- “Unthinkable”: Cuomo executive order protects New York medical professionals from liability for much care extended during the emergency [Robert Gavin, Albany Times-Union] Will liability capsize the nursing home business? [AP/WBFF, Maggie Flynn/Skilled Nursing News; Lydia Wheeler and Valerie Bauman, Bloomberg]
- To raise hospital capacity, flatten certificate-of-need laws [Matthew D. Mitchell, Thomas Stratmann, and James Bailey, Mercatus, earlier]
- Cato Daily Podcasts with Will Rinehart on regime uncertainty for developers of COVID-19 tests and Jeffrey Singer on telemedicine, hosted by Caleb Brown;
- As virus cut swath through nursing home population, states like Virginia and Maryland cited health privacy laws as reason not to release data breakdowns [Kate Masters, Virginia Mercury] “And, despite not knowing what threat the [info would be used] for, the group had pre-emptive ethical clearance to immediately gather samples from patients – something which would take weeks or months in other countries.” Seems to have served Australians well [Tyler Cowen]
- From early in crisis: ways in which feds relaxed hospital rules [Valerie Bauman and Lydia Wheeler, Bloomberg Law]
- Some pre-crisis links: “Must an employer pay for medical marijuana? Apparently yes – at least in New Jersey.” [Alexander Castelli, LexBlog] “The ACA Expanded Insurance Coverage of Contraceptives. Prices Soared.” [Michael Cannon, Cato at Liberty] Vaccines, birth control, Accutane: as plaintiff’s lawyers kept winning, the public kept losing [Beck]
State authorities in New York, New Jersey, and California direct nursing homes to take in COVID-19 patients, even if they’ve otherwise managed to keep the virus out. Connecticut and Massachusetts instead designate some facilities as being for patients with the novel virus. At least one group of states, it would seem, is making a mistake [Kim Barker and Amy Julia Harris, New York Times; Bernadette Hogan and Bruce Golding, New York Post]
- Gov. Andrew Cuomo has shown himself quite the deregulator during New York’s coronavirus emergency. If only so many of his steps were not accompanied by that word “temporary” [Alex Tabarrok]
- Where government has failed, Silicon Valley biotech to the rescue [Andrew Leonard, Wired]
- Lawn care, small motorboats, the paint aisle: What sets Michigan apart is how far its governor has gone in imposing arbitrary restrictions that have little if any plausible link to curbing virus transmission. [Shikha Dalmia]
- Euro consumer data privacy follies: “Supermarkets in the EU wanted to deliver groceries to 1.5 million people self-isolating from coronavirus. But they couldn’t get the list of names & addresses necessary to do so because it would violate GDPR.” [Telegraph (U.K.) via Alec Stapp]
- Constitution doesn’t permit racial preferences in the distribution of pandemic relief funding, especially as it isn’t a remediation of earlier discrimination [Hans Bader on Arlington, Va. small business grant program]
- Would courts strike down quarantine measures in recognition of a right of family unity? [Josh Blackman]
- Three episodes of the Cato Daily Podcast, all with Caleb Brown: “A Survey of State-Level Criminal Justice Reform” with Robert Alt of the Buckeye Institute; “Reforming Parole and Probation” with Marc Levin of the Texas Public Policy Foundation; “Getting Honest on Bail Reform” with Josh Crawford of the Pegasus Institute;
- In news of unconstitutional legislation, the lawmakers of Monroe County, N.Y. (Rochester) want to make it illegal to “annoy” a police officer [James Brown, WXXI, Eugene Volokh]
- Jury unanimity is required in federal criminal trials, but does the Constitution also require it at the state court level? [Federalist Society SCOTUS Brief video with Jay Schweikert on Ramos v. Louisiana, argued at the Court Oct. 7]
- In August New York Gov. Andrew Cuomo signed a law stripping state double jeopardy protections from Trump associates who may receive clemency in the future. It’s an improperly targeted enactment at best [Jacob Sullum, earlier]
- Denison, Texas drunk with multiple priors, lying on gurney in hospital, kicks police officer and gets 99 year sentence for that [Stan Smith, KXII]
- Lengthy profile of Philadelphia DA Larry Krasner, including his feuds with the local U.S. Attorney and Pennsylvania’s Attornry General. One disturbing data point: “Homicides in the city are up six percent and shootings are up 10 percent this year.” [Steve Volk, Philadelphia Magazine]
Last month a court struck down Los Angeles’s ordinance intended to discourage city contractors from dealing with the National Rifle Association (NRA), ruling it a First Amendment violation intended to chill speech and association. An amusing feature: the bill’s sponsor just couldn’t help grandstanding on Twitter and elsewhere about taking down the NRA, which provided the court with valuable evidence of the city’s intent. Moreover, the gun rights group has been making headway against similar efforts in San Francisco and New York state (led there by Gov. Andrew Cuomo) to target its pocketbook. I explain in a new piece at National Review.
“A better reason to reject the governor’s proposal is that the constitutional guarantee of a free press extends to all people. Professional journalists don’t deserve special treatment, and no self-respecting one wants it.” [David Andreatta, Rochester Democrat & Chronicle]
A federal judge has ruled the National Rifle Association can proceed with its First Amendment suit against New York Gov. Andrew Cuomo over his pressure on regulated banks, insurers to cut ties with gun rights advocacy groups like the NRA. “U.S. District Judge Thomas McAvoy questioned Cuomo’s claim that his messages about the wisdom and propriety of providing financial services to the NRA amount to nothing but legitimate regulatory oversight and protected government speech.” [Jacob Sullum and background, Eugene Volokh] “It is well-established under binding federal appeals court decisions that government officials like Cuomo are not allowed to pressure organizations or businesses to cut off services to someone because of their political stances or expression — even when the government official uses informal pressure as opposed to explicit threats. (See, e.g., Rattner v. Netburn, 930 F.2d 204 (2d Cir. 1991)).” [Hans Bader] Earlier here, here and here (ACLU files amicus brief defending NRA’s rights), etc.
I’ve been critical of the ACLU lately but its amicus-brief defense of the NRA’s First Amendment rights against New York Gov. Andrew Cuomo’s strong-arm use of insurance and bank regulation is vital, timely, and right:
Public officials are, of course, free to criticize groups with which they disagree. But they cannot use their regulatory authority to penalize advocacy groups by threatening companies that do business with those groups. And here the state has admitted, in its own words, that it focused on the NRA and other groups not because of any illegal conduct, but because they engage in “gun promotion” — in other words, because they advocate a lawful activity.
Substitute Planned Parenthood or the Communist Party for the NRA, and the point is clear. If Cuomo can do this to the NRA, then conservative governors could have their financial regulators threaten banks and financial institutions that do business with any other group whose political views the governor opposes. The First Amendment bars state officials from using their regulatory power to penalize groups merely because they promote disapproved ideas.
As we mentioned in a brief earlier item, New York Gov. Andrew Cuomo has “directed the Department of Financial Services to urge insurance companies, New York State-chartered banks, and other financial services companies licensed in New York to review any relationships they may have with the National Rifle Association and other similar organizations. Upon this review, the companies are encouraged to consider whether such ties harm their corporate reputations and jeopardize public safety.” [Cuomo press release] Maria T. Vullo, Superintendent of Financial Services for the state of New York, issued a guidance memorandum. In language not altogether typical of safety-and-soundness financial regulation, Vullo wrote:
While the social backlash against the National Rifle Association (the “NRA”) and similar organizations that promote guns that lead to senseless violence has in the past been strong, the nature and the intensity of the voices now speaking out, including the voices of the passionate, courageous, and articulate young people who have experienced this recent horror first hand, is a strong reminder that such voices can no longer be ignored and that society, as a whole, has a responsibility to act and is no longer willing to stand by and wait and witness more tragedies caused by gun violence, but instead is demanding change now.
Brian Knight writes at FinRegRag:
This request could easily be construed is a thinly veiled threat. While the NYDFS statement does not explicitly say that NY FIs (financial institutions) that may face regulatory sanction for failing to cut ties with the NRA, it doesn’t rule out the possibility either. If the NYDFS had no intention of threatening regulatory sanctions, they could clearly have added language taking the threat of enforcement off of the table. They didn’t, which indicates they want NY FIs to think there is a potential the government will come after them if they don’t end their relationships with groups like the NRA.
These instructions to NY FIs could also be seen as an attempt to suppress political speech that some New York policy makers disagree with. Whatever one thinks of the NRA, it is an organization engaged in legal political speech and advocacy. Cutting off the NRA’s access to financial services could change the political debate by reducing opposition to political efforts to tighten gun laws. The NYDFS release says, “This is not just a matter of reputation, it is a matter of public safety, and working together, we can put an end to gun violence in New York once and for all.” Given that the NRA does not make a product that could pose a direct risk to public safety, this release is clearly referencing the NRA’s political advocacy.
Knight compares the initiative to the Operation Choke Point episode, in which federal regulators steered banks away from dealing with various controversial but lawful lines of business, including some that were politically fraught. But in that episode, at least, the target enterprises were primarily engaged in the sale of goods and services and thus might in principle have faced financial risks related by fraud or unfulfillable obligations to customers.
The NYDFS order appears to be inherently about political speech. After all, there is no allegation that the NRA is committing fraud against its members. Rather, the argument is that the NRA’s positions are so dangerous that they are harmful to the community and pose a risk to the reputation of any FI that works with them. This could fairly be seen as an attempt to restrict the NRA’s ability to operate in the political arena and marketplace of ideals.
The guidance memorandum might thus accomplish by indirection what it would be plainly improper for the state to attempt directly:
There is no law that says a FI (financial institution) cannot do business with a gun rights group and such a law would almost assuredly be unconstitutional. However if the regulator declares that such an affiliation poses a reputational risk to the FI (that the regulator, not the market, determined existed), it has leverage to force the FI to comply.
The NRA has filed a suit against the governor and New York officials saying the program amounts to “coercion” aimed at depriving the association and its constituents of First Amendment rights. More: Scott Greenfield.
Meanwhile, in other news of regulatory retaliation — see also our tag on that — U.S. President Donald Trump reportedly urged the U.S. Postal Service to double its rates for handling packages shipped by Amazon.com, linked in his mind through founder Jeff Bezos with his journalistic nemesis the Washington Post. Postmaster General Megan Brennan is said to have “resisted Trump’s suggestion in private conversations in 2017 and 2018, telling him that package delivery rates are set by contract and reviewed by an independent commission” and that the Postal Service does not get a bad deal from its arrangements with Amazon and other e-commerce firms. [Reuters]