Cato has now reprinted, with no paywall, my February Wall Street Journal piece on an audaciously unconstitutional bill moving through the Minnesota senate committee that would introduce explicit racial classifications into the state’s child welfare system, the idea being to institute markedly stronger protections for black families (but not others) against child removal. Earlier here.
Archive for April, 2020
Insurance that was written to cover pandemics, and insurance that wasn’t
What’s the worst single insurance-law idea you could bring to bear on the COVID-19 outbreak? How about passing a law to require insurers to cover pandemic-related business interruption even if their policies explicitly named and excluded coverage of that risk? My new post at Cato criticizes bills afoot in the Ohio, New Jersey, Massachusetts, and New York legislatures: “The fact that this category of risk has been widely grasped for many years is among the reasons why state legislatures should absolutely not be permitted to enact legislation retroactively rewriting insurance contracts to mandate pandemic-related business interruption coverage neither promised nor paid for at the time.”
Constitutional law roundup
- I join Caleb Brown at the Cato Daily Podcast to talk about federalism and the lead role of the states in applying pandemic-related police power. See also Chris Edwards, Cato;
- First John Tamny disagreed with my observation in the WSJ that the Constitution allows states, not the federal government, the power to make lockdown decisions during epidemic outbreaks. Now Roger Pilon weighs in and settles it [Real Clear Markets]
- “Contagion and the Right to Travel” [Anthony Michael Kreis, Harvard Law Review Blog] Lawsuits challenging lockdown orders, sometimes on constitutional grounds, are tried, but the courts are highly deferential during emergencies of this sort [Neil MacFarquhar, New York Times] “Divided Pennsylvania Supreme Court: Governor can shut down firearms dealers during Coronavirus emergency” [Josh Blackman]
- “Now the ex-fiancé and his paramour are using Illinois’s ‘revenge porn’ law to punish her for speaking, and the state is happily obliging.” A First Amendment botch that SCOTUS should correct [Ilya Shapiro and Michael Collins on Cato Institute brief]
- “Reviving the Contract Clause: An Acid Test for Originalism” [John McGinnis]
- “Indiana Supreme Court Applies Eighth Amendment to Curb ‘Oppressive’ Asset Forfeitures” [Ilya Somin in November; earlier on Timbs v. Indiana here and here]
“San Francisco reverses ban on plastic bags, now bars reusable totes”
“The United Food and Commercial Workers (UFCW) union is pleading with consumers to ‘just say no to reusable bags’ for the duration of the pandemic, in order to protect baggers and cashiers who’ve inadvertently been placed on the front line.” [Patty Wetli, WTTW] Many cities and states are listening: “San Francisco has reversed its 13-year ban on plastic bags and will now prohibit the reusable bags city leaders once championed because of the coronavirus.” Massachusetts, New Hampshire and other states have taken similar steps. [Jeff Mordock, Washington Times] “We have always been at war with Reusable Totes” [Iowahawk]
Some legal ethics don’ts
“Don’t purchase a domain entitled ‘firetheliarjudge dot com’ if you plan on continuing to practice law,” and most especially don’t … well, you’ll have to read the allegations yourself [Keith Lee, Associates Mind thread, on Illinois lawyer discipline case]
COVID-19 pandemic roundup
- I’ve started a notebook at Cato tracking abuse of government’s emergency powers. First installment tags NYC mayor de Blasio (claims he will shut down synagogues “permanently” if they defy his orders), L.A. mayor Garcetti (going to use the city utility to shut off violators), and a Gotham group that sees the crisis as the perfect excuse for an edict banning tobacco;
- Drones spy on Brits taking country walks: “Here’s the problem, beyond the creepy secret surveillance: These people in the video are not in violation of this new law. The Derbyshire Police are in the wrong.” [Scott Shackford]
- To get more ventilators, just order private companies to make them, say fans of the Defense Production Act. Not as simple as that [Megan McArdle]
- “Needed fast: a plan to open up the economy again in a virus-safe way…. figure out what combination of personal distancing, self-isolation, testing, cleaning, etc. will allow each kind of business to reopen, at least partially.” [John Cochrane and more; Chris Edwards, Cato]
- Many states have laws against wearing face masks on the street, which one hopes will go unenforced for masks meant to intercept virus transmission [Jacob Sullum]
- In retrospect, it might have been wise for the World Health Organization to express its opposition to tobacco use in some way other than by calling it a “pandemic” [Pierre Lemieux]
Crow for them, Pai for us: American Internet policies outpace Europe’s in the crisis
As demand for videoconferencing and other online services soars in the pandemic emergency, European policymakers “are now eating crow and entreating video platforms to downgrade the quality of their streams, an about face from the regulatory dogma that ‘all data is equal'” You mean net neutrality wasn’t all it was cracked up to be? On dubious European concepts of data privacy, meanwhile: “The GDPR’s forced data minimization has dulled the effectiveness and granularity of data from mobile apps, devices, and networks which can help manage quarantine efforts and ideally lessen restrictions in uninfected zones.” [Roslyn Layton, AEI; Stewart Baker on the phone location app used in Singapore’s contact tracing efforts] Related: Alec Stapp thread (greater U.S. investment in broadband). More: Thomas Firey, Cato.
Podcast guest: liberty and the Constitution in a time of pandemic
I joined hosts Michael Sanderson and Kevin Kinnally on the Maryland Association of Counties’ popular Conduit Street Podcast, which has a large circulation among civically-minded Marylanders and national reach as well. Our talk ranged widely over legal and governmental aspects of the COVID-19 pandemic emergency, including government’s emergency powers, and how they sometimes don’t go away when the emergency ends; the role of the courts, both during the emergency and after it ends, in enforcing and restoring constitutional norms; contrasts between the state and federal handling of the crisis; and the opportunity this provides (and has already provided) to re-examine the scope of regulation, which has been cut back in many areas so as to allow vigorous private sector response in areas like medical care, delivery logistics, and remote provision of services.
Their description:
On a special bonus episode of the Conduit Street Podcast, Walter Olson joins Kevin Kinnally and Michael Sanderson to examine the role of state and local emergency powers in the fight against the COVID-19 pandemic.
Walter Olson is a senior fellow at the Cato Institute’s Center for Constitutional Studies. a libertarian think tank in Washington, D.C. A resident of Frederick County, Olson recently served on the Frederick County Charter Review Commission. Olson has also served as the co-chair of [the Maryland Redistricting Reform Commission, created in] 2015.
MACo has made the podcast available through both iTunes and Google Play Music by searching Conduit Street Podcast. You can also listen on our Conduit Street blog with a recap and link to the podcast.
You can listen to previous episodes of the Conduit Street Podcast on our website.
You can listen and download here (40:04). [cross-posted from Free State Notes] Related: Nashville radio host Brian Wilson did an extended riff on my Wall Street Journal op-ed on federalism and the virus emergency; you can listen here. And I appeared on screen as a source for a Sinclair Broadcasting TV report (see 1:45+).
Pharmaceutical and medical device roundup
- “Feds Say It’ll Take Up To 90 Days to Approve New Mask-Making Facilities” [Christian Britschgi, Reason] “America Could Import Countless More Face Masks if Federal Regulators Would Get Out of the Way” [Eric Boehm] Reversing course, FDA agrees to permit wider use of a system developed by Battelle for sterilizing specialized masks worn by front-line health workers [Rachel Roubein, Politico] In the face of mounting criticism, federal Centers for Disease Control may reconsider guidance discouraging general public from wearing face masks [Joel Achenbach, Washington Post]
- What would we do without the FDA? “FDA Tells At-Home Diagnostics Companies To Stop Coronavirus Test Roll-Outs; The companies are complying. Customers won’t get their results and are being told to destroy their test kits.” [Ronald Bailey, Reason] Small favors: FDA “is easing up on some regulations so that ventilators can be manufactured and implemented more quickly” to respond to crisis [Scott Shackford]
- And the same continued: “The idea to expand testing of drugs and other medical therapies was strongly opposed by the FDA’s senior scientists this week, the official said, and represented the most notable conflict between the FDA and the White House in recent memory.” [Tyler Cowen] “FDA Shouldn’t Keep Safe Drugs off the Market” [David Henderson]
- Off-label or no, “the FDA granted an emergency authorization request to make chloroquine and hydroxychloroquine available from the Strategic National Stockpile (SNS), the federally operated supply of medical equipment and pharmaceuticals for use in public health emergencies.” [Naomi Lopez and Christina Sandefur, In Defense of Liberty (Goldwater Institute); Ronald Bailey; Jim Beck; earlier on off-label prescribing here, etc.] Switch of beverage alcohol firms to making hand sanitizer was advanced by waivers from FDA and Alcohol and Tobacco Tax and Trade Bureau [Jeffrey Miron and Erin Partin]
- Needless face-to-face consults avoided: “Health Canada Sets A Good Example By Relaxing Opioid Prescribing Rules During COVID-19 Pandemic” [Jeffrey Singer, Cato] Some moves in the right direction in the U.S. too [Singer]
- Even the New Jersey courts aren’t buying the ambitious theory of “fourth-party payor liability,” in which a plaintiff who never “claimed to have used the product, paid for the product, acquired the product, or had any interaction with the product (or its alleged manufacturers) in any way” nonetheless sues them for supposedly driving up health insurance costs [James Beck, Drug & Device Law]
- Heartburn drug: “Trial lawyers start search for next big mass tort, increase Zantac ads by more than 1,000%” [John O’Brien, Chamber-backed Legal Newsline]