- Presumptive ban on homeschooling? A bad idea for so many reasons, especially when the presumption should be of liberty [Erin O’Donnell, Harvard Magazine; Kerry McDonald, Cato] Harvard Law School is hosting a June conference on homeschooling and the law dominated by advocates of placing new legal restrictions on the practice [Corey DeAngelis] A recent HLS grad who was homeschooled weighs in [Alex J. Harris]
- Equity versus achievement: U.S. Department of Education urges schools working remotely to teach new content rather than just review the old [Andrew Ujifusa, Education Week, earlier on controversy; Hans Bader on Arlington, Va. schools]
- “A politically progressive caucus within the [teacher’s] union is calling on its leaders to push for ‘less academic work’ during the coming months, and to lobby for a moratorium on student grades and teacher evaluations.” [Dana Goldstein and Eliza Shapiro, New York Times] San Francisco school board to vote on plan that would give students in grades 6-12 a grade of A in all subjects [KGO; Alison Collins and commenters; related on mass social promotion, Andy Smarick, The Atlantic]
- Those copyright license issues that keep church congregations from incorporating music into their online services also complicate the lives of educators trying to carry out online instruction [Mike Masnick, TechDirt]
- Before, or at least separate from, the crisis: “Should Students Be Excused from School for Political Activism?” [Jim Geraghty, National Review] “Public Education as Public Indoctrination” [Ilya Somin] Group that wants regulatory stringency of federal school lunch program to be decided in courtroom rather than at ballot box ironically styles itself “Democracy Forward.” [Lola Fadulu, New York Times]
- Split Sixth Circuit panel rules that Due Process Clause of the Fourteenth Amendment protects a fundamental right to a “basic minimum education,” a holding that seems unlikely to survive Supreme Court review given such precedents as Rodriguez, Glucksberg, and DeShaney [Jonathan Adler, Josh Blackman]
Posts Tagged ‘COVID-19 virus’
Religious liberty and public health orders
“History buffs may recall that the first Free Exercise Clause case in Supreme Court history, in 1845, involved the prohibition of open-coffin funeral services in a New Orleans church during a yellow fever outbreak.” Any piece from Prof. Mike McConnell on religious liberty is likely to be worth reading and this is no exception (with Max Raskin) [New York Times, though I’m not fond of the clickbait-y headline]
Several courts have already heard challenges to governors’ and mayors’ closing and assembly orders; churches have won rulings in Louisville, Kentucky (strongly worded federal court opinion; case then settled; mayor says police will take down license plates of Easter churchgoers) and Kansas (analysis by Stuart Levine), while states have won rulings in New Hampshire (no evidence that ban on gatherings of 50 or more people “intended to target any religion or specific religious practice”) and New Mexico. More: Bonnie Kristian, Christianity Today; and here is a website on religion, law, and the COVID-19 emergency.
Occupational licensure roundup
- In one valuable response to the pandemic, Arizona lifts scope-of-practice restrictions to enable nurses to dispense services for which they are trained without doctor supervision [Jeffrey A. Singer, Cato] A good idea for Ohio to consider [Rea S. Hederman Jr., Buckeye Institute]
- “A Primer on Emergency Occupational Licensing Reforms for Combating COVID-19” [Edward Timmons, Ethan Bayne, and Conor Norris, Mercatus Center] “Occupational Licensing Reform and the Right to Earn a Living: A Blueprint for Action” [Adam Thierer and Trace Mitchell, Mercatus]
- “Make Pandemic-Related Occupational License Reform Permanent” [J.D. Tuccille]
- “You Can Take It with You: A Case for Occupational Licensing Reciprocity” [Stephen Slivinski, Arizona State Center for the Study of Economic Liberty] “Physicians Should Be Allowed To Practice Across State Lines—and Not Just During a Pandemic” [Vittorio Nastasi]
- From before the crisis: Cato Daily Podcast with Erica Jedynak and Caleb Brown on reform prospects; Federalist Society explainer audio on Arizona reform with Jon Riches; “Good moral character” provisions: “States Are Easing Arbitrary Licensing Barriers to Work for People With Criminal Records” [J.D. Tuccille]
- “Undercover Cops Hired 118 Handymen, Then Arrested Them All for Not Having Licenses” [Christian Britschgi; Hillsborough County, Fla.]
FDA authorizes an at-home COVID-19 test — but some states still ban it
A new home test for COVID-19 launches in 46 states but not in New York, New Jersey, Maryland, or Rhode Island, because lawmakers in those states have banned this sort of direct home diagnostic test. As a Maryland resident, may I scream? My new Cato post.
Missouri to sue China and its ruling Communist Party over pandemic
“Missouri Attorney General Eric Schmitt, a Republican, blames China for letting the coronavirus spread. So he’s suing China, three government ministries, two local governments, two laboratories and the Chinese Communist Party in U.S. District Court.” A suit of this sort by a state against a foreign sovereign would ordinarily be stopped in its tracks by the Foreign Sovereign Immunities Act of 1976, but never fear: “Last week, Missouri Sen. Josh Hawley introduced legislation to strip China of its sovereign immunity.” [Frank Morris, NPR]
As my colleague Ted Galen Carpenter observed on Monday, there are many and substantial reasons to blame Beijing for bad conduct during the pandemic, and American public opinion has taken note of that. Still, sovereign immunity aside, under the constitutional design laid down by the Framers states aren’t supposed to pursue their own foreign policies. As the Supreme Court put it in Hines v. Davidowitz (1941), “Our system of government … requires that federal power in the field affecting foreign relations be left entirely free from local interference.” In Crosby v. National Foreign Trade Council (2000) the Court unanimously struck down a Massachusetts law barring state entities from buying goods or services from companies doing business with Burma (Myanmar) on the grounds that it interfered with the power of Congress and the Executive Branch to make the most of the sanctions power by exerting unified control over it.
It’s not clear that the different circumstances here would trip the Crosby wire, but Missouri is treading a path here not unlike that of the San Francisco Board of Supervisors, long deservedly criticized for sticking its nose into foreign policy causes whether good or bad. It is noteworthy that Justice Ruth Bader Ginsburg, who takes a somewhat broader view of states’ permissible involvement in this field than do her majority colleagues, has written nonetheless that the case for pre-emption is strongest “when a state action ‘reflects a state policy critical of foreign governments and involve[s] sitting in judgment on them.'” Explicitly hostile measures toward a foreign power are especially likely to undermine U.S. foreign policy by raising the chance of a breach in relations or retaliation. David R. Schmahmann and James S. Finch have more in this 1998 Cato briefing paper.
COVID-19 pandemic roundup
- 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]
Free speech roundup
- “New Puerto Rico law threatens jail time for spreading ‘false information’ about COVID-19” [Committee to Protect Journalists, earlier] Freedom for publishers and platforms to associate with whomever they want permits them to exclude quackery and health misinformation, and that’s a feature not a bug [Matthew Feeney]
- It takes the FCC all of one day to reject petition from absurdly named pressure group Free Press demanding broadcast limits on statements by Trump and his allies about the novel coronavirus [Robby Soave, Eugene Volokh] Obscure West Coast group sues Fox over its coronavirus coverage [Volokh] Meanwhile, Trump camp is at it again: “Trump Campaign Sues TV Station for Running ‘Defamatory’ Coronavirus Attack Ad” [C.J. Ciaramella, earlier]
- “A Teenager Posted About Her COVID-19 Infection on Instagram. A Deputy Threatened To Arrest Her If She Didn’t Delete It.” [Scott Shackford; Oxford, Wis.]
- Technical countermeasures, as opposed to calling in the cops, most practical way to fend off that new form of anti-social activity, “Zoom-bombing” [Eugene Volokh]
- “How the Telephone Consumer Protection Act Unconstitutionally Privileges Government Speech” [Trevor Burrus on Cato amicus brief in Supreme Court case of Barr v. American Association of Political Consultants]
- From before the crisis, hate speech mini-roundup: Connecticut state agency sees it as part of its mission to defend an unconstitutional “racial ridicule” law enacted in 1917 [Volokh] “Hundreds of Scots who tell ‘offensive jokes’ on social media are being secretly logged on police database” [Ruth Warrander, Scottish Sun] Bad proposal in U.K. to give communications regulator authority to address material that “is not illegal but has the potential to cause harm.” [Matt Kilcoyne] Social media regulation: “No one is saying freedom of speech must be limited,“ says New York lawmaker filing bill to limit the freedom of speech [Sen. David Carlucci]
On the radio in New Orleans
I joined host Newel Normand to talk federalism, the Constitution and the pandemic on New Orleans’s WWL on Thursday. You can listen here.
Liability roundup
- “Businesses Warn Fear of Lawsuits Could Stall Rebooting of Economy” [Andrew G. Simpson, Insurance Journal; New York Times (“liability companies could face if employees were to get sick after returning to work”); Eugene Volokh (Jim Salzman proposal on assumption of risk legislation, and the constitutional angle)]
- Emergency declaration triggered liability protections for people and enterprises responding to outbreak [Andrew Bayman, Geoffrey Drake, and Mark Sentenac, King & Spalding; Jim Beck, Drug & Device Law] 2005 pandemic-preparedness bill’s liability protections were inevitably assailed by Sen. Edward Kennedy and Public Citizen [Tyler Cowen]
- “Protect the Doctors and Nurses Who Are Protecting Us; They need immunity from lawsuits and prosecution for triage decisions.” [I. Glenn Cohen, Andrew Crespo, and Douglas White, New York Times; Erik Larson, Bloomberg]
- “Class Actions During COVID-19” [Frank T. Spano and Elizabeth M. Marden, Polsinelli]
- From before the crisis: “New York Holds that Registration to do Business does not Constitute Consent to General Personal Jurisdiction” [Stephen McConnell, earlier here and here]
- More from before the crisis: Federalist Society debate between Brian Fitzpatrick and Ted Frank on Fitzpatrick’s new book The Conservative Case for Class Actions; trucking business reels under huge verdicts [Matt Cole, Commercial Carrier Journal, parts one and two, earlier here, etc.] Ex-client sues Houston’s “Car Wreck Clyde” charging case running and other no-nos [Brenda Sapino Jeffreys, Texas Lawyer] In Florida, “‘Inconspicuous’ political cash helped trial lawyers notch wins against insurers” [Matt Dixon and Arek Sarkissian, Politico]
COVID-19 pandemic roundup
- “However peaceable we might be in our intentions, our assembling is a physical threat. Our judgments about liberty, I think, need to reflect that.” [Eugene Volokh on freedom of assembly during an epidemic] Suits against quarantine seldom prevail [Chris Dolmetsch and Malathi Nayak, Bloomberg/Claims Journal] Quarantine and public health measures set important precedents in overcoming judges’ suspicion of delegations of power [Keith Whittington]
- If the federal government decided it wanted to block movement between different states to combat virus transmission, where would it get the legal authority, and what means could it lawfully use? [Gene Healy, Cato] The constitutional background on freedom to travel, as well as search and seizure, during an epidemic [Volokh]
- “The common law also appears not to be a good alternative. One can imagine the litigation nightmare if everyone who got the virus attempted to identify and sue some defendant for damages.” [Tim Brennan, Truth on the Market]
- Cracking down on putatively deceptive accounting practices, SEC penalized “‘bill-and-hold’ transaction orders in which a product is not immediately delivered to its customer.” And that was terrible news for anyone in the business of trying to build public health stockpiles — of vaccines, equipment, PPE — that might be needed in a contagious-disease emergency [John Berlau, CEI] Better than compulsory purchase orders: “Using Purchase Guarantees and Targeted Deregulation to Boost Production of Essential Medical Equipment” [Caleb Watney and Alec Stapp, Mercatus Center]
- Flashpoints include drive-in services, curfews, ID and quarantine of churchgoers: “Religious Freedom Clashes With Public Health Enforcers” [Elizabeth Nolan Brown]
- “FDA Denaturing Rules Are Toxic for Small Distillers” [Jacob Grier]