Online Friday at 1-2 pm Eastern: a Cato panel on the pandemic and the Constitution, with Ilya Shapiro, Trevor Burrus and me. Register here and send in questions for us if you like.
Ballotpedia ran a mini-symposium on the strain placed on election law and procedure by the COVID-19 virus. An excerpt from my short contribution:
Whatever your previous thinking on absentee and vote-by-mail procedures, minimizing the need for in-person voting is now the need of the hour. Every vote cast by mail is one that doesn’t add to waiting lines (already a headache even before social distancing) and the need for interaction at sign-in tables.
- “Inside America’s mask crunch: A slow government reaction and an industry wary of liability” [Jeanne Whalen, Rosalind S. Helderman and Tom Hamburger, Washington Post; Melissa Chen; earlier here, here, here, here, and here] “To Help Solve the Surgical Mask Shortage, Get the FDA out of the Way” [Paul Matzko, New York Daily News] “FDA Prevents Import of Masks” [Alex Tabarrok] Was the World Health Organization/Centers for Disease Control position that face masks don’t reduce transmission outside medical contexts meant as a noble lie? [Alex Nowrasteh; but see Scott Alexander (agencies declared against mask usage before shortages were an issue; my long Twitter thread advocating masks for all)]
- Its woeful mask advice aside, there’s little margin left for confidence in the World Health Organization [Jim Geraghty; Dan Blumenthal and Nick Eberstadt (“The very fact that truth-seekers are left counting urns is an indictment not only of the Beijing regime, but also of the WHO.”)]
- Defense Production Act, often imprecisely described in popular coverage, empowers federal government to get its orders placed first in line at suppliers [Christina Jewett and Lauren Weber, Kaiser Health News, earlier] Some federal sharp-elbowing: Bill Bowman, Franklin Reporter and Advocate (35,000 masks destined for Somerset County, N.J.); Richard Lough, Andreas Rinke, Reuters (supplies bound for Canada, Germany, Latin America); Alex Tabarrok and links; Nancy Asiamah, WWLP (3 million masks bound for Massachusetts); Sam Tabachnik, Denver Post (Colorado ventilators);
- Infectious disease expert Dr. Anthony Fauci is the target of a writerly hit job and I contribute to its correction [Tim Carney, Washington Examiner]
- Comparative federalism: Germany, with relatively decentralized, competitive, and local health care arrangements, offers lessons in tackling the crisis [Rob Schmitz, NPR (no central government approval needed for new diagnostic tests); Kai Weiss, CapX]
- This is not going to help: “Hospital Liability for Ventilator Shortages” [Michael Abramowicz]
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.
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.”
- 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]
“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]
“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]
- 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]
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.