Trump's Administration has finally taken notice of Rule 65(c) when it comes to Federal Courts.

(c) Security. The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained. The United States, its officers, and its agencies are not required to give security.

This is not discretionary and the court cannot assess a "de-minimus" security amount either; it must be defensible predicated on the costs and damages that the other party may or will suffer with the evidence of same in the order itself if the injunction or TRO issues until disposition of the case and the posting of said security has to be completed before the TRO or injunction is valid.

If, for example, you demand a payment that was frozen be unfrozen and the reason for allegedly freezing it is either executive discretion or suspected fraud you have to post up both the other side's projected legal bill and the full amount of the payment because if the injunction issues and in the fullness of time it is proved either fraudulent or within executive discretion to withhold odds are extremely high that said funds will be entirely unrecoverable.

Further, that security (either cash or a surety bond) is partially or entirely forfeit if the moving party drops the case; in that circumstance the enjoined party then files a motion laying out their costs and harms which is certainly subject to rebuttal and decision but the funds are impounded already to pay same so any release of that security is subject to those claims.

I pointed this out as soon as the suits commenced against the Trump Administration actions.

Anyone who has contemplated (say much less actually litigated) suing in federal court knows about this as his or her attorney has so-advised, and counsel that practices in the federal system are all very aware of this.  It is one of the reasons that injunctions are, relatively-speaking, somewhat rarely sought in federal court: If you seek one you're going to have to post up the potential harm to the other side when you do so and that is usually pretty darn expensive because in addition to the damage you get tagged, in every case, for the other side's legal fees if you lose.

Injunctions and TROs are frequently abused in the state courts and the reason is that in most states the requirement for an injunction bond is discretionary.  For example Illinois' statutes state:

Sec. 11-103. Bond. The court in its discretion, may before entering a restraining order or a preliminary injunction, require the applicant to give bond in such sum, upon such condition and with such security as may be deemed proper by the court, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained.

No such bond shall be required of any governmental office or agency.

Note the difference; this is why TROs and injunctions are very common, even ex-parte, in (for example) divorce cases.  Throwing someone out of their house, for example, on an ex-parte basis absolutely causes damage (they must pay for substitute housing) and causes them to incur significant legal expenses.  In federal court if you demand such a remedy you must post up security in case you ultimately lose but in state court the judge has discretion and does not need to do so and if he doesn't, and you drop the TRO or injunction when challenged on it you aren't forced to cover the other side's damages and legal costs.

In state courts such filings are thus routinely used to "tilt the playing field" or "establish a pattern" that a judge is then reticent to change, especially if there is no judicial record ever established that the person who did it had ill intent -- and if when challenged they drop the injunction there's no judicial record of what it was done originally.  You might say that doing so implies ill intent and you might even be right but there's no proof, the movant will always state they had "information and belief" sufficient to do so originally and thus the practice continues.

Parties have made a mockery of Rule 65(c) in the federal courts over the last couple of decades when it comes to demanding injunctions against federal actions, especially when they demand and get national-scope injunctions that go beyond the federal district in question.

Consider a federal suit to block, for example, a pipeline with a demanded TRO and/or injunction.  The moving party, if they have to post up the hundreds of millions or even billions of costs and damages that will be incurred if they lose will cause them to think twice about how strong their case actually is.  If you win then you get your security back, but if you dismiss the complaint or lose you're hosed and the security you put up is gone in whole or part, subject only to the damaged party's capacity to prove up the injury.

The federal court system has long been thought of as the "more reasonable" from a civil perspective in that you are an idiot to bring questionable claims, especially if you try to obtain injunctive relief.  It is one thing to sue and lose as in both cases fees and costs, whether federal or state, are speculative and not commonly awarded but an injunction has a requirement at the federal level that the moving party post up all of the reasonably-foreseeable costs and damages as security, in advance, if they lose.

Thus where is Pam Bondi with immediate emergency filings against all of the existing injunctions already issued demanding that security be posted up and computed in said public filing and, if there is any delay or refusal by the judges involved to do so taking an immediate emergency appeal as far as necessary including to the Supreme Court which, given the actual language in the Rules of Civil Procedure is a slam-dunk and immediate win?  No, demanding this only on a forward basis for future filings is not enough -- force the movants in all the existing injunctions to either post up security or dissolve the injunctions and TROs.

If our government expects we, the ordinary civilians, to adhere to and comply with the law they had better do so themselves especially when various parts of the government go to war legally with each other.

Its really rather simple: They have not gone along with "green energy" and as a result they have inexpensive and abundant energy.

The average Russian pays less than 10 cents/kWh (US converted cost) for electricity.  They have and do use some hydro and nuclear (about 20% each) but essentially all of the rest is carbon-based fueled.

Estonia of note recently told Russia to bite it and disconnected from their supply.  The result was a 50% increase in cost immediately.  While many are blaming this on cable disruptions the fact is that disconnecting from inexpensive and abundant sources has a price, and Estonians are paying it.

I will note that few places in the US have power costs anywhere near what Russia does and those that do are blessed with an abundance of hydro resource which is, of course, renewable (in that it rains) so once built your costs are confined to maintenance of the dam and generating turbines -- the "fuel" is provided by nature.  But most of the United States and Europe, as they have increasingly eschewed carbon-based fuels for energy, have seen meteoric increases in cost.  Were the citizens who allowed this and in many cases advocated for it given an honest assessment of said cost and did they thus accept it explicitly or were they lied to that "renewable energy" would be cheaper and better?

The truth is that renewables are neither cheaper or better in that they're unreliable and thus have to be backed up with something else because the wind does not always blow and the sun does not always shine -- in fact, at one of the times you want energy most, which is in the winter at 2:00 AM when its -20F outside the sun is never shining and wind is uncertain.  As a result you must have a reliable and dispatchable alternative available and pay for that infrastructure all of the time or your electrical supply becomes unreliable.

It may be that this trade-off is one that the people of a nation will voluntarily make, when fully-apprised of the impact on their personal life.  But one must also include in that the economic impacts and thus job impacts of such policy because behind every unit of economic output, which of course is the aggregate of all jobs and all labor, is a unit of energy.

All such choices have costs and while cleaning up energy production to a significant degree is inexpensive and quite easy completely doing so is in fact impossible no matter the form of energy unless you deliberately ignore some of the adverse effects and claim they don't exist.  Damming rivers, for example, does indeed have a disruptive impact, making solar panels requires highly-toxic chemicals and the contents of the panels are quite toxic as well (other than the glass on the front, which is fairly benign.)  Windmills require a huge amount of concrete to construct and the blades are non-recyclable, they're a petroleum product as they're made out of fiberglass and have a service life after which they must be replaced -- what do you do with the ones that are used up?

One serious problem in America is that inconsistency from administration to administration makes long-amortization projects uneconomic at the outset.  Nobody in their right mind is going to invest in something with a 20 or 40 year period during which it is expected to produce revenue when an administration can turn over in four year or Congress in two and suddenly outlaw it.  That leaves the investing firm with a smoking hole in their balance sheet and no recourse, thus firms will simply not spend the money beyond their own bare minimum requirements.

I put forward a potential long term energy policy 14 years ago ago that resolves many of these issues but without hard evidence that it would not be destroyed the next time someone else takes office nobody is going to do the engineering work to complete that and then build it out.  Such a policy and implementation would provide both stable electrical supply and petroleum fuels on a forward basis for hundreds of years but in order to actually do so you have to convince industry that their investment will not be destroyed by a Presidential pen two or four years hence, exactly as Keystone was by Biden and nuclear reprocessing was by Carter.

Are we ready to resolve that problem?  There's no evidence we are at this point but again, if you want economic progress you must solve this because the laws of economics are not suggestions and behind every unit of economic output is a unit of energy.

Oh do c'mon....

"This is a very real threat," he said. "EMP is generated when a small nuclear weapon, 40 to 60 kilotons or about three times the size of a Hiroshima bomb, is detonated 200 miles out in space above the United States. It sets up an electrostatic discharge which cascades to the Earth's surface, feeds into the millions of miles of wires which become antennas, feeds this into the power grid, overloads the grid and blows it out."

This is not quite accurate but let's run with the claim for a minute.

This was first recognized as an issue during a high-altitude nuclear test.  But one must be very careful to generalize for a number of reasons, not the least of which is that said test was a thermonuclear device with a yield of 1.4 megatons.

In other words it wasn't a small or tactical weapon -- it was a hydrogen bomb and a pretty good-sized one.  Modern tactical nuclear weapons are typically somewhere between 1/10th and 1/100th that size, simply because it was recognized that the inverse square law is real and setting off really big ones doesn't scale the damage on a linear basis.

As noted in the paper cited there are two "waves" in an EMP; one is directly caused by the detonation and the second is essentially the coupling of same into the magnetic field.  The latter is basically the same thing as what occurs during a serious geomagnetic storm caused by CMEs from the sun -- sort of, except that a nuclear detonation is a point-source of energy and a CME is not.

We do not have modern-era empirical evidence of exactly how serious of a threat this is, simply because atmospheric (and those in both space and underwater) tests were banned by international treaty (and have been observed quite well) in the years since 1963 -- well before the modern electronic era.

But do not kid yourself that EMI damage potential has been ignored in the years since.  It most-certainly has not.  Your car, for example runs around with extremely high voltages in the ignition system and without pretty-decent shielding and bypass the electronics it would be immediately fried.  Indeed original CMOS ICs, which were not protected internally very well at all, were known to be blown up when handled if you looked at them wrong, and were shipped in carbon-bearing conductive foam for this reason.

The second element that arises is that there are "natural chokes" that are present in the electrical grid and elsewhere.  A "choke" is simply something that inhibits the passage of higher frequencies while allowing lower frequencies to pass (or even coupling them.)  A transformer is one such example.  The risk of a high-frequency transient passing through one is thus that it is high enough voltage to violate the insulation -- that is, to pass via arcing rather than through it.  That risk is real but each time that occurs a decent amount of the energy is shunted since some of it will go to ground rather the other side.

Again we can't empirically test any of this -- but what we do know is that when that test was performed while Hawaii experienced disruption their electrical system was not destroyed and further, it didn't nail anything over here on the mainland or elsewhere.  The effect, of course, was unintentional as well because we didn't know it would happen.

One thing we should keep in mind however, is that de-centralization is good and we've destroyed a lot of that.  Smaller municipal-size generators, many of them coal-fired, have been turned off and most of those have had the wrecking ball taken to them.  That adds risk because prior to that you could, for example, pick up a metro area after an event very rapidly even if you can't reconnect to the grid at-large until other areas were able to be restarted.  Some plants after a trip, particularly large fission nuclear reactors, often cannot restart immediately (with fission plants this happens due to Xenon poisoning and depending on the age of their fuel load they can require a day or two before the plant can re-establish criticality) and those plants also cannot "black start" at all by design -- that is, they cannot come up on their own without grid power because their emergency generators are only sufficient for emergency shutdown cooling water flows and not normal startup.

Of similar concern is the fact that when it comes to larger transformers we simply do not have material spare capacity that is not connected and in-use.  Unless you're willing to, on a coordinated basis, disconnect and ground those units on detection of a possible launch (and you better not miss one) then unlike a solar event which we do "see" well in advance of it getting here having a material percentage of those units being destroyed by internal arcing is certainly possible. That many of these aren't made in the US and there is no US supply is even more-crazy, but that's the world we live in today -- and we should definitely correct that problem.

Certainly a coordinated, multi-warhead event like this would be considered an all-out declaration of nuclear war with all that entails.  But a single event, while of concern, is not going to end life in America -- or destroy all our infrastructure.  It just won't, and while an all-on assault of this sort would be extremely bad so is blowing up a hundred large cities and both are, for all intents and purposes, the same sort of act-of-war when you get down to it.

Yes, we should take this seriously, but let's be realistic about the circumstances under which that actually occurs and what it means rather than considering it an "isolated" sort of event.

It wouldn't be and we wouldn't treat it as if it is.

Today's podcast is about many things, but most-specifically the Canada/US differences in both political system and the back-and-forth on the nations buying each other in whole or part.

Join Sarah and I over a nice adult beverage for some good conversation!  I think you'll find it most-enjoyable.