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PostPosted: 07 Feb 2017, 22:26 
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Here it is, Diz: The states' legal brief sent to the 9th Cirtcuit, against Trump's EO.

Also, I am listening the live stream audio of the session. Biscuit and tea?

Riveting 60 minutes. Tough questions to both sides.

Anything worth picking over?

* * *

Page 9 of Arguments states that plenary power does not mean the government is above judicial review:
[+] Click to see more
Defendants offer two threshold arguments to limit this Court’s review, claiming that invoking national security prohibits meaningful judicial review and that courts cannot examine the Executive’s motives. Both arguments fail.

First, courts routinely review executive decisions with far greater security implications than this Order. Even “in matters relating to the actual prosecution of a war,” the courts “exercise their own time-honored and constitutionally mandated roles of reviewing and resolving claims.” Hamdi v. Rumsfeld, 542 U.S. 507, 35 (2004) (plurality opinion); see also id.at 545 (Souter, J., concurring in the judgment); Boumediene v. Bush, 553 U.S.723 (2008); Korematsu v. United States, 323 U.S. 214, 234 (1944) (Murphy, dissenting) (“Individuals must not be left impoverished of their constitutional rights on a plea of military necessity that has neither substance nor support.”)
Next, states asked the 9th to examine the "true motives":
[+] Click to see more
Second, Defendants cite Kleindienst v. Mandel, 408 U.S. 753 (1972), and Kerry v. Din, 135 S. Ct. 2128 (2015), for the proposition that so long as the President gives a facially legitimate reason for excluding an alien, the courts will not look behind that reason. But those cases dealt with the President’s power to exclude “an unadmitted and nonresident alien,” i.e., someone who had no legal right to be here. Mandel, 408 U.S. at 762; Din, 135 S. Ct. at 2131. This case, by contrast, involves longtime residents who are here and have constitutional rights. Moreover, Justice Kennedy’s controlling opinion in Din held that courts should look behind the stated motives for exclusion even as to a nonresident alien if the plaintiff “plausibly alleged with sufficient particularity” “an affirmative showing of bad faith.” Id. at 2141. See also Cardenas v. United States, 826 F.3d 1164, 1171 (9th Cir. 2016) (same). Here, the State has plausibly alleged with sufficient particularity that the President acted in bad faith in an effort to target Muslims. ECF 18 ¶¶ 42-61. Thus, courts have both the right and the duty to examine Defendants’ true motives.
* * *

Down to p 22, we have the Establishment Clause review, and Larson v. Valente came up like clock work:
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Larson applies here. The Order’s refugee provisions explicitly distinguish between members of religious faiths. President Trump has made clear that one purpose of the Order is to favor Christian refugees at the expense of Muslims. ECF 18 ¶ 53, Ex.8. And the States have plausibly alleged that the countries chosen for the travel ban were chosen in part to disfavor Muslims.

Defendants claim that the Order “is neutral with respect to religion.” Motion at 19. “But it is . . . the duty of the courts to distinguish a sham secular purpose from a sincere one.” Sante Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000); McCreary County, Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 864 (2005) (citing Lemon v. Kurtzman, 403 U.S. 602, 612(1971)). Here, the sham of a secular purpose is exposed by both the language of the Order and Defendants’ expressions of anti-Muslim intent. See, e.g., McCreary, 545 U.S. at 866 (courts consider the “historical context” of the government act and “the specific sequence of events leading to [its] passage”). (Emphasis mine)
* * *

In all, the brief against the EO laid out 75% percent of the way I laid out earlier. States challenge the EO from Establishment, to Equal Protection, to Due Process. You said plenary power supersedes this but p 25 argues strictly against this.

The brief also included a bunch of quotes from DJT from the campaign, the transition and the CBN interview.


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PostPosted: 08 Feb 2017, 03:40 
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Nothing really. The arguments are kind of bad to be honest. I'd be surprised if they stayed the TRO, because 99% TRO's aren't reviewable. I think that part is on page 5.

I found a really good unbiased article on the matter.


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PostPosted: 08 Feb 2017, 07:51 
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I got a copy of the transcript of Washington v Trump.

Are there evidence behind the threat assessment on this 7 countries? Canby is Carter's appointment; Clifton is Bush's; and Friedland is Obama's.
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Friedland: Has the government pointed to any evidence connecting these countries with terrorism?

Flentje: These proceedings have been moving very fast. And the strongest point on that is that in 2015 and 2016, both Congress and the administration made determinations that these seven countries posed the greatest risk of terrorism and in doing so restricted visa waivers to people who had even traveled to those countries over the last five or six years. The executive order relies on that determination and I think that is the strongest type of reliance where the president is relying on Congress’ determination that these are countries of concerns and Congress’ procedures to identify countries of concern based on significant terrorist activity in the countries.

Clifton: I understand the concept of that but it’s pretty abstract. It’s not like there haven’t been processes in place to take some care with people coming from those countries. Indeed those are determinations in the statute and by the prior administration you’re pointing to. Is there any reason for us to think that there’s a real risk or that circumstances have changed such that there would be a real risk if existing procedures weren’t allowed to stay in place while the new administration conducts it’s review.

Flentje: Well, the president determined that there was a real risk. ….

Canby: In naming those seven countries what Congress did was to provide that people coming from those seven countries had to get visas. In other words, they couldn’t just come into the country without a visa. That permitted, of course, the usual investigations before you give somebody a visa. … The District Court asked the representative of the Department of Justice, how many federal offenses have we had being committed by people who came with visas from these countries? The answer was there haven’t been any.

Flentje: These proceedings have been moving quite fast and we’re doing the best we can.

Friedland: You appealed to us before you continued in the district court to develop the record. Why should we be hearing this now if it sounds like you’re trying to say you’re going to present other evidence later?

Flentje: ... There have been a number of people from Somalia. …

Friedland: Is that in the record?

Flentje: It is not in the record. You’re right it is not in the record. The reason we sought immediate relief and stay is that the district court’s decision overrides the president’s national security judgment about the level of risk. And we are talking about the level of risk that is acceptable. As soon as we are having that discussion, it should be acknowledged that the president is the official that is charged with making those judgments.
* * *

One judge asked DoJ if DJT can declare it a "Muslim ban" and if so, can anyone review it. The government has no answer to that.
[+] Click to see more
Judge Canby: Could the president simply say in the order, ‘we’re not going to let any Muslims in?’

DoJ Flentje: That’s not what the order does here.

Canby: I know. Could he do that? Could he do that? Would anybody be able to challenge that?

Flentje: That’s not what the order does here.

Canby: I know that.

Flentje: I’d like to get to one key point.

Clifton: Well, we’d like to get to an answer to that question because it speaks back to the standing issue. If the order said, ‘Muslims cannot be admitted,' would anybody have standing to challenge that?

Flentje: I think Mandel and Din give a route to make a constitutional challenge if there were such an order. It would be by a U.S. citizen with a connection to someone seeking entry. This is a far cry from that situation.

Sounds like ¯\_(ツ)_/¯
* * *

Is it constitutional? (Judge Friedland was appointed by Obama)
[+] Click to see more
Friedland: I don’t think that you answered the question that was asked earlier about ‘what if the order said no Muslims?’ You’ve been analogizing to cases that were about people who were communists who advocated overthrow of the U.S. government. And are you saying that the external evidence here that is alleged that the intent here was to ban Muslims, is equivalent to that?

Flentje: If there were an executive order that prevented the entry of Muslims that—there would be people with standing to challenge that and I think that would raise establishment clause, First Amendment issues. But that’s not the order we have here. This order is limited to the countries defined by Congress.
* * *

Should the Court look beyond the injunction and directly at the EO's motive?
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Friedland: [The allegation is] that [religious animus] was the motivation, and plaintiffs have submitted evidence that they suggest shows that that was the motivation. So why shouldn’t the case proceed, perhaps to discovery, to see if that really was the motivation or not?

Flentje: We’re not saying the case shouldn’t proceed, but it is extraordinary for a court to enjoin the president’s national security determination based on some newspaper articles and that what has happened here. That is a very troubling second guessing of the national security decision made by the president....

Eury: But this were words of Trump, no? (Judge Clifton is W. Bush's appointment)

Clifton: Do you deny that in fact that the statements attributed to then candidate Trump and to his political advisors, and most recently Mr. Giuliani, do you deny that those statements were made?

Flentje: Judge, Clifton, no. I would note that [the lower court judge who blocked the executive order] said himself that he wasn’t going to look at campaign statements.

Clifton: Do you deny that in fact that the statements attributed to then candidate Trump and to his political advisors, and most recently Mr. Giuliani, do you deny that those statements were made?

Flentje: Judge, Clifton, no. I would note that Judge Robart himself said that he wasn’t going to look at campaign statements

Clifton: That’s a different point. I understand the argument they shouldn’t be given much weight, but when you say we shouldn’t be looking at newspaper articles, we’re all on the fast track here. Both sides have told us it’s moving too fast. Either those kinds of statements were made or they were not. If they were made, but they were made not to be a serious policy principle, then I can understand that. But if they were made, it is potential evidence, it is the basis for an argument. So I just want to know what’s on the table.
Judge then asked if there were any evidence that the EO was not motivated by religion:
[+] Click to see more
Friedland: If we thought there was a problem that this was too preliminary, if we let this go forward to preliminary injunction hearing, do you have evidence that you would present?

Flentje: I think definitely would like the opportunity to present evidence back in the district court.

Friedland: Can you tell us anything about the type of evidence that you would present so that we could consider whether further proceedings are needed?

Flentje: Not yet.
* * *

While we wait for the decision, I want to ask what you think about the amount of leaks came out from the White House or other agencies depicting Trump as an imbecile one way or another. I think these gossips are important for several reasons, not just because they are liberal porn fulfilling our fantasies that DJT is an idiot at the core, but what these leakers do now could be laying down a foundation of trust between them and the reporters. The fact that the reporters are too ready to print them mean we readers should be careful in discerning between heat and light.

My colleagues think there are factional fighting taken place inside the administration, and the NYT/WaPost/WSJ are reaping payouts every day.


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PostPosted: 09 Feb 2017, 01:49 
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Lets play a little what if.

What if all of this is on purpose? When I say that, I don't mean that the liberals are making shit up and "leaking it." Although that might be what's happening. But what if Trump intends all of this to happen.

Look at how he gamed the media during the election. He literally received air time every day for hours on end. He didn't have a big need for commercials because everyone was already talking about him. Now look at the media during his presidency. When is the last time you saw the media talking about the government, governmental policies, and all the other stuff that goes with it. Then there are a couple recent examples, not just by him, but from people involved with him and his administration.

Case #1
Kellyanne Conway's Bowling Green Massacre
Her mistake went Viral. Now sure it could have been a real mistake, but what if it wasn't? Look at all the conversation that occurred afterwards about the 2 Iraqi refugees that came here and were planning/attempting to help a terrorist attack. The media was only speaking about all the good things the refugees did/had happen to them, because of the travel ban up until this point.

Case #2
Spelling mistakes on WH list of terror attacks
Once again, what if these spelling mistakes were on purpose? All these mistakes have caused the media to start pointing out all the different terror attacks and talking about them in the news. And again, this takes away from all the good refugee/immigrant conversation that was happening in the media.

The reason I wanted to bring this up is because Trump is smarter than most people think. He understands that if you want people to do something, you don't ask/tell them, you make a mistake and let them correct you.

---

As far as the possibility of factional fighting, I guarantee there is. Whenever is there not in a government?


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PostPosted: 09 Feb 2017, 02:52 
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I want to ask for clarification. When you mention "the media," do you mean it primarily as TV-first, radio/audio/print second? Since I mostly read and listen, I haven't seen the effect of wall-to-wall heat that crowded out the light. This immediately puts me in the minority, and I haven't used a TV since 2004, outside of playing Mario Kart with children for less than 45 mins at a time.

* * *

That said, I am intrigued with your Trump portrait. No publicity is worse than bad publicity seems to the modus operandi here. But taking this into full consideration, each instant exists to cover/minimize the previous. Take the case #1 you laid out.

You suspected it happened so it could overtaken the previous major event, which i surmise is the EO's public protest and the airport chaos scenery. But it came with the cost of being tagged as a serial liar, which led to the lost of an outlet for a weekend (i.e. CNN turned down Conway due to "credibility" problem). Spelling mistakes were not a big deal because the bigger issue was the list of so-called "under-reported" terror attacks; but the cost was once again: Are the WH serious!? Are they this petty and vacuous?

And then there were a series of leaks upping the ante in making Trump look like a bumbling fool. Example: Trump calling NSA Flynn asking for economics advise. This is a frightening thing and I think designed to be that way. it's also gossip and undercutting the president's standing. This came out after the Seal 6 member KIA in Yemen, and right before news of Yemen shutting down future cover ops on its soil. Then the TIME magazine cover of Bannon, which followed gossip that DJT was "angry" at Bannon for not "fully brief" DJT on the NSA EO that placed Bannon at the table. This one is especially devastating, since it goes right to the heart of the liberal porn that Trump is just a puppet and Bannon plays the master. The TIME cover was about a month or less into the new administration----which you have to ask: Why isn't the boss on it but his brain trust?

Do you see where I am going with this too? Everything so far has been one brush stroke after another showing DJT is below par. And it would just be a fantasy if the tweets aren't real. Whoever behind that handle sounded think-skin, juvenile Wayne's World type of 1-liner note (i.e. Sad!, NOT!, bad!). And then the Man himself in public demanded to be respected; and his cheerleader Conway, the other day, demanded/begged the media to respect the office, if not the man.

These leaks to me, these palace intrigues, are something newer. Whereas the previous admins seen leaks falling into 2 distinct categories: self-promotion or trial balloon testing. Now we have the third one, which is just straight up telling us that the Man is sleeping at the helm. It's possible that the Obama-people could be the ones leaking these tidbits. They are holdovers with no stake on the DJT's success. Or it could be DJT's staffers, the idealists who signed up for the cause, only to see or heard how imbecile the Man and were disappointed enough to let the world know about it. And if it's more of the latter, then something very very terrible is happening.

Problem for us: We can't know for certain.

* * *

And I have a chart. Just throw it out there without comment. (source)

Attachment:
serious offense of state prisoner chart.jpg
serious offense of state prisoner chart.jpg [ 31.04 KiB | Viewed 414 times ]


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PostPosted: 09 Feb 2017, 05:19 
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Bad publicity is better than no publicity.

Do you think with the type of news cycles we have nowadays Trumps points would be remembered a week after he said them? Because I don't. Do you think Trump would get fair coverage if he went out and presented this stuff? Because I don't. So rather than trying and failing, Trump is doing what he needs done however he has to.

At the end of the day, it doesn't matter whether people like Trump or not, whether people think Trump is an idiot or not. If his actions continue to be sticking to his promises, and he really is is improving things in America, everything else doesn't matter.

---

That article/chart are very interesting. I actually had no idea that the difference between state/federal is so large. It also looks like whites are more likely to be in state doc's than blacks/hispanics, which is surprising to me.


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PostPosted: 09 Feb 2017, 07:05 
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Diz,

I am mid-flight across the Pacific, going to the U.S. with a bunch of lawyers to do some audits for a client. Armed with some Wi-Fi and idle time, I am going to send up some assessments of what I think so far about this new admin. They are my updates on the question you and BLK asked pages back: What do I make of Trump?

We started with how a supporter like you saw him and how he was actually portrayed to a detractor like me. With some idle time to think, I want to go back to the 7-country ban EO since I had time to playback the recording for the second time, and be critical. I will go light on the legalistic aspect since I already hammered it out. I want to focus on the actual injury and supposed danger the White House said existed but not yet shown.

Let's start there: the notion of deference to the executive branch on foreign policy aspect, this plenary power, in practice.

Do the public and the other branches have any recourse when the President lies?

We have an injunction issued by a Federal district court, to be reviewed by the 9th Circuit, where the president and his men argued that the Court should not even involve, but nevertheless came unprepared to let the court know what exact emergency EO 13769 aimed to address. Instead, the government said the injunction was the emergency because it blocked the presidential power to decide what's the risk facing the country. In their words, the injunction "overrides the President’s national-security judgment about the level of risk. Furthermore, the court should not consider this a "Muslim ban" because that's not technically what written in the EO. The court should take the President at his EO's words and not his chattering in the public domain. This included "some newspaper articles" having him on the record dispensing his views on Islam and Muslim immigrants. The 9th should just look at the actual text and believe.

Time seemed to be the essence. The Court said it would decide soon and it used the 30-minute session to push the government on what is reviewable. Soon as the DoJ finished their opening remark, Judge Friedland asked, “Have you offered any evidence to support this need you’re describing for the executive order, or are you really arguing that we can’t even ask about whether there’s evidence because this decision is non-reviewable?”

The government admitted it had no evidence ready to present because "these proceedings have been moving very fast."But they were the one asking for the immediate lift of the injunction, which was put in place to sort out whether Washington and Minnesota had any rights to object. The government insisted Obama and Congress already named these 7 countries in their visa-waver program, so why can't Trump take it further? Why further? Because it is a stretch to say what Trump did here was exactly or similar to what Obama did with Congress.

That law, the Visa Waiver Improvement and Terrorist Travel Prevention Act, put in place a system that ID'd and subjected travelers to and from these 7 countries to more questioning. According to the enforcing agency (USCIS), the law "establishes new eligibility requirements ... (but) do not bar travel to the U.S.. Instead, (those) do not meet the requirements must obtain a visa .... which generally includes an in-person interview at a U.S. Embassy or Consulate." Again, what Obama system did was not a ban, but ask more questions.

In light of this, Judge Clifton asked for evidence as to why the change---why the upgrade in threat assessment---"that there’s a real risk, or that circumstances have changed?"

The government didn't sound like it had solid footing. It retreated to plenary as sole reason: "Well, the President determined that there was a real risk;" therefore it was "understandable" that he did so because he "understands" the issue.

So, is it the DoJ's position is that the president's assessment is "unreviewable?" Friedland asked.

Yes, the government replied, but within "obvious" constitution limits. Judicial review should be "limited" to the "four corners of the document." (Nice phrasing). That means the court should only review the text, whether the laws it cited, the syntax it used, the grammar and jargon deployed are correct---a scrutiny the government said it would "easily" passed. And if for some reasons the court decided to hear from the affected American citizens, the focus should be exceedingly narrow. That's it!

"We're not acknowledging any review on the facts of the case," the government said.

One thing no one disputes is the latitude Immigration laws give the president, especially when the country is in danger. But what if we have a president who is known to tell lies, discernible to the objective eyes of the court and public? How should we see his edicts and reconcile between what he claimed as danger and the existing laws saying religion should not be a factor for excluding people?

If there was one thing we learned from Snowden and Wikileaks, it is a fact that there are many things the public doesn't get to know, and certainly not until it is too late. Some of us believed Bush that we did no do anything that would violate our treaties on torture. When discovered, Bush asserted his Commander in Chief status as the reason to be beyond judicial review. Some of us seen our trust broken by Obama when he signed a hit order on Anwar Al-Alawki, an American citizen, and violated the very letter and spirit of the Due Process clause. When discovered, Obama's men essentially said, Trust us, we only did it once.

J brought this up to mitigate the fact that Trump was not the first politician to lie, and this one surely doesn't rise to the level of Tonkin or LBJ's refusal to end the war because he didn't want to be the first president to lose a war. But I am also cognizant the inherent obstacle facing the court, and the public as well, when it comes to sorting out the lies and the half-truths, especially when it comes from a long line of executive chiefs using national security disguise racial animus. It brought to mind the interment of American citizens of Japanese ancestry that ended by Koematsu vs United States. Then, as now, the court's role is crucial.

“Haven’t there been allegations here of bad faith?” Judge Friedland asked, “And doesn’t Mandel and Din, the concurrence in Din, envision that that is something that we would need to look at?” The government used these two cases as reasons to why the court should look at the order at face value. But ironically, “Justice Kennedy’s controlling opinion in Din held that courts should look behind the stated motives for exclusion even as to a nonresident alien if the plaintiff ‘plausibly alleged with sufficient particularity’ ‘an affirmative showing of bad faith,'" the states responded in the filing. And this is where the government stumbled for answers. It had none so it switched to the question of "standing."

We did talk about standing and moot, and I understand these concepts. Lawsuits must be filed by those directly affected and recognizably harmed, which the remedy must be able to fix. The government hoped that the court would drastically narrow the scope from nationwide to just Washington and Minnesota. But the government lawyer floundered when the judges brought up institutional examples the University of Washington, which claimed their faculty and students were either stranded at the airports under uncertainties, or completely banned from returning.

Judge Canby pressed on this, “Could the President simply say in the order, we’re not going to let any Muslims in?”

That's not what the order said, DoJ said repeatedly. But when the judges pressed further, he conceded that he could see some could have standing to challenge the order.

When the judges turned to the states to hear their side, the states affirmed the situation and that gave them standing to sue. The court "has always been" the one to check the abuse and should not give into the president's demand that they "to abdicate that role here, to reinstate the executive order without meaningful judicial review, and to throw this country back into chaos"-- the mess that was brought on by Trump's action, which "caused irreparable harm" to the states' people and economic interests. It is real and entirely of Trump's creation.

The question of bad faith is where the states want to pursuit. It's amazing, they said, that they have yet to being the discovery process and already they've seen a mountain of evidence showing "intent to discriminate against Muslim." Evidence in speeches, on twitter, to radio hosts or just about anyone who attended the rallies, who saw him on TV, in shock or in awed. The government now asked us to effectively forget all of that, to deem those bits irrelevant, and start anew. We have to look within the four corners of the documents, they said, even if we can see the lies they stacked all around the periphery.

------------------------

See you when I get back.


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PostPosted: 10 Feb 2017, 03:10 
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I'm not surprised that the Stay wasn't granted.

However, we still haven't gotten to the part where we actually provide evidence. At least the DoJ hasn't, but the states have shown at least some of their evidence. Based on what we've seen so far I don't think it's enough to find that the whole EO is unconstitutional. Don't forget, the states evidence has to be overwhelming to actually show why its unconstitutional, whereas the DoJ has to only show somewhat why it isn't.


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PostPosted: 12 Feb 2017, 03:11 
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I am perplexed at what you wrote. When the 9th rejected the appeal, you wrote:
diz wrote: I'm not surprised that the Stay wasn't granted.
But during the hearing period, you wrote:
diz wrote: (...) I'd be surprised if they stayed the TRO, because 99% TRO's aren't reviewable.


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PostPosted: 12 Feb 2017, 03:20 
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Chart time!!

From Amino, a start-up on medical data, a chart on insurance personal injury claims:
Attachment:
blog_injuries_by_state.jpg
blog_injuries_by_state.jpg [ 174.62 KiB | Viewed 401 times ]
* * *

A good video on nuance and complexity, and the science of "cognitive closure":



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