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.
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.
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+).
In two emergency declarations Thursday, governors eased the burdens of licensing for the duration of the coronavirus emergency: Massachusetts Gov. Charlie Baker announced that persons holding valid out-of-state medical licenses could get them recognized on one-day approval, while Maryland Gov. Larry Hogan extended the expiration dates of all licenses, permits, registrations, and the like until 30 days after the end of the emergency. I put it in context in a new Cato post.
- Slightly afield from law, but good watching: Yale’s Nicholas Christakis speaks at Cato on his new book Blueprint: The Evolutionary Origins of a Good Society [Cato Forum]
- Tech platform regulation: “The ‘EARN IT’ Act Is Another Terrible Proposal to ‘Reform’ Section 230” [Eric Goldman and more] “Why Does The NY Times Seem Literally Incapable Of Reporting Accurately On Section 230?” [Mike Masnick, TechDirt]
- Author of new book, a Fordham lawprof, “wants the U.S. Supreme Court (and other federal courts) to enforce international law standards against backward American states and localities.” It’s a no-go, says Jeremy Rabkin [Law and Liberty reviewing Martin Flaherty, Restoring the Global Judiciary]
- Police transparency, Annie E. Casey Foundation, county liquor stores and bicycle licenses in Montgomery County, and more in my new Maryland policy roundup [Free State Notes]
- Yikes: former BigLaw partner who specialized in product liability subrogation claims sentenced to five years on charges of defrauding almost $3.5 million from insurers, manufacturers and others [Judy Greenwald, Business Insurance]
- Somehow missed this in 2018: Texas lawyer disbarred for barratry is re-elected while in jail [Lowering the Bar]
Oh! Takoma! “Takoma Park, the liberal enclave just outside Washington known as the ‘Berkeley of the East,’ is debating whether to outlaw gas stoves, leaf blowers and water heaters. The proposal… would ban all gas appliances, close fossil fuel pipelines, and move gas stations outside city limits by 2045. The cost to the average homeowner could reach $25,000, officials wrote.” [Rebecca Tan, Washington Post]
- Did the Supreme Court err in Employment Division v. Smith when it ruled that the Free Exercise Clause provides no exemption from burdens on religious conscience resulting from neutral and generally applicable laws? [Federalist Society Rosenkranz Debate with Michael McConnell and Philip Hamburger] Will the Court revisit Employment Division, as four Justices (Alito, Thomas, Gorsuch, and Kavanaugh) recently suggested? [Eric Baxter on Ricks v. Idaho Contractors Board]
- Maryland: “Don’t suspend drivers’ licenses over fines/fees unrelated to road safety” [my new Free State Notes]
- “A motley group of powerful companies have their knives out for Section 230, which shields platforms from lawsuits over content posted by users.” [David McCabe, New York Times; Gigi Sohn on Twitter]
- Did U.S. Customs destroy an African musician’s uniquely crafted instrument, or was it damaged in transit? Stories differ [Isobel van Hagen and Sarah Kaufman, NBC News; earlier here, here, here, etc.]
- R.I.P. David N. Mayer, emeritus professor at Capital Law and constitutional scholar who did important work on the views of the Founders and on the Contracts Clause [Roger Pilon, Cato]
- Another Emoluments suit fizzles for lack of standing, as I predicted three years ago [Megan Mineiro, Courthouse News (suit on behalf of individual members of Congress); sage advice from Grover Norquist]
A new bill in the Maryland General Assembly would prohibit counties and cities from banning children’s lemonade stands when set up occasionally on private property. I submitted these perhaps somewhat tongue-in-cheek comments advising lawmakers to stop them young:
“Today’s breaker of low-level regulations is tomorrow’s breaker of more serious regulations. The ten year old who dabbles in lemonade selling today could become tomorrow’s bringer of a church potluck casserole prepared in a home kitchen rather than an inspected commercial facility. A few years later, accustomed to the ways of regulation-breaking, that same miscreant might use that same home kitchen to bake a dozen pies, plus one for good luck, to bring to a homeless shelter for Thanksgiving.
“The time to stop it is when it starts — on the June day when the first pitcher of lemonade is mixed and hawked to passersby for 50 cents, plus a tip if you get lucky. Stop them young, or they will get used to serving others and along the way learning to act and think for themselves.
“Does this all sound a little crazy and upside down? Well, it is. We should make it easier, not harder, for kids to be enterprising, well organized, and friendly, all lessons of the lemonade stand.”
- Lenawee County, Mich. authorities have posted condemnation notices on Old Order Amish farmhouses over their use of outhouses rather than modern septic systems as required by code. Dispute now heading for court [Tom Henry, Toledo Blade]
- Baltimore Mayor Young promotes white-van-abduction urban legends, police misconduct transparency, Montgomery County is watching drivers and more in my latest Maryland policy roundup [Free State Notes]
- Following outcry from activists, Facebook disables as misleading ads some trial lawyer ads soliciting plaintiffs to sue over purported side effects of HIV prevention drugs [Tony Romm, Washington Post/Toronto Star, Peter Lawrence Kane, The Guardian, WTHR]
- From Lowering the Bar, legal things that actually did happen in 2019;
- 20 years ago I warned that by trying to dictate employers’ choices, a Wisconsin law might work to impede convict re-entry into the job market rather than encourage it [Reason, from its archives]
- If county and city law enforcement officials have discretion not to charge low-level drug offenders, do they also have discretion not to charge low-level gun offenders? [Cam Edwards, National Review on Virginia battle over “Second Amendment sanctuary” resolutions]
I’m in the Baltimore Sun discussing a bad Maryland law passed in response to the furor over Russian trolling on social media. I wrote about it earlier when a federal district court struck the law down, and now a Fourth Circuit panel, in an opinion by Judge J. Harvie Wilkinson, has agreed that it is unconstitutional. Excerpt:
Exposing foreign governments’ meddling in U.S. politics is a worthy goal. Infringing on First Amendment freedoms is no way to go about it….
[After the law passed] Google immediately stopped hosting political ads in Maryland, a step particularly unhelpful to newcomer candidates, for whom advertising may be one of the few effective ways to boost name recognition. Other platforms, including some Maryland newspapers, also faced a tough position as the effective date of the law drew near. Rather than publish disclosures that might expose to competitors’ eyes confidential information about their ad rates and viewer reach, they might prefer just to immunize themselves by turning down political and issue ads in the future as a category.
- Full Fifth Circuit agrees to rehear challenge to constitutionality of Indian Child Welfare Act; a three-judge panel, reversing district court, had upheld the law [Timothy Sandefur, my post with Nathan Harvey from earlier this year]
- On basis of lack of complainant standing, but without reaching First Amendment issue, Kentucky high court rules in favor of Lexington t-shirt maker who had been ordered by the city’s Human Rights Commission to print shirts with messages he disagreed with and attend diversity training [ABA Journal, earlier on Hands-On Originals case]
- “Never-ending net neutrality litigation means lawyers always win” [Roslyn Layton, AEI]
- Online political ads and the First Amendment, Frosh and Bloomberg, red flag laws, Orioles as lobbying tool, and more in my latest Maryland roundup at Free State Notes;
- Are hate crimes up or down in number? The government has no idea [Jeff Jacoby, Boston Globe, I’m quoted; earlier]
- New York City Council adopts foie gras ban to take effect in 2022 [Baylen Linnekin] If you’ve assumed that production of this delicacy is unethical, this article might change your mind [J. Kenji López-Alt, Serious Eats]