The solution.......

Mandate the vaccine, not masks

Vaccines are the solution to Covid-19. Let’s make the most of them.

By German Lopez

All of a sudden, it looks like masks may have to be put back on.

With the rise of the delta variant and a rapid increase in Covid-19 cases, the US Centers for Disease Control and Prevention is calling on vaccinated people to wear masks indoors again in places where the virus is quickly spreading. At least some school districts will likely require masks this fall. Local governments, from Massachusetts to California, are reviving mask mandates.

A year ago, requiring masks as cases spiked would have been an obviously smart decision. Mask mandates work, and for most of 2020, they were among the best methods we had to stop the spread of Covid-19. But masks were never meant to be the long-term solution; they were a stopgap until the US and the rest of the world could stamp out epidemics through vaccination.

Now those vaccines are here. And the changed circumstances of summer 2021 call for new approaches. Any entity thinking about a mask requirement — from private businesses to local, state, and federal governments — should consider mandating something else first: vaccination.

Unvaccinated people, whether they’re apathetic or resistant, are the reason the coronavirus remains a threat in the US. The country and everyone concerned about the rising case rate should do everything in their power to push these people to get a shot.

The federal government could require vaccination for its own employees, as President Joe Biden is reportedly considering, and offer incentives, financial or otherwise, for others to do the same. Local and state governments could require vaccines for their employees, health care workers, schools, and public spaces, from restaurants to museums. Even without any government support, private organizations could act alone, requiring vaccinations for their employees and, ultimately, proof of vaccination for anyone on their premises.

The US Department of Justice seemed to clear the way recently for vaccine mandates, declaring in a recent memo that “entities” can impose vaccine requirements for shots authorized under emergency use without full federal approval. And some government agencies, including New York City, California, and the US Department of Veteran Affairs, are now requiring public employees or health care workers to get vaccinated.

I’ve been talking to experts about mandating vaccines for months. Earlier this year, when I wrote about vaccine passports, many argued that mandates should only be tried as a last resort — we should try improving access and offering incentives first. Only if those options failed should we rely on the more drastic steps.

Well, we’re here. America has made the vaccines much more available to just about everyone who’s eligible. The nation has tried rewards, ranging from free beer to gift cards to a cash lottery, to nudge people to get a shot. Yet we’re stuck. Half of the US population still isn’t fully vaccinated.

It’s time to try that last resort.

Vaccine mandates work

France has historically been one of the more vaccine-skeptical countries in the West, and it’s struggled more than some of its peers to get people vaccinated. Two weeks ago, the country announced that it would require proof of vaccination for everyday activities, like restaurants and shopping centers. The news of the requirement led to a record rush for vaccine appointments, with 1.3 million people signing up in less than one day. (It also led to some protests.)

Israel has used “green passes,” proof of vaccination that’s required for everyday activities like restaurants and movie theaters, for as long as it’s been administering the vaccines. That requirement is cited as a key reason Israel has led much of the world in vaccination: More than two-thirds of its population has received at least one shot; more than 60 percent are fully vaccinated. (The US, by comparison, is less than 57 percent with at least one dose and below 50 percent fully vaccinated.) Israel recently reimposed some masking rules, but only after going hard on vaccination first.

In the US, the Kaiser Family Foundation’s surveys have consistently found for months that about 20 percent of Americans are resistant to getting the vaccines. But even among these resisters, about 30 to 35 percent say they would get the shot if it was required. If a mandate would move even some of the most hardcore skeptics, then it would almost certainly boost vaccination rates across the country, also pushing the other 13 percent of the country who are still in “wait and see” or “as soon as possible” mode to get going.

In a follow-up interview, a 51-year-old man who said he would only get the vaccine if it was required told Kaiser he ultimately got it, and did so because he felt he had “limited options without it.” In New York, where he lives, the government has kept some restrictions for unvaccinated people, and employers have required the shot in some places as well.

None of this should be surprising. Vaccine mandates have been a part of American public health policy for decades, especially for health care workers and anyone attending school.

A 2019 review of the evidence on school mandates found that the requirements “appear largely associated with increased vaccination coverage” (while calling for better studies). And a 2015 review of the evidence on mandates in health care settings found they’re the most effective out of several options to encourage vaccination.

Meanwhile, the vaccination rate among American 2-year-olds for diseases like polio and measles — shots required for decades for public school attendance — surpasses 80 or even 90 percent.

Schools don’t require students to go through elaborate restrictions or rituals for these other diseases. They just require the vaccine. We can and should learn from that.

Universal vaccination would protect all of us

There’s also the less empirical case for requiring vaccination: It’s simply the right thing to do.

Based on all the evidence, the vaccines really work, including against the variants. Vaccinated people may still get infected by the coronavirus, leading to flu-like symptoms. But the vaccines nearly eliminate the risk of hospitalization and death — the real threat of Covid-19 — even with the variants.

The reason, then, that mask mandates are now coming into consideration is largely to protect unvaccinated people, who are truly at risk from the virus. As White House medical adviser Anthony Fauci declared in June, the Covid-19 epidemic in the US is really becoming the tale of “two Americas” — vaccinated and not.

A New York Times analysis in June found that places with more than 60 percent of their population vaccinated report about one-third of the cases as those with a lower vaccination rate of zero to 30 percent. And other data suggests that the current rise in coronavirus cases is almost entirely among the people who haven’t gotten vaccinated, with the new outbreaks hitting the low-vaccination states harder.

This presents a conundrum: Places that reinstate mask mandates are effectively asking vaccinated people to care more about unvaccinated people’s risk of Covid-19 than most of these unvaccinated people do (or else they’d get the vaccine).

There are important exceptions. Children under 12 are still unable to get the shot (and that will likely force mask mandates in K-6 schools this fall). The immunocompromised may not always get full protection from the vaccines. Yet the best evidence we have indicates these people would also be most protected if everyone who can get vaccinated did so, because it would reduce the spread of the virus.

The biggest hurdle to that kind of universal vaccination is no longer access. Vaccines are everywhere: I can, as I write this in Cincinnati, find appointments at multiple grocery stores and pharmacies in the next hour, including in some of the poorest neighborhoods, and appointments aren’t even needed in many of these places. The share of Americans who want to get vaccinated “as soon as possible” but have not is tiny: about 3 percent in June, according to the Kaiser Family Foundation’s surveys.

There’s more work to be done to make sure people have all of the information they need to get vaccinated and to actually access the shots. But the problem is no longer that people desperately want the vaccine and can’t get it; it’s that people need to be swayed to want it at all.

A mask mandate could even work against the vaccine campaign. Some research has found that people can be motivated to get vaccines with the promise that they’ll be able to stop masking up. As one vaccinated 52-year-old told the New York Times, “I just honestly got sick of wearing the mask. We had an event yesterday, and I had to wear it for five hours because I was around a lot of people. And I was sick of it.”

Requiring vaccinated people to keep masks removes an incentive for the shot.

And it doesn’t address the core problem: People who are eligible for the vaccine are still unvaccinated. That’s what needs to be fixed. If nothing else, all tools — up to and including mandates — should be used to move unvaccinated people before vaccinated people are asked to make more sacrifices.

A mandate could be a last resort — but it needs to be an option

For some of the population, a vaccine mandate would almost certainly produce a backlash. It could lead some of the resisters to harden in their refusal to get a vaccine, or polarize the US even further.

This is what some experts worry about. Jennifer Nuzzo, a senior scholar at the Johns Hopkins Center for Health Security, has told me, “You take someone who is generally uncomfortable but willing to have a conversation, and you make it about them and an infringement on their liberties, and then they wind up getting more hardline on their views about the vaccines than they otherwise would have been.”

It’s a genuine public health conundrum. A mandate needs to lead to more people getting the shot than otherwise would, not fewer. And while the Kaiser Family Foundation surveys suggest that mandates would lead to more people overall getting the shot across the country, that may not be true in every town, city, county, or state.

Policymakers can address this by moving slowly, at first requiring public employees, health care workers, and schools to get the vaccine before phasing in mandates to the rest of the population. It may help these will likely be local and state decisions, given that the Biden administration has repeatedly resisted setting up a green pass–like system in the US. Different local and state governments may make different decisions about which settings require vaccination. And mandates should be treated as a last resort: The cities and states that, for example, haven’t tried cash incentives for vaccination could try that first.

White House press secretary Jen Psaki speaks to reporters on the correlation between deaths and unvaccinated people from the briefing room on July 27. Anna Moneymaker/Getty Images

Even with all that, there may still be a backlash. Yet the mask mandates being discussed right now risk a backlash, too, in exchange for a much less permanent solution; many of the same people who refuse to get vaccinated are the same as those who most vehemently refuse to mask up. Ultimately, for cultural or political reasons, some places might not be able to impose a mandate of any kind.

But far more could than have tried so far, and far more should try. Even a patchwork system in which you need a vaccine to do some things in some places, but not everywhere to do everything, will push more people to get the shot than today’s reality, where you most likely don’t need a vaccine to do anything at all.

Yes, a vaccine mandate, like a mask mandate, infringes on a person’s ability to make their own personal health decisions.

But as Brown University School of Public Health dean Ashish Jha previously told me, “Freedom cuts in both directions.” If people’s resistance to getting vaccinated leads to more Covid-19 outbreaks and, worse, the rise of a variant that can overcome existing vaccines, the ensuing caution and restrictions would hinder people’s freedoms far more. That’s what we’re seeing right now as places consider adopting mask mandates again due to outbreaks caused by unvaccinated people.

To put the threat of Covid-19 behind us, people need to get vaccinated. As a country, the US has tried just about everything else in the toolbox. Before we go back to 2020’s policy ideas, we should make full use of the best tool we have in 2021.

Obscene Hypocrisy, that's their middle name....

The Obscene Hypocrisy of Republicans Blaming Everyone But Themselves: The COVID Edition

They spent so much time owning the libs, they forgot to care about the lives of their constituents.

NATHALIE BAPTISTE

After nearly a year and a half of telling their constituents that it’s their constitutional right to ignore coronavirus guidelines and public health restrictions, it seems to be dawning on leaders in the Republican Party that letting a deadly and very infectious disease run rampant through their states and localities—not to mention the rest of the country—is actually a terrible idea. 

So now, as the highly contagious Delta variant is creating a new surge of infections, the time has come to reverse course. But there’s an obvious problem: After feeding a large swath of the country a steady diet of potentially fatal misinformation, distrust in the government, and demonization of the other, while insisting that individual “freedom” is more important than the collective good, it’s nearly impossible to convince the true believers to do otherwise. For decades now, the conservative ethos has been predicated on a selfish individualism that informs everything from social and tax policies to medical care. And of course, this ideology, further amped up by a deranged president, has plagued the US response to COVID-19 since the beginning. Now, we’re all paying the price.

Unlike the early days of vaccine distribution, the US has an embarrassment of riches when it comes to vaccine supply, which has been scientifically proven to prevent serious illness, hospitalization, and death. Yet, according to the Washington Post, as of July only 49 percent of eligible people in the US are fully vaccinated. And there’s one major reason for this: GOP leadership—from state and local politicians to members of Congress to the conservative media amplification machine. So now, as 41 percent of conservatives choose not to get vaccinated, cases are up nationwide but especially in states where vaccine rates are low. The repercussions are dire. In Florida and Arkansas, every county is recording “high transmission” rates. In Alabama, doctors describe dying patients begging for the vaccine—but it’s too late.

None of this is surprising. From encouraging lockdown protests to eschewing masks and downplaying the severity of the virus, the GOP followed the lead of its president and underplayed science. Even when its standard bearer, former President Donald Trump, contracted the virus and was hospitalized, nothing changed. Trump had a particularly contradictory stance: at once whining about not getting enough credit for the vaccine, opting to get quietly vaccinated before he left office, and doing nothing to encourage his supporters to get their shots. He just further added to the politicization of it all by making fun of mask-wearing and insisting the virus was nothing to be afraid of even after his hospitalization.

Republican governors have had to contend with the tragic surge of cases firsthand. Last week, Alabama Republican Gov. Kay Ivey begged her constituents to get vaccinated. Since it is crucial to cast blame for rising COVID rates—new infections are up 84 percent in her state—at anyone but Republicans, she targeted unvaccinated people. “It’s time to start blaming the unvaccinated folks, not the regular folks,” she said. “It’s the unvaccinated folks that are letting us down.” (And not the people who encouraged them.) But even though Ivey declared a state of emergency in her state in March 2020, she’s been pushing the “personal responsibility” narrative, signaling that the danger has passed. “Evidence clearly indicates that the worst is behind us,” Ivey said way back in May 2020, when she announced the lifting of restrictions. 

In Arkansas, Republican Gov. Asa Hutchinson said on CNN’s State of the Union that he blames the resistance to getting vaccinations on “myths” and “false information.” Not that he has any responsibility for the crisis unfolding in his state. “I made the decision that it’s really not what the government can tell you to do,” he told host Jake Tapper, “but it is the community and their engagement and citizens talking to other citizens and trusted advisers.” Hutchison does, however, believe the state government can tell you what to do when it comes to mask-wearing. Earlier this year, he approved a statewide ban on mask mandates. The law, which was introduced in March, does not allow any local jurisdictions to require masks. 

Earlier this week, 16 of the 27 members of Tennessee’s GOP Senate caucus released a letter urging the public to get vaccinated. “Unfortunately, efforts to get more people vaccinated have been hampered by politicization of COVID-19,” the letter said. “This should not be political.” But earlier this week, under pressure from GOP lawmakers, the state’s health department halted all vaccine outreach to minors—for all diseases, not just COVID-19. Only about 39 percent of Tennesseans have received a COVID vaccine. As my colleague Hannah Levintova reported, a beloved Nashville conservative talk radio host was recently hospitalized with severe COVID and begged his listeners to ignore his previous skepticism and get the shot. 

But perhaps most egregious of all is Sarah Huckabee Sanders, who is not even an elected official. Sanders, who is known for being former Arkansas Gov. Mike Huckabee’s daughter and Trump’s press secretary for two years, is challenging Hutchison to be Arkansas’ next governor. So, naturally, she had to weigh in on the surge in her state in an op-ed—placing the blame on none other than…President Joe Biden and Vice President Kamala Harris! “If President Biden, Vice President Harris, and others on the left truly care about increasing the vaccination rate and saving lives,” she wrote, “they should admit they were wrong to cast doubt on Operation Warp Speed and give President Trump and his team the credit.”

When Trump was still in charge and downplaying the virus, he was also bragging about Operation Warp Speed, a government program that fast-tracked the vaccine. At presidential debates, Harris and Biden both said that they would take a vaccine, only if it had been approved by scientists and public health officials—not the former president. (After all, Trump had once wondered aloud about ingesting bleach to kill the virus.) But Sanders took their comments out of context and said that because Harris and Biden had cast doubt on the vaccine, people in Arkansas are hesitant. Never mind the mind-blowing premise here. Does Sanders really expect us to believe that Republican voters are taking their cues from Biden and Harris? 

The latest coronavirus surge has led the Centers for Disease Control and Prevention to reissue a mask recommendation even for vaccinated individuals in states where there has been a surge of infections of the new variant. The current state of the public health crisis now feels eerily similar to summer 2020, when no vaccines were available. After all, Republican governors like Texas Gov. Greg Abbott yet again will contort that narrative in the most destructive way. 

On a personal level, it can be frustrating to see so many people choose not to get vaccinated. They’ve made things more dangerous for everyone. But railing against them, as Ivey did, is misguided. The idea that personal freedom is more important than public health has become a do-or-die tenet for Republicans—literally. There’s something obscene about seeing them act surprised by what their own voters truly believe. The GOP leadership has turned masks, lockdowns, and now vaccines into a culture war. Conservatives spent so much time owning the libs, they forgot to care about the lives of their constituents. The increase in infections, hospitalizations, and deaths is indeed tragic for everyone. But Republican leaders have no one to blame but themselves.

893,000 shipping containers, resulting in some 3.7 million metric tons of carbon dioxide emissions.

What’s the True Cost of Shipping All Your Junk Across the Ocean?

“Our report affirms that these retail giants’ dirty ocean shipping is fueling the climate crisis.”

MARIA GALLUCCI

Take a look around your home and you’ll likely find plenty of goods that traveled by cargo ship to your doorstep. A set of IKEA plates made in China. A dresser full of pandemic-era loungewear, ordered on Target and made in Guatemala, Sri Lanka, and Vietnam. Tracing the impact on the environment from shipping any of these goods is incredibly tricky to do. The data—if you can find it—involves many companies, countries, and cargo carriers. 

Such obscurity makes it hard to count the full cost of our consumption. But a recent report helps unravel some of the mystery.

Two environmental groups, Pacific Environment and Stand.earth, worked with prominent maritime researchers to track goods imported by the 15 largest retail giants in the United States. They then quantified the greenhouse gas emissions and air pollutants associated with those imports usually ferried across the oceans on cargo ships running on dirty bunker fuel. In 2019, importing some 3.8 million shipping containers’ worth of cargo generated as much carbon dioxide emissions as three coal-fired power plants. These shipments also produced as much smog-forming nitrous oxide as 27.4 million cars and trucks do in a year, according to the report. 

“Our report affirms that these retail giants’ dirty ocean shipping is fueling the climate crisis,” said Madeline Rose, climate campaign director for Pacific Environment and the study’s lead author. 

The study is the first to trace retailers’ shipping-related emissions, and it used data from a separate, larger project to track the industry’s emissions that’s set to launch in October. The findings are likely just a snapshot of the true environmental toll: Researchers said they could only verify emissions for one-fifth of shipments by the 15 retailers, owing to a lack of data and the companies’ use of shell companies and franchises.

The largest retail company in the United States, Walmart, was also the biggest polluter of the bunch. In 2019, Walmart imported enough goods to equal 893,000 shipping containers, resulting in some 3.7 million metric tons of carbon dioxide emissions. 

Maritime shipping is a crucial part of the global economy. About 80 percent of everything bought and sold travels on oil-burning, seafaring freighters at some point. All that shipping activity accounts for nearly 3 percent of the world’s annual greenhouse gas emissions, as well as a significant share of air pollution in coastal communities. The International Maritime Organization, which regulates the industry, has recently adopted measures to curb cargo ship emissions and reduce fuel consumption. But experts say stronger regulations and bigger investments are needed to steer the industry away from fossil fuels and toward cleaner technologies, such as hydrogen fuel cells, batteries, and wind-harnessing devices.

Another way to spur companies to action is through accounting—figuring out how many emissions are produced by which activity, from which company, at which location. In the world of ocean freight, a shipment of cargo can pass through many hands and even owners between the time it leaves a factory and reaches a warehouse on the other side of the planet. The goal of the new research, Rose said, is “to bring baseline environmental and public health accounting oversight to this incredibly murky issue.”

For the report, the environmental groups commissioned University Maritime Advisory Services, or UMAS, a well-regarded research consultancy in London. UMAS has developed a proprietary tool for estimating fuel consumption and emissions from individual ships and is also a partner in the SEA-CASE project at the Stockholm Environment Institute. That initiative has gathered billions of records on vessel movements, detailed shipment lists, import and export data, and other information from big economies like the United States, Brazil, and China.

“Once you combine all of that data, it’s a very powerful thing,” said Javier Godar, a senior research fellow at the Stockholm Environment Institute, who was not directly involved in writing the July report. “You can really start looking at responsibility for those emissions.”

After Walmart, the next top polluter in the report was Ashley Furniture, which imported 270,000 containers and generated over 2.2 million metric tons of CO2. Next up was Target, with some 600,000 containers and over 2 million metric tons of CO2. Researchers could only track some 123,000 container imports for Amazon, a company whose 2019 revenues topped $280 billion. Those imports were responsible for more than 390,000 metric tons of emissions.

Representatives from Walmart and Amazon didn’t comment directly on the study but provided information on their companies’ efforts to curb emissions from their supply chains. In response to a request for comment, a Target spokesperson said the company is committed to “reducing our shipping carbon footprint,” as it works toward becoming a “net zero enterprise” in its operations and supply chain by 2040.

A spokesperson from IKEA, which came in seventh place for CO2 output, said addressing emissions from cargo ships is “a significant topic” for the Swedish furniture giant. Ocean shipping accounts for about 40 percent of IKEA’s total carbon emissions from transportation. The spokesperson said the company is working to reduce its carbon footprint from every shipment by 70 percent on average by 2030. To that end, IKEA participated in a 2019 pilot project to test biofuels in an ocean-going container ship. 

Researchers who worked on the retail-focused report said it took them months to scour and analyze data. And it’s taken years to develop the statistical models and build the database that underpin the recent findings. 

Godar said his ship tracking efforts began in 2014 with the launch of Trase, an online database that follows the flow of agricultural commodities that are driving deforestation in tropical countries. A United Nations report might show the total amount of soy shipped from Brazil. With Trase, however, the idea is to discern whether that soy came from, say, illegal logging in the Amazon rainforest or a legal farm elsewhere, and then follow that to the final customer.

Researchers are increasingly able to access such valuable information as more companies keep records in digital form, Godar said, and as the ability to “scrape” data from the internet improves. Still, there are limits. Most data isn’t publicly available, and it’s expensive for researchers to buy. Godar hasn’t been able to get a hold of shipping-related data from the European Union and other countries, which leaves an informational black hole.

A beta version of the SEA-CASE platform will launch this fall and be free for anyone to access. A preview over Zoom showed a flurry of yellow lines connecting continents, each one revealing a detailed breakdown of a particular voyage in 2019. A casual user could, for example, trace coffee imports by Starbucks into the United States, then see the carbon emissions associated with the shipments.

Ultimately, this kind of information could help consumers push retailers to cut carbon emissions from their suppliers, said Gary Cook, the global climate campaigns director for Stand.earth. Cook previously led Greenpeace campaigns challenging tech giants like Facebook and Apple to stop powering their data centers with coal-fired electricity and replace it with renewable energy. 

“Companies can move very fast when motivated,” he said. “It’s to their advantage to show their loyal customers they care about the climate and are taking action.”

Variant more contagious

Why is the delta variant more contagious than original strain?

Michelle Robertson

It's been widely stated that the delta variant of the coronavirus currently raging across the U.S. and world is more contagious than the original strain and even previous variants. But why?

To find out, SFGATE spoke with two experts, Stephen Morse, a professor of epidemiology at the Columbia University Medical Center, and Fenyong Liu, a professor of infectious diseases at the University of California at Berkeley.

Both stressed that what we know about the delta variant at this time remains limited, as it only recently emerged. But they can speculate as to what makes this strain so much more contagious than previous ones.

"Current evidence suggests that in the upper respiratory tract, delta replicates (grows or reproduces) faster and to higher levels," Morse said by email. "This would plausibly explain its increased transmissibility."

Morse cited a preprint study from China and collaborators that suggested that more virus was produced in infected individuals — about 1,000-fold more than the original strain. He also noted that the average time from infection to being able to readily detect the virus was about four days, compared to about six days during the original outbreak. 

"A caveat is that data are limited, may not apply to all cases, and there are still other hypothetical reasons that a variant could be more transmissible," he said. 

He stressed that more data is needed before we can state the reasons for its increased virulence "with confidence." 

He also noted that just because the viral load is up to 1,000 times higher with the delta variant doesn't necessarily mean it's 1,000-fold more transmissible. Rather, the delta variant appears severalfold more transmissible than the alpha variant. 

Liu also noted that the delta variant is much better at binding to cell receptors than the original strain. This means it can replicate much faster and be detected earlier. 

"So when a person coughs or sneezes, it potentially spreads out much more viruses than the variants or the original strain," he said. 

He added cautiously: "I don't think we understand the reasons quite yet, we just know it happens." 

Liu also stressed the importance of getting vaccinated. He noted that while the variant can still cause symptoms in vaccinated people, its effects are typically much less severe, and likely will not result in serious illness or hospitalization. 

"We have hope because we can really increase vaccination rates," he said. "We really need to stop the replication of the virus, we need to stop new infections. Because humans are the selection force of the virus." 

Liu, like Morse, also fears future variants that will be potentially worse than the delta variant as the COVID-19 virus continues to replicate. The more people who contract the virus, the more likely new variants will occur. 

"We are observing the real-time evolution of a virus," he said. "Hundreds of millions have been infected and the virus will just keep evolving." 

Morse echoed Liu's comments. "If one [variant] can win the race against earlier variants, it could become the next delta," he said. "That's why we're encouraging everyone to get immunized as quickly as possible, and to continue exercising caution, such as wearing masks when indoors."

The Tulip and Cygnus X-1

This tall telescopic field of view looks out along the plane of our Milky Way Galaxy toward the nebula rich constellation Cygnus the Swan. Popularly called the Tulip Nebula, the brightest glowing cloud of interstellar gas and dust above center is also found in the 1959 catalog by astronomer Stewart Sharpless as Sh2-101. Nearly 70 light-years across the complex and beautiful Tulip Nebula blossoms about 8,000 light-years away, shown in a Hubble palette image that maps the glow of the nebula's sulfur, hydrogen, and oxygen ions into red, green, and blue colors. Ultraviolet radiation from young energetic stars at the edge of the Cygnus OB3 association, including O star HDE 227018, ionizes the atoms and powers the emission from the Tulip Nebula. Also in the field of view is microquasar Cygnus X-1, one of the strongest X-ray sources in planet Earth's sky. Driven by powerful jets from a black hole accretion disk, its fainter bluish curved shock front is only just visible though, directly above the cosmic Tulip's petals near the top of the frame.

Not Water

Clays, Not Water, Are Likely Source of Mars ‘Lakes’

Where there’s water, there’s life. That’s the case on Earth, at least, and also why scientists remain tantalized by any evidence suggesting there’s liquid water on cold, dry Mars. The Red Planet is a difficult place to look for liquid water: While water ice is plentiful, any water warm enough to be liquid on the surface would last for only a few moments before turning into vapor in Mars’ wispy air.

Hence the interest generated in 2018, when a team led by Roberto Orosei of Italy’s Istituto Nazionale di Astrofisica announced they had found evidence of subsurface lakes deep below the ice cap at Mars’ south pole. The evidence they cited came from a radar instrument aboard the ESA (European Space Agency) Mars Express orbiter.

Radar signals, which can penetrate rock and ice, change as they’re reflected off different materials. In this case, they produced especially bright signals beneath the polar cap that could be interpreted as liquid water. The possibility of a potentially habitable environment for microbes was exciting.

But after taking a closer look at the data, along with experiments in a cold laboratory here on Earth, some scientists now think clays, not water, might be creating the signals. In the past month, a trio of new papers have unraveled the mystery – and may have dried up the lakes hypothesis.

A Scientific Ecosystem

Martian polar scientists belong to a small, tight-knit community. Not long after the lakes paper was published, about 80 of those scientists met for the International Conference on Mars Polar Science and Exploration in Ushuaia, a seaside village at the southern tip of Argentina.

Gatherings like these provide an opportunity to test new theories and challenge each other’s perspectives. “Communities can generate their own little scientific ecosystems,” said Jeffrey Plaut of NASA’s Jet Propulsion Laboratory, one of the scientists who traveled to the conference. He’s also the co-principal investigator, along with Orosei, of the instrument behind the intriguing radar signals, called MARSIS, or the Mars Advanced Radar for Subsurface and Ionospheric Sounding. “These communities can be self-sustaining,” he continued, “because you bounce a question off someone and maybe a year or two later they help you figure out an answer.”

Lots of talk centered on the subsurface lakes. How much heat would it take to keep water liquid under all that ice? Could brine be lowering the freezing point of the water enough to keep it liquid?

Of course, it wouldn’t be the first time an exciting water-related hypothesis set off a flurry of investigations. In 2015, NASA’s Mars Reconnaissance Orbiter found what looked like streaks of damp sand running down slopes, a phenomenon called “recurring slope lineae.” But repeated observations using the spacecraft’s HiRISE – or High-Resolution Imaging Science Experiment – camera have since revealed this is more likely the result of sand flows. A paper released earlier this year found many recurring slope lineae after a global dust storm on Mars in 2018. The finding suggested that dust settling on slopes triggers sand flows, which, in turn, expose the darker subsurface materials that give the lineae their distinctive coloration.

As with the damp-sand hypothesis, several scientists began thinking up ways to test the subsurface-lakes hypothesis. “There was a feeling that we should try to address this,” said Isaac Smith of York University in Toronto, who organized the conference in Ushuaia and led the most recent study showing that clays can explain the observations.

Too Cold for Lakes

Among those scientists was Plaut. He and Aditya Khuller, an Arizona State University doctoral student who was interning at JPL, analyzed 44,000 radar echoes from the base of the polar cap across 15 years of MARSIS data. They turned up dozens more bright reflections like the ones in the 2018 study. But in their recent paper published in Geophysical Research Letters, they found many of these signals in areas close to the surface, where it should be too cold for water to remain liquid, even when mixed with perchlorates, a kind of salt commonly found on Mars that can lower the freezing temperature of water.

Two separate teams of scientists then analyzed the radar signals to determine whether anything else could be producing those signals.

Carver Bierson of ASU completed a theoretical study suggesting several possible materials that could cause the signals, including clays, metal-bearing minerals, and saline ice. But York University’s Isaac Smith, knowing that a group of clays called smectites were present all over Mars, went further in a separate, third paper: He measured smectite properties in a lab.

Smectites look like ordinary rock but were formed by liquid water long ago. Smith put several smectite samples into a cylinder designed to measure how radar signals would interact with them. He also doused them with liquid nitrogen, freezing them to minus 58 degrees Fahrenheit (minus 50 degrees Celsius) – close to what they would be at the Martian south pole.

“The lab was cold,” Smith said. “It was winter in Canada at the time, and pumping liquid nitrogen into the room made it colder. I was bundled up in a hat, jacket, gloves, scarf, and a mask because of COVID-19. It was pretty uncomfortable.”

After freezing the clay samples, Smith found their response nearly perfectly matched the MARSIS radar observations. Then, he and his team checked for clays present on Mars near those radar observations. They relied on data from MRO, which carries a mineral mapper called the Compact Reconnaissance Imaging Spectrometer, or CRISM.

Bingo. While CRISM can’t peer through ice, Smith found smectites scattered in the vicinity of the south pole’s ice cap. Smith’s team demonstrated that frozen smectite can make the reflections – no unusual amounts of salt or heat are required – and that they’re present at the south pole.

There’s no way to confirm what the bright radar signals are without landing at Mars’ south pole and digging through miles of ice. But the recent papers have offered plausible explanations that are more logical than liquid water.

“In planetary science, we often are just inching our way closer to the truth,” Plaut said. “The original paper didn’t prove it was water, and these new papers don’t prove it isn’t. But we try to narrow down the possibilities as much as possible in order to reach consensus.”

GOP steps up vaccine push

Senate GOP steps up vaccine push amid lingering conservative skepticism

“I am pro-life, and that’s not just for the unborn. It’s for those that are living,” Sen. Mitt Romney said.

By BURGESS EVERETT

Top Senate Republicans are dramatically stepping up their pro-vaccine outreach as several of their home states lag behind national Covid inoculation rates and mask recommendations return in many areas.

Senate Minority Leader Mitch McConnell (R-Ky.) is running ads in his home state to combat disinformation, Sen. Roy Blunt is barnstorming Missouri and Sen. Tommy Tuberville of Alabama says “anytime we’re on a press conference, we say something about vaccinations." Several GOP senators released new PSAs in the wake of guidance issued Tuesday by the Centers for Disease Control and Prevention to wear masks in areas of high transmission.

“It’s the way out of this,” Blunt said in an interview, shortly after he read aloud several vaccine testimonials at Republicans’ leadership press conference. “This is a virus where, if you get very smug about how you think you’ve handled it, you’re about to get run over by a train.”

With his state reeling from the surging Delta variant, Blunt praised President Joe Biden’s work on Covid with a caveat: “I actually think he’s generally doing a good job. I continue to think that we’d be better off if CDC was more transparent about all the numbers they have.”

Former President Donald Trump, still the party’s most important figure, is mostly concentrated on grievances unrelated to the pandemic. Across the Capitol, House Republicans have sent mixed messages and are far less likely to be vaccinated themselves. So the Senate GOP is diving into the difficult project of trying to convince its voters to get the jab, worried that spiraling infection rates in their home states will worsen, well, everything as the country tries to go back to normalcy.

For the most part, Republican-dominated states lag behind Democratic-leaning ones when it comes to vaccination rates, with states like Alabama and Missouri leading the way in hesitancy. So most Senate Republicans are trying to fill the void by using their national platforms, even as Democrats see their efforts as helpful but coming far too late.

Sen. Mitt Romney (R-Utah) said the Republican conference held no meeting about stepping up outreach on vaccinations, noting that he, Blunt, McConnell and others have been vocal for months. But Romney acknowledged there is an “organic” effort among his colleagues to promote vaccines because “the Delta variant is here, and if it causes another major spike in this country, it will have huge implications.”

“The idea that this is a political issue is beyond me. This is an issue that is keeping people alive," Romney said. "I am pro-life, and that’s not just for the unborn. It’s for those that are living. And I don’t want people to die."

The accelerating effort to combat their party's conservative vaccine skeptics became increasingly obvious in the past 24 hours. Sen. Lisa Murkowski (R-Alaska) released a video arguing the only way to ditch masks is with the vaccine, and Sen. Richard Burr (R-N.C.) gave an urgent statement urging everyone to get their shots.

Not every Senate Republican is pushing harder to raise vaccination rates; Ron Johnson (R-Wis.) has publicly expressed doubts about them and released a statement questioning the proven effectiveness of masks in stopping Covid transmission. And the GOP senators starting to speak louder warn their constituents may be harder to sway if masks are required for the vaccinated.

Nonetheless, they aim to sell people back home to help put the pandemic behind them.

“We now have a body of clinical data on these vaccinations that far exceeds any medication that everybody takes every morning. So there should be nobody that says ‘this has been rushed, we don’t know what it does,'” Burr said. “We know a hell of a lot about the vaccine.”

In Kentucky, McConnell is launching a five-figure radio campaign across more than 100 stations in his state, according to a source familiar with the effort, who said it’s just a “first step” in what will become a larger effort to raise the Bluegrass State’s vaccination rates. A polio survivor, McConnell has been a leading advocate of vaccinations on the Republican side and references his childhood affliction in the new ads.

“Every American should take advantage of this miracle, and get vaccinated. It’s the only way we’re going to defeat Covid,” McConnell says in the ads, according to a script provided to POLITICO. Reuters first reported that McConnell would use campaign funds to run those ads.

Of course, the GOP approach is far different than Democrats'. In general, Republicans are more accepting that some percentage of people in their states simply won’t get vaccinated at the rates seen in places like New England and the West Coast. Vaccine and mask mandates, they say, will not work in the South and center of the country.

And count House Speaker Nancy Pelosi as not particularly impressed with the Senate GOP’s vaccination messaging or McConnell’s new ads.

“I’m glad that he’s doing those ads, long overdue. This was so self-evident and obvious. Maybe they were getting ... political backlash,” Pelosi said on Wednesday. “Certainly the Republican Party has been delinquent in embracing the science.”

Several Senate Republicans have criticized the Biden administration’s new guidance for even the vaccinated to wear masks at certain times as counterproductive to convincing unvaccinated people in red states. Murkowski said it was not a hopeful sign in her state, which once was at the top of vaccination rates but has slipped as time went on.

“I don’t want news like this to actually discourage people from getting the vaccine. They may look at this and say: Well, there’s proof the vaccines don’t ‘work.’ That’s far from it,” Murkowski said. “We’re dealing with a population that is looking for those excuses not to get the vaccine.”

Even in the wake of new guidance on Capitol Hill recommending — but not requiring — masks in the Senate, Democrats were far more likely than Republicans to wear masks on Wednesday and less likely to criticize the Biden administration’s new guidance. Several Republican senators have declined to get vaccinated or say whether they have been vaccinated. Still, their inoculation rates are much higher than those of House Republicans.

While some Republican senators use their microphones every chance they get to mention vaccine safety, others take a different tack. Sen. Josh Hawley (R-Mo.) said that a heavy-handed approach won’t work in his state and tries to take a gentler touch in convincing his constituents.

“I say ‘I decided to get vaccinated because I thought the vaccines were very effective, we’ve got young children at home and a young baby.' I try to personalize it,” Hawley said. The idea of going door to door, he added, makes “people think they’re going to get forced by the government to make a medical decision … that’s the end of the conversation.”

Others tie their attitudes to their conservative principles. Though he promoted his vaccination as soon as he got the jab in the winter, Sen. Marco Rubio (R-Fla.) said there are limits to what government officials can do. Though he said he touts the vaccines every chance he gets, he added that “in a free society” it’s ultimately up to individual people — not him.

“Our job in government is not to force people to do things they don’t want to do. Our job for the most part is to tell people: ‘here’s what the information says, here’s what I’ve done,’” Rubio said. “It’s up to them to decide whether they want to be vaccinated. And I just know people are not going to be vaccinated, no matter what.”

$3.5 trillion spending package

AOC tangles with Sinema over $3.5 trillion spending package

Sen. Kyrsten Sinema's statement that she'll want changes to Democrats' $3.5 trillion spending package provoked progressive anger.

By BURGESS EVERETT

Kyrsten Sinema will move forward on Democrats' plans to craft a massive partisan spending bill running into the trillions, but indicated at the same time that she will seek to pare down the package's cost, infuriating progressives in the House.

The moderate Arizona Democrat said in a statement that she has informed Senate leaders and President Joe Biden that she will advance a budget proposal that allows a subsequent spending bill of up to $3.5 billion backed by most Senate Democrats. And though she supports "many of the goals in this proposal," she'll want changes to the final product.

"While I will support beginning this process, I do not support a bill that costs $3.5 trillion — and in the coming months, I will work in good faith to develop this legislation," Sinema said on the same day she neared finalization of her own bipartisan physical infrastructure bill.

The two efforts, paired together, represent Biden's jobs and families plan. And her statement is both good news and bad news for Democrats. On one hand, it shows she will help pass a budget before the August recess. On the other, it shows that Democrats have to eventually further slim their ambitions as they seek to finish Biden's agenda via budget reconciliation, which requires only a simple majority in the Senate.

Sinema's statement provoked instant outrage from progressive House Democrats. Rep. Alexandria Ocasio-Cortez (D-N.Y.) tweeted: "Good luck tanking your own party’s investment on childcare, climate action, and infrastructure while presuming you’ll survive a 3 vote House margin." And Rep. Mondaire Jones (D-N.Y.) said "without a reconciliation package that meets this moment, I’m a no on this bipartisan deal" negotiated by Sinema.

The budget bill will simply direct committees to begin writing reconciliation spending legislation that can evade a GOP filibuster, as Democrats seek to raise taxes on the wealthy and vastly expand paid leave and child care and fight climate change. The final spending bill will ultimately not pass either chamber until this fall as the Senate labors to finish Sinema's bipartisan bill and Congress' August recess approaches.

Sen. Joe Manchin (D-W.Va.) has not explicitly weighed in on the $3.5 trillion proposal. Sen. Jon Tester (D-Mont.), another moderate, has said he'll support the budget but that doesn't mean he's a lock on the final product. Senate Democrats need lockstep unity to pass anything.

And Speaker Nancy Pelosi (D-Calif.) has made clear Sinema's bill won't come to the House floor until that reconciliation bill passes the Senate.

Rift on the Supreme Court

What’s Behind the Conservative Rift on the Supreme Court

Many court watchers are still paying attention only to how liberal or conservative the justices are. But there’s another factor at work.

Opinion by SARAH ISGUR

After Amy Coney Barrett replaced Ruth Bader Ginsburg on the Supreme Court last fall, plenty of court watchers assumed that the bench would start churning out an endless line of conservative opinions. But that didn’t happen. While there were some conservative wins—most notably on the limits of the Voting Rights Act and unionizing—this past term was far more notable for all the sweeping conservative opinions that never came.

With six Republican appointees on the court, why aren’t we seeing the consistent conservative outcomes that the right cheered for and the left warned of?

The answer lies with the two-dimensional nature of the Supreme Court. Many court watchers are still plotting the justices along a single, horizontal axis of legally conservative to legally liberal. And they are left reaching for increasingly head-scratching explanations for why a justice like Brett Kavanaugh—with a long history of conservative opinions from his days as a lower court judge—can find himself often siding with someone who is quite liberal, or against another justice just as conservative.

But when it comes to the Supreme Court, there’s another axis at work too, which I call the “institutionalist” axis. On one end are justices who confine their considerations to what’s known in the legal world as “the four corners of the briefs”—the factual and legal analysis on the pages that advocates present to the court. On the other end are the institutionalists, who take into account factors beyond the reasoning laid out before them, like the importance of upholding past precedents of the court. When you consider the justices on this two-dimensional plot, with conservative to liberal on the horizontal axis, and “four corners” to institutionalist on the vertical axis, the recent decisions start to make more sense.

Consider the example of Justice Neil Gorsuch and Justice Brett Kavanaugh. Both adhere to conservative models of legal interpretation: originalism and textualism. Originalism—the one true faith of legal conservatives—is the idea that the Constitution “means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted,” as the late Justice Antonin Scalia put it. Textualism relies entirely on, as you might imagine, the text as the “the alpha and the omega of the interpretive process,” according to Fifth Circuit Judge Don Willett.

Gorsuch and Kavanaugh are both deeply conservative when viewed along this axis. They agreed that the text of the Voting Rights Act did not bar Arizona from requiring voters to cast their ballots in their assigned precincts because the measure was “a usual burden of voting” and not, as the statute required, an “abridgement of the right ... to vote on account of race or color.”

Of course, one need only look at last term’s Bostock decision to see that even those who subscribe to the same school of thought can strongly disagree on how to apply it. In that case, Gorsuch and Chief Justice John Roberts joined with the four liberals to hold that the word “sex” in a nondiscrimination statute necessarily included sexual orientation and gender identity. Kavanaugh along with the other conservatives in dissent argued that textualism required “courts [to] adhere to the ordinary meaning of phrases, not just the meaning of the words in a phrase.”

But where the real disagreements are happening today is along the institutionalist axis, where justices have very different opinions on the role of the Supreme Court. Toward the lower “four corners” end, justices like Gorsuch believe that a case’s outcome should be determined by the law and the facts of that case alone. But for a more institutionalist justice like Kavanaugh, the role of the court itself is an important factor. An institutionalist, for example, may believe the court is charged with leading the judicial branch by issuing opinions that will provide a clear and precise road map to lower courts that can guide their decisions in future cases; that outcomes should be practical and aid rather than hinder the efficient functioning of government; that precedent is important to follow because it affects the court’s credibility with the public; and that changes to the law should be incremental and narrow because “inconstancy and versatility,” as Edmund Burke put it, undermine the integrity of the rule of law itself. To put it perhaps too simply, Gorsuch’s conservative judicial philosophy is unaffected by the ramifications of the outcome of a case; Kavanaugh’s is.

The difference becomes even more clear when you look at the statistics of this term. Gorsuch fully agreed with Justice Clarence Thomas—arguably the most conservative justice on the court and a “four corners” justice too—73 percent of the time. Kavanaugh only fully agreed with Thomas 46 percent of the time—the same percentage that liberal Justice Elena Kagan agreed with Thomas.

As one example, Gorsuch and Kavanaugh disagreed on whether the directive that the government provide “a notice to appear” at a hearing in an immigration statute meant that the government had to put all of the information in “a” single document. Gorsuch—who wrote the majority opinion—held that the word “a” meant that the government needed to provide “‘a’ single document containing the required information, not a mishmash of pieces with some assembly required.” Kavanaugh dissented, arguing that Gorsuch’s reading “spawns a litany of absurdities” and will “impose serious administrative burdens on an immigration system that is already overburdened, thereby harming other noncitizens.”

As we saw in the Bostock case about sex discrimination, Kavanaugh may actually be to the right of Gorsuch along the conservative axis, but as with the case above, he is significantly above him on the institutionalist axis. And while we only have one term to affix Justice Barrett’s position, it’s increasingly clear that she is both quite conservative and often institutionalist.

On the liberal side, Justice Sonia Sotomayor is closer to “four corners,” while Elena Kagan is an institutionalist especially when it comes to upholding precedents of past courts. In a case about whether states were required to have unanimous jury verdicts in serious criminal cases, Kagan sided with Alito in dissent against the criminal defendant because she noted that the majority was overruling 50 years of precedent. At oral argument in the case, she said, “It doesn’t matter whether [the previous decision] was wrong because overruling something requires more than just the decision be wrong.” Last term, Kagan didn’t author any opinion that altered the court’s precedent while Sotomayor only authored one opinion that didn’t alter the court’s precedent.

Understanding this second axis changes how each side may want to consider future judicial nominees. As Republicans have learned, nominating a justice with a conservative track record is no guarantee of what kind of justice he or she will be if they don’t take into account the institutionalist axis. They have been so wholly focused on screening potential nominees for their ideology that they might have discounted any serious inquiry into their institutionalist philosophy. Whether conservative or liberal, partisans tend to dislike institutionalist judges for the very reason that their opinions are influenced by something other than conservative or liberal legal ideology. (This is also why Republicans are quick to venerate Justice Samuel Alito, a conservative four corners justice, but view the chief justice, a conservative institutionalist, as a traitor.)

Of course, it’s hard to discern institutionalist philosophy before a justice makes it onto the Supreme Court, since it’s all about how the justice sees his or her role on that court. Most nominees previously served as appellate judges on a lower court where they never had the opportunity to overturn Supreme Court precedent. And our scripted confirmation hearings are unlikely to give a window into that thinking either. Kagan, a justice who has turned out to be a high institutionalist, told the Senate Judiciary Committee, “In many circumstances, precedent is the most important thing,” and Gorsuch, who turned out to be a relatively low institutionalist, told them that “You start with a heavy, heavy presumption in favor of precedent in our system.”

This dynamic marks an interesting era for the Supreme Court, one in which the outcomes won’t be as predictable as many assume they will be. In one telling statistic, there were eight cases that divided 5-4 this term, with five different alignments of justices. Kagan joined Alito, Thomas, Gorsuch and Barrett in one case. Thomas joined with Stephen Breyer, Sotomayor and Kagan in two cases. It’s also why it is incorrect to think of today’s Supreme Court as a 6-3 court. We really have a 3-3-3 court, with 3 conservative institutionalists, 3 conservative “four corners” justices and 3 liberals. (The “four corners”/institutionalist split among liberals seems to have less bearing on the cases’ outcome.)

Statistics support this 3-3-3 alignment as well. Liberals Breyer, Sotomayor and Kagan agreed with each other on the outcome of cases 76-85 percent of the time according to SCOTUSBlog, and Roberts, Kavanaugh and Barrett, all conservative institutionalists, agreed 75-84 percent of the time. In both cases, those in the trios agreed with each other more than with any of the other justices. Interestingly, the three that are often described as the most conservative—Thomas, Alito and Gorsuch (the four corners justices)—fully agreed with each other less often. That’s probably not because of their institutional differences, but because they don’t all share the same conservative judicial philosophies.

It’s possible, of course, that these odd alignments are the growing pains of a new court. But perhaps this is the new court. If so, it would mean a court that is far less predictable along the ideological liberal-conservative axis, which will potentially build credibility for the court with the public over time and undermine efforts by either side to capture the court by adding seats or restricting its jurisdiction. But with the impending exit of Breyer and Thomas in the years to come, partisans on both sides will undoubtedly learn to look for justices that are low institutionalists and therefore are more predictable along the horizontal, ideological axis.

In the meantime, this fall the court will begin a term that could decide whether to overturn Roe v. Wade, whether there is a constitutional right to carry a gun outside the home and whether colleges can continue to use race in their admissions processes. But don’t look for clear-cut wins for one or another political side: With this new court, it’s likely both sides will be dissatisfied with the outcomes.

Misleading marketing....

Appeals court deals setback to Trump in fraud suit

Federal judges rejected the former president’s effort to force arbitration in a case alleging misleading marketing for the business services firm ACN.

By JOSH GERSTEIN

A federal appeals court has rejected an attempt by former President Donald Trump and three of his children to force arbitration in a class-action lawsuit accusing him of fraud during the decade he spent as a pitchman for ACN, a business services company featured on “Celebrity Apprentice.”

The New York-based 2nd U.S. Circuit Court of Appeals ruled Wednesday that the Trump Organization, the former president and his children could not take advantage of an arbitration clause ACN placed in its contracts with so-called independent business owners who signed up to sell telephone and other services to other businesses.

A federal lawsuit filed against the Trumps and their company in 2018 accused the real estate tycoon of repeatedly making false public claims about ACN and failing to disclose that he was paid millions of dollars to endorse the multilevel marketing company. The plaintiffs in the suit say they signed up to sell ACN’s services and paid significant sums of money for the opportunity but saw virtually no income.

The suit, backed by a nonprofit group critical of Trump, did not name ACN as a defendant but did seek documents from the company by subpoena.

The 3-0 decision from the 2nd Circuit said that third parties can sometimes avail themselves of arbitration, which is generally seen as friendlier to large businesses than the courts, but that Trump’s role here did not call for applying the arbitration clause to cover him, his children or his company.

“Central to the plaintiffs’ theory of fraud is that the defendants misled the plaintiffs to believe that the defendants and ACN were independent of one another and that the defendants were endorsing and promoting ACN based on an objective outside assessment of the value of ACN’s business opportunity,” Judge Robert Sack wrote in an opinion joined by Judges Raymond Lohier and Denny Chin. “Consistent with this understanding, there is no evidence to suggest that the plaintiffs treated the defendants as if they were effectively parties to the … agreement.”

Indeed, the contracts signed by those who agreed to market for ACN said that the agreement was only with ACN and not any of its service providers or “other party with whom ACN transacts or contracts business.”

Sack was appointed by President Bill Clinton. Lohier and Chin are appointees of President Barack Obama.

The appeals court panel also rejected ACN’s effort to use the arbitration clause to refuse to turn over documents in the case.

Spokespeople for the Trump Organization did not immediately respond to messages seeking comment on the decision. They could ask the full bench of the 2nd Circuit to hear the case or seek review at the Supreme Court.

ACN said in a statement that it had been unfairly pulled into a lawsuit fueled by politics.

“ACN is not a political organization and is proud to welcome individuals from all walks of life,“ the firm‘s statement said. “ACN’s business relationship with Mr. Trump started and ended before his run for national office. It is unfortunate that ACN’s name and business have been impugned in connection with this politically-motivated and funded lawsuit. To be clear, ACN categorically denies the allegations made in the lawsuit against it and its business.“

The lead counsel for the plaintiffs, Roberta Kaplan, hailed the appeals court’s ruling.

“We … are excited to resume discovery in this important case about a years-long consumer fraud on hard working Americans perpetrated by Donald Trump and three of his adult children,” Kaplan said in a statement. “We have pending subpoenas out to ACN and MGM and look forward to receiving the documents and Celebrity Apprentice tapes responsive to those subpoenas. And we similarly intend to press the Trumps to complete their document production so that we can begin taking depositions as soon as possible.”