptain’s founder and CEO, John Konrad, and Dr. Sal Mercogliano, a professor of history at North Carolina’s Campbell University and naval historian.

Have a watch below:

For a more in-depth profile on Nick, Vanity Fair did a great piece on him in 2014, at the height of his Costa Concordia fame, which is well-worth the read.

Full Coverage: Ever Given Ground in Suez

*Interview was recorded at approximately 9 a.m. EDT, Saturday, March 27, 2021. Originally published March 27, 2021.

Ever Given Refloating Attempt Postponed to Monday

Stranded ship Ever Given, one of the world's largest container ships, is seen after it ran aground, in Suez Canal, Egypt March 28, 2021. Suez Canal Authority/Handout via REUTERS

Reuters March 28, 2021

gCaptain Update: The Suez Canal Authority and salvors working to refloat the Ever Given will not attempt to pull the ship free Sunday night as they await the arrival of another high-powered tug, pinning hopes of refloating the vessel on Monday’s high tides.

“SCA has decided to postpone the next refloating attempt until sufficient tug power is in place,” shipping agent Leth Agencies said in its Twitter update on the salvage efforts. “TUG ALP Guard has already arrived. Second, TUG Carlo Magna, will arrive Monday morning. In lieu of the tide table, a likely time for the next attempt is Monday evening.”

The next high tides expected in Suez will occur at 11:42 a.m. Monday and 12:08 a.m. Tuesday local time, with the 12:08 high offering the highest tide of 7.0 feet, an increase of a little over 2 inches from the previous high. In this case, it seems every inch counts. -End

By Yusri Mohamed and Aidan Lewis

ISMAILIA, Egypt March 28 (Reuters) – Suez Canal salvage teams intensified excavation and dredging on Sunday around a massive container ship blocking the busy waterway ahead of attempts to refloat it, with two sources saying work had been complicated by rock under the ship’s bow.

Diggers were working to remove parts of the canal’s bank and expand dredging close to the ship’s bow to a depth of 18 meters (19.7 yards), the Suez Canal Authority (SCA) said in a statement.

There was no mention of new attempts to release the ship with tugs, though canal officials and sources had said they were hoping to take advantage of high tides on Sunday and Monday to dislodge the vessel.

A specialist tug registered in the Netherlands arrived and would join efforts to refloat the ship on Sunday evening, the ship’s technical manager Bernhard Schulte Shipmanagement (BSM) said.

Egypt’s President Abdel Fattah al-Sisi has ordered preparations for the possible removal of some of the ship’s 18,300 containers, SCA Chairman Osama Rabie told Egypt’s Extra News.

Any operation to lighten the ship’s load would not start before Monday, an SCA source said, as salvage teams try to maneuver the ship free before high tides recede next week.

The 400-meter (430-yard) long Ever Given became jammed diagonally across a southern section of the canal in high winds early on Tuesday, halting shipping traffic on the shortest shipping route between Europe and Asia.

At least 369 vessels are waiting to transit the canal, Rabie said, including dozens of container ships, bulk carriers, oil tankers and liquefied natural gas (LNG) or liquefied petroleum gas (LPG) vessels.

Shippers affected by the blockage may be offered discounts, Rabie said, adding that he believed investigations would show the canal was not responsible for grounding the Ever Given, one of the world’s biggest container ships.

Rescue workers from the SCA and a team from Dutch firm Smit Salvage have been weighing how much tugging power they can use on the ship without risking damage, and whether some cargo will need to be removed by crane in order to re-float it.

Experts have warned that such a process could be complex and lengthy. Rabie said he hoped it would not be necessary, but that Egypt would take up offers of international assistance if it did switch to that strategy.

A ballast tank at the bow of the ship has been damaged, and the vessel will have to be inspected once it is freed, two people familiar with the salvage operation said.

Suction pumps have been deployed to expel water from the tank, SCA sources said, and one of the sources said divers had been working to repair the hole.

SOIL EXPERTS

Dredging has so far shifted at least 27,000 cubic meters of sand and mud from around the ship, the SCA said earlier on Sunday.

However, two SCA sources told Reuters that a mass of rock had been found at the bow of the ship, complicating salvage efforts. That appeared to be confirmed by the focus late on Sunday on digging to remove the lining of the canal around the ship’s front.

Soil experts are on site to advise on recovery efforts and a further dredger was expected to arrive by March 30, BSM said.

From the dredging done so far it was still unclear whether the ship was stuck on soft sand, compact sand or clay, which will determine how easily it may shift free, said one official involved in the salvage operation.

Two new and powerful tugs expected to be in use by Monday could provide a boost. “We believe that is what you are going to need in terms of horse power … to have a decent attempt, a decent chance of trying to float her,” the official said.

The latest efforts come after officials said some progress had been made on Friday and Saturday.

“The rudder was not moving and it is now moving, the propeller is working now, there was no water underneath the bow, and now there is water under it, and yesterday there was a 4-meter deviation in the bow and the stern,” Rabie told Egyptian state TV.

About 15% of world shipping traffic transits the Suez Canal, which is a key source of foreign currency revenue for Egypt. The current stoppage is costing the canal $14-15 million daily.

Shipping rates for oil product tankers nearly doubled after the ship became stranded, and the blockage has disrupted global supply chains, threatening costly delays for companies already dealing with COVID-19 restrictions.

If the blockage drags on, shippers may decide to reroute their cargoes around the Cape of Good Hope, adding about two weeks to journeys and extra fuel costs.

A note from A.P. Moeller Maersk seen by Reuters said it had so far redirected 15 vessels around the Cape after calculating that the journey would be equal to the current delay of sailing to Suez and queuing.

The SCA has said it can accelerate convoys through the canal once the Ever Given is freed.

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Captain Nick Sloane, The Salvage Master Who Raised The Costa Concordia, Discusses What It Will Take to Refloat The Ever Given – Interview7 hours ago
Suez Villagers Meet The New Neighbor11 hours ago
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(Reporting by Yusri Mohamed in Ismailia, Aidan Lewis, Omar Fahmy, Mahmoud Mourad and Momen Saeed Atallah in Cairo, Anthony Deutsch in Amsterdam; Writing by Aidan Lewis; Editing by Alex Richardson, Elaine Hardcastle, Emelia Sithole-Matarise and Daniel Wallis)(c) Copyright Thomson Reuters 2021.

Suez Canal: Ever Given moves 30 metres as preparations are made to remove cargo to make it lighter

The 220,000-tonne Ever Given has been wedged across the Egyptian shipping lane since Tuesday

Egypt’s president has ordered preparations are made to remove cargo from the ship (Photo: Maxar Technologies/AP)

By Benjamin Russell
March 28, 2021

The container ship stuck in the Suez Canal has been moved almost 30 metres by workers trying to free the stricken vessel.

The 220,000-tonne Ever Given has been wedged across the Egyptian shipping lane since Tuesday, and experts have warned that freeing the ship could take weeks.

But fresh hope was given to the situation on Sunday when rescue crews reportedly managed to move it by around 30m, according to NBC News foreign correspondent Raf Sanchez.

Around 14 tugs are currently working in the canal, with two further attempts to free the Ever Given expected to take place on Sunday.

A pilot working with the Suez Canal Authority (SCA) said he hoped the chance of success would be boosted by spring tides offering deeper water.

Two additional tugs, the Dutch-flagged Alp Guard and the Italian-flagged Carlo Magno, arrived in the Red Sea and were heading to the site to work alongside dredgers as they continue to vacuum up sand from beneath it and remove mud caked to the ship’s side.

The Ever Given has caused a backlog of cargo ships (Photo: Suez Canal Authority via AP)

They have so far shifted 27,000 cubic metres of sand around the ship to reach a depth of 18m, according to the SCA.

Egypt’s president, Abdel Fattah al-Sisi, has also ordered preparations are made to remove cargo from the ship in a bid to make it lighter.

Lt. Gen. Osama Rabie, the head of the SCA said he was optimistic about the progress they were making.

He said: “There are positive indicators from yesterday and the day before yesterday.

“The rudder was not moving and it is now moving, the propeller is working now, there was no water underneath the bow, and now there is water under it, and yesterday there was a 4-metre deviation in the bow and the stern.”

He added: “We’re dividing the day into two halves, 12 hours for dredgers and 12 hours for tugs, because not all times are suitable for tugs due to the tide.”

More than 320 ships are waiting to travel through the waterway, either to the Mediterranean or the Red Sea.

A number of backed up ships are known to be carrying livestock, raising concerns about their welfare as time goes on.

Gerit Weidinger, EU coordinator for Animals International, said: “My greatest fear is that animals run out of food and water and they get stuck on the ships because they cannot be unloaded somewhere else for paperwork reasons.”

Read More
Suez canal: Grounded Ever Given cargo ship moves for first time but it is still unknown when it will be free

Many ships en route to the area still have the canal listed as part of their course, however other vessels are opting to navigate the Cape of Good Hope in order to avoid it.

The company that owns the ship, Shoei Kisen, said getting the ship moving was “extremely difficult”, but that there were no injuries or oil spillage caused by it running aground.

Mr Rabei said on Saturday that he hoped the ship would be re-floated “today or tomorrow, depending on the ship’s responsiveness to the tides”.

Discussing the cause of the accident, he added: “An accident this big has several mistakes, several causes, part of it is a technical mistake, which is under investigation.

“There could also be a human error, which is also under investigation.

“There could be a lot of mistakes, but we can’t say what they are now.

“The only mistake we can be sure of now is the wind and the sandstorm. This is not the main one, like I said, but the rest will become clearer in the investigation.”

Beeple and nothingness
The ontology of NFT Art
Issue 95, 25th March 2021

Anthony Cross | Lecturer in the Department of Philosophy at Texas State University.

Uncovering the ontology of NFTs - the artwork-cryptocurrency crossovers being sold for millions - reveals a profound uncertainty about their nature, and the rights they confer. But beyond this ambiguity, will the vast sums of cash (or cryptocurrency) being thrown at NFTs ruin the whacky and wonderful world of internet folk art? Writing originally for Aesthetics for Birds, Anthony Cross investigates.

It was the Beeple heard round the world: on Thursday, March 11th, Christie’s sold a collage of digital art images for 69 million dollars. Beeple, real name Mike Winkelmann, is the artist responsible for the work; this makes him the third-highest selling living artist behind Jeff Koons and David Hockney.

Prior to the sale, Beeple had a modest artistic practice, posting original 3D images online daily. Most of these “everydays” are technically competent but nondescript abstracts—the sort of thing that you might use as a desktop background. Recently they’ve grown more referential, including images of a breastfeeding Donald Trump, Tiger King dethroned, and the coronavirus as a scifi movie monster. How, exactly, did Beeple’s work find itself in a Christie’s auction, outselling Lucien Freud and Damien Hirst? The answer has a lot to do with his chosen format for sale: an ‘NFT’, or non-fungible token.

What’s an NFT?

The abbreviation stands for ‘non-fungible token’. NFTs are crypto tokens, just like Bitcoins and other cryptocurrency: Each NFT is a pointer to an address on a publicly verifiable and distributed blockchain. Owning an NFT means that you own the cryptographic key required to demonstrate your ownership; this can be verified by consulting the blockchain, which lists you—or more precisely your digital wallet—as the owner.

The person who holds the NFT is the owner. It’s like possessing a digital deed to the object in question.

Most crypto tokens are fungible - any bitcoin can be exchanged for any other - but NFTs are unique. This means that NFTs can be used as identifiers for unique objects. More importantly, by attaching an NFT to a particular object—like basketball highlights, digital albums or even tweets—sellers can use NFTs to transfer ownership of these objects. The person who holds the NFT is the owner. It’s like possessing a digital deed to the object in question.

NFTs are especially useful for selling digital art. By linking digital art pieces to specific NFTs, artists have created opportunities for the individual ownership and collection of objects that were otherwise replicable, shareable, and ownerless (think of internet memes). Consider the example of Nyancat, a GIF image-turned-meme dating from 2011 featuring an 8-bit cat with a Pop Tart body: this GIF has been circulating throughout the internet for a decade, featuring most prominently in an insanely catchy YouTube video set to music. The creator of the original GIF, Chris Torres, recently sold an NFT linked to a one-of-a-kind version of Nyancat for roughly $600,000.

There are interesting—and difficult—philosophical questions to be considered here. I will pose a few of them in order start a real discussion about NFTs within the philosophy of art.

NFTs and the Ontology of Art

What, exactly, is the ontological status of an NFT in relation to the work linked to it? And how might the issuance of an NFT change or update digital artworks like Nyancat, which are already in existence, and have already been widely shared and copied?

Philosophers of art have long marked a difference between singular artworks like original paintings and those which are multiply instantiable, like novels and photographs. In the latter case, there are many instances of these artworks in circulation, and encountering any of them offers us full acquaintance with the work. Digital artworks seem to fall into the latter category: there are countless instances of Beeple’s everydays circulating around the internet which can be enjoyed simply by loading the image. What are these multiply instantiable artworks? Abstract objects? Types with many individual tokens? Or are they simply the set of all of the existing instances?

VIDEO
Stephen Bayley, Andrew Bowie, and Mel Evans ask how art gets its pricetag.

Depending on our answer to this question, an artist issuing an NFT—say, for Nyancat or an ultra-rare Pepe—might fundamentally change the artwork itself. Consider a more traditional parallel: the limited edition print. When an artist issues a limited run of prints, they are privileging those copies compared to any others in existence. Artists use their authority to designate which instances of their work count as genuine encounters. Karen Gover takes this further, arguing that the licensed prints are somehow included in - and change - what the work fundamentally is.

But this analogy is not perfect: First, with respect to many NFTs, there is no physical object associated with the NFT at all. There is simply a set of digital bits that is identical to any other digital instance of the work. So, it is unclear whether NFT artists designate some instance of the work as licensed or genuine in any meaningful way. Second, it is not clear that digital artists have the relevant authority to determine what is and is not an authentic instance. Take Nyancat again: Torres sold an individual version of Nyancat, but it is not clear that Torres has any authority over Nyancat, the viral internet meme.

Ontologicallly speaking, you do not seem to be getting a special or privileged instance of the work when you buy what’s associated with an NFT. Nor does it seem that issuing an NFT necessarily changes the nature of the work. All of this raises an important question: What exactly is it that you are getting when you buy an NFT?



Getting NFT Right(s)

Dig through the Christie’s condition of sale for Beeple’s work and you’ll find the following:

You acknowledge that ownership of an NFT carries no rights, express or implied, other than property rights for the lot (specifically, digital artwork tokenized by the NFT)….You acknowledge and represent that there is substantial uncertainty as to the characterization of NFTs and other digital assets under applicable law.

NFTs are simply pointers. They are cryptographic tokens that point to a piece of digital art or collectible. A profoundly unsettled issue is what rights come with that pointer. The buyer and seller of an NFT agree on what sale of the pointer means, and what rights it gives over whatever it points to. In this way, NFTs are tools for transferring property rights from buyer to seller. But, for many of the digital artworks being sold via NFTs, it is unclear what these rights are.

When buying a traditional artwork, ownership includes control over its display and performance: where to hang it, who gets to see it, and so on. It is not clear that sale via NFT gives you this sort of control. All of the images in Beeple’s $69 million collage are still freely available on the artist’s website. These are exactly the same digital files that were sold via the NFT. What’s more, they seem to have exactly the same provenance and official authorization. Nor does owning an NFT guarantee any control over their reproduction and display online. This is ownership with none of the benefits.

When buying a traditional artwork, ownership includes control over its display and performance…It is not clear that sale via NFT gives you this sort of control.

At the same time, it is not clear that digital artists have ownership rights to transfer in the first place. While Pepe the Frog’s creator, Matt Furie, has had some legal success in stopping unauthorized uses of Pepe, it is far from certain that Pepe-the-meme is his property. Buying an NFT of Pepe from Furie would give you ownership of that image. But owning a one-off Pepe is not the same as owning the meme itself. Pepe the meme is a collective, participatory artwork that resists ownership. NFTs do not seem capable of giving ownership of the internet art that we care about.



NFTs, Stonks, and Getting Paid

A final and major concern about NFTs is the eye-popping amount of money involved. No doubt, the explosion in the NFT market is largely the result of the huge growth of cryptocurrencies like Bitcoin and Ethereum. The buyer of Beeple’s work was a cryptocurrency whale known as “Metakovan.” He has stated that he is purchasing NFT art and collectables primarily as investments.

On the one hand, this is a potential boon to digital artists looking to get paid. NFTs allow artists to create artificial scarcity, making way for a market for digital art. That said, this market might only reward the most successful artists. Between registration and transaction fees, most artists are unlikely to turn a huge profit in NFT sales. But this is no different from the overheads involved in traditional art sales for which galleries take commission.

More significant, though, is the kind of market that is emerging for NFT sales. Insofar as the market is explicitly viewed as an investment platform, market forces will encourage the development of specific kinds of art. This is already happening in the world of fine art. Sarah Hegenbart has written about the rise of “zombie formalism”, a trend in the art market for slick, abstract art designed to cater to the needs and desires of ultra-rich investors. Artists such as Lucien Smith and Damien Hirst tend towards creating bland, vaguely interesting works whose primary aim, in Hegenbart’s words, is “generating value out of nothing.”

Internet art is a kind of folk art—akin to a massive, collaborative project of generating aesthetic value. It reflects some of our strangest and most wonderful predilections. Most of us make and share memes and images because it’s fun, and because we like to be part of this gigantic, collective project. My worry is that the cash (or cryptocurrency) being thrown at NFTs will commercialize and marketize this culture. Will its content shift away from the wonderful and weird, towards the bland world of Beeple and cryptokitties? It is also possible that digital art will become just another investment platform: the next GME, the next Bitcoin, the next stonks. That, I think, would be a major cultural loss.


Aesthetics for Birds (AFB) is a blog that aims to bring together people working in aesthetics, philosophy of art and the art world, in a way that is accessible to everyone. Exlpore the blog at Aesthetics for Birds and twitter at @ArtfFockTweets for enriching thoughts and perspectives in these areas of philosophy and arts.