Month: August 2020

Human beings are often terrible at foresight and generally learn hard lessons chiefly from failure. That has certainly been the case for the COVID-19 pandemic. Public health officials, politicians, and the public, by means of repeated policy failures, are still learning what works when it comes to mitigating the COVID-19 pandemic.

A partial list of initial failures in the U.S. includes underestimating the virulence of the pathogen by some public health officials; a massive bureaucratic screw-up by the Centers for Disease Control and Prevention (CDC) that delayed the rollout of diagnostic testing as the pandemic was taking off; the belief that airborne transmission was not a significant route of infection but instead the virus was chiefly passed along via direct contact with infected people and indirect contact with surfaces in the immediate environment; the early assertion that citizens didn’t need to wear face masks to protect themselves from infection; epidemiological models making worst-case projections of millions of COVID-19 deaths by assuming that people wouldn’t change their behaviors; the claim that the anti-malarial drug hydroxychloroquine was a “game changer” as a COVID-19 treatment; and a president who has doggedly insisted since February that the virus would miraculously fade or disappear soon.

So what has been learned over the past eight months? While conclusions are still preliminary, researchers now calculate that the COVID-19 coronavirus is about three times more contagious than seasonal flu; the availability of diagnostic testing in the U.S. has greatly improved but is still nowhere near where it needs to be; airborne transmission contributes significantly to the spread of the disease; when the background rate of infections is high the widespread adoption of face masks is an effective and very economically valuable method for stemming COVID-19 infections; when epidemiological models took into account actual changes in human behavior, their COVID-19 death projections declined steeply; and the Food and Drug Administration (FDA) has concluded that hydroxychloroquine is not a useful COVID-19 therapeutic. But what about President Donald Trump’s oft-repeated prediction that the virus will one day soon just disappear?

Epidemiological research suggests that COVID-19 will only fade away once the threshold for herd immunity is reached. Herd immunity is the resistance to the spread of a contagious disease that results if a sufficiently high proportion of a population is immune to the illness. Some people are still susceptible, but they are surrounded by immune individuals who serve as a barrier, preventing the microbes from reaching them. Herd immunity can be achieved via mass infection or mass vaccination. Epidemiologists estimate that the COVID-19 threshold for herd immunity is around 60 to 70 percent.

Some of Trump’s fans have recently been touting the idea that COVID-19 herd immunity is closer than initial epidemiological projections have suggested. I, too, have reported that very preliminary studies on unsuspected preexisting T-cell immunity to the coronavirus and speculative modeling results suggest that the effective herd immunity threshold may actually be close, at least, in some countries and some regions of the U.S. (In other words, the possibility of a lower herd immunity threshold is a lucky accident, not the result of presidential prescience.)

Now a new modeling study in the Proceedings of the National Academy of Sciences by a team of researchers associated with the University of Illinois at Urbana-Champaign suggests that the COVID-19 “heterogeneity-modified herd immunity” threshold has already been reached in some metropolitan areas of the U.S. Their model stands in contrast to many of the epidemiological models noted above that are based on the homogeneous assumption that basically every individual is equally liable to become infected and then to transmit their infection on to others.

The Illinois researchers define heterogeneity as the biological and social susceptibility of individual members of the population to COVID-19 viral infection. Biological heterogeneity takes into account differences in such factors as the strength of immune responses, genetics, age, and comorbidities. Social heterogeneity reflects variations in the number of close contacts that each individual has with different people. Basically the more social a person is, the more likely they are to get infected early in the epidemic and then become immune. The researchers combine biological and social heterogeneity to derive what they call an immunity factor.

The team tests their model on real-world empirical data from hospitalizations, intensive care unit (ICU) occupancy and daily deaths from New York City and Chicago to figure out changes over time in the effective reproduction number for the virus in those cities. The effective reproduction number is the number of people to whom an individual can transmit infection at any specific time, and it changes as more of the population becomes immunized through either infection or vaccination. In addition, the effective reproduction number is affected by people’s behaviors such as social distancing and widespread mask-wearing.

Taking the effects of biological and social heterogeneity on COVID-19 transmissibility, the researchers calculate that the herd immunity threshold is likely somewhere between 20 and 30 percent of the population. According to recent reports, more than 20 percent of New York City residents have probably been infected with the coronavirus.

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Yesterday, the Department of Justice released an interim final rule on “Processes and Procedures for Issuance and Use of Guidance Documents.” (Hat tip: Chris Walker.) This new rule constrains the ability of agency’s to rely upon guidance documents in enforcement actions and in court. Specifically, the rule bars the Justice Department from bringing enforcement actions based upon non-compliance with agency guidance and places limits upon the Department’s seeking deference to agency guidance documents promulgated after the rule is adopted. One effect of this rule is that agencies will have a more difficult time seeking Auer deference for regulatory interpretations embodied in guidance documents, which will also protect agencies from losing cases under the more demanding test for Auer deference detailed in Kisor v. Wilkie.

The new rule will be effective immediately upon its publication of the Federal Register, and codified at 28 C.F.R. § 50.27, though DOJ will accept comments on the rule for 30 days after publication, and may revise the rule in response to those comments. The rule is intended to implement Executive Order No. 13,891, Promoting the Rule of Law Through Improved Agency Guidance Documents.

Issuing this directly as an interim final rule, instead of as a proposed rule first and then a final rule after notice and comment, may seem a bit unusual, and it is.  But do not be surprised if we see more of this sort of thing. As Kristin Hickman noted, the Supreme Court blessed the greater use of interim final rulemakings in the Little Sisters decision from this past term, and I would not be at all surprised if agencies seek to take advantage of this going forward, as interim final rules are a much quicker way to implement changes in regulatory policy.

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What happens when innocent people stand up to government bullies who use civil forfeiture laws to steal their property? In many cases, the bullies, unaccustomed to such resistance, fold like a cheap suit. That is what happened today in Tucson, where the Pima County Attorney’s Office suddenly agreed to return Kevin McBride’s Jeep, which police seized in May after his girlfriend allegedly used it for a $25 marijuana sale.

Until today, prosecutors were demanding a $1,900 ransom for the safe return of McBride’s lovingly restored Jeep, saying “an outright return of the vehicle is inappropriate in this case.” But a week after the Goldwater Institute threatened to sue on McBride’s behalf, arguing that Arizona’s civil forfeiture law unconstitutionally requires property owners to prove their innocence, prosecutors changed their tune. “Upon inquiry pursuant to A.R.S. § 13-4309(3)(a) & (b), remission is declared,” writes Deputy County Attorney Kevin Krejci, the same official who told McBride in an August 11 letter that he would have to pay $1,900 under a “mitigation” agreement to get his Jeep back. “The 2000 JEEP WRANGLER…is released from seizure for forfeiture.” Goldwater Institute spokesman Mike Brownfield says “there was no explanation given.”

I will go out on a limb and suggest that the government’s swift reversal has something to do with the negative publicity and legal risk generated by a case like this one, in which McBride lost his only means of transportation and the basis of his livelihood as a handyman because he let his girlfriend take his Jeep to a convenience store so she could fetch him a cold soda while he was working. The cops claim she then sold marijuana to an undercover officer for $25. Although the charges against her were dropped, the Jeep remained in custody, accused of participating in criminal activity, because that is how civil forfeiture works.

Arizona law would have allowed McBride to challenge the forfeiture by arguing that he “did not know and could not reasonably have known” about the alleged illegal use of his property. But the burden would have been on him to prove that, and it would have required spending thousands of dollars on a lawyer, with no guarantee of winning, if the Goldwater Institute had not agreed to represent him for free. Law enforcement agencies count on those barriers when they extort money from innocent property owners like McBride, who naturally tend to give up when they discover that fighting the forfeiture will cost more than the bribe demanded by the government’s lawyers, and in many cases more than the property is worth.

Did I mention that Arizona law enforcement agencies get to keep 100 percent of the proceeds from the forfeitures they handle? If the government sold the Jeep for $15,000 (which is what McBride estimates it is worth), local cops and prosecutors would have split the money. Even without risking a legal challenge, they would have gotten $1,900 for the price of a letter if McBride had done the sensible thing by surrendering. Multiply those ill-gotten gains by all the seizures that happen in Arizona, and you’ve got nearly $30 million to pad law enforcement budgets each year, a consideration that tends to warp policing priorities. While the public safety payoff from seizures like this one is zero, the profit adds up.

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Over the last two days, NBA players have boycotted their league’s playoff games in protest of police brutality and racism, and players in several other professional sports leagues have followed suit. NBA players have now agreed to resume playing in the near future, and I expect the same thing is likely to happen in other leagues. But the whole episode still raises the more general issue of when and if sports boycotts are justified. This situation is not the first time players or others have advocated boycotting a sports event, and it is unlikely to be the last.

It may not be easy to come up with a rule that effectively deals with every case. But, at least as a general rule, I think there is good justification for boycotts when the organizers of the event in question are themselves perpetrating a serious injustice, and even more when holding the event directly causes injustices in and of itself. On  the other hand, the case is weaker when the purpose of the boycott is to pressure otherwise innocent third parties into supporting a political cause—even a just one.

I have previously advocated boycotting Olympics, World Cup tournaments, and other major sports events hosted by oppressive authoritarian regimes, and ideally denying them the right to host such events in the first place. The reason is that the hosts are directly culpable in perpetrating grave evil, and hosting such events almost inevitably provides a propaganda opportunity for them and bolsters their position on the international stage:

The standard argument against boycotts is the traditional idea that international sports events should be kept free of politics. The problem with this theory is that the Olympics and other similar events are virtually always used as propaganda tools by host governments, as happened with Nazi Germany in 1936, the USSR in 1980, and Vladimir Putin’s regime in 2014 [when Russia hosted the Winter Olympics]. For this reason, it is nearly impossible to make them genuinely politically neutral. The only realistic options are either to allow repressive regimes to use the Games to burnish their public image, keep them from hosting in the first place, or forestall their propaganda by means of a boycott that undercuts the Games’ public relations benefits for the hosts.

In addition, the sports events themselves are often run in ways that directly perpetrate grave injustices, such as forcible displacement of large numbers of people in order to make way for sports stadiums and related facilities:

The Olympics are a great sports event. But they also cause great harm. Host cities routinely lose enormous amounts of money on the games, and end up with decaying stadiums that have little or no value. Even worse, governments often forcibly displace large numbers of people from their homes and businesses in order to make room for Olympic venues. Over 1 million people lost their homes for the 2008 Beijing games alone. Brazil… similarly evicted large numbers of people for the… Rio Olympics, and even more to build stadiums for the 2014 World Cup. Most of those evicted are the poor and people lacking in political power.

Boycotting sports events where such practices occur can help deter their recurrence in the future. Denying propaganda opportunities to oppressive regimes and tarnishing their image can incentivize reforms. At the very least, boycotts in such cases can deny revenue and PR opportunities to the perpetrators of grave wrongs.

Things are more complicated in a case like the NBA players’ brief boycott of the last two days. Racial profiling and abusive police practices more generally are serious injustices (I have tried to highlight the need to curb racial profiling for years, now), and the players’ desire to combat them is laudable. We should also not forget that, in a league where most of the players are black men, it is highly likely that many of them and their families have experienced racial profiling and other abusive police behavior directly, as have a substantial majority of African-American males.

Still, it’s hard to argue that the targets of the boycott—NBA owners and fans—are the ones responsible for the injustice, in the ways that, say, the Russian and Chinese governments are responsible for the injustices their regimes perpetrate. It is even harder to argue that NBA games directly cause police brutality and racial profiling, in the way that forcible displacement of people to make way for stadiums is directly caused by current arrangements for hosting the Olympics and the World Cup.

The theory behind the boycott is that it might pressure NBA owners  into lobbying for reform. But it is by no means clear that the owners have the influence to make any significant difference on the issue. Few people even know the names of the owners, much less look to them for guidance on moral and political issues. The owners are, of course, wealthy people who might contribute to reform causes. But it’s far from clear they will contribute much more money as a result of a boycott, or that their contributions will make a significant difference, either.

In addition, if it is right to use boycotts to pressure owners (and perhaps others) into supporting one just cause, why not others? Sadly, US police abuses are far from the only significant injustice in the world today, or even the most serious ones. There are arguably even worse injustices in US immigration policy, for example. If players boycott games until owners address every serious injustice in the world, we will probably never have any professional sports competitions for a long time to come!

It might still be reasonable to use boycotts to pressure third parties into action if doing so has a high likelihood of success and is likely to do a lot more good than harm. But, at the very least, boycotts targeting third parties should only be undertaken if there is strong evidence that such success is likely and that a boycott is more likely to succeed than other types of measures. That is especially true when those boycotting are players who have a contractual obligation to participate in games, as opposed to fans and others who have no such duty.

Here, NBA players and other professional athletes do in fact have a range of alternative options that are likely to be at least equally effective. They can use their high public profile to speak out against and condemn police abuses (as many have already done). They can also contribute money (and urge others to do so) to organizations that promote much-needed reforms such as ending the War on Drugs, eliminating qualified immunity, combating racial profiling, and banning asset forfeitures. All of these reforms would both help curb law-enforcement abuses generally, and be of special benefit to minority communities (which disproportionately suffer from those abuses). Moreover, less confrontatioal strategies are less likely than boycotts to generate a counterproductive public backlash. In view of these alternatives, NBA players have done the right thing in ending the short-lived boycott, and instead pursuing their cause by other means.

That said, there may be issues over which boycotts of US sports leagues by players might have stronger justification. In some instances, the NBA and other major US sports leagues really are perpetrators of injustice, not just bystanders. The most common example is the egregious use of public funds to subsidize sports stadiums.  Studies by economists across the political spectrum consistently show that government subsidies for sports stadiums hurt local economies more than they benefit them. These subsidies routinely fleece the general public for the benefit of billionaire owners and millionaire players, while also damaging local economies. In some cases, cities compound the injustice by using eminent domain to forcibly displace residents and businesses in order to build stadiums.

If players were to boycott the NBA, NFL, and other major sports leagues until the owners agreed to abjure public subsidies for stadiums and the use of eminent domain to seize land for them, the players could very likely achieve that goal in short order! Unlike in the case of police abuses, the owners are key players in perpetrating these injustices, and they could easily end them if they wanted to.

In the case of the NBA, there is also its complicity in running basketball schools in China under the sponsorship of the oppressive Chinese government, where many young players have suffered severe abuse. This practice, too, could be ended if the players were willing to boycott until owners agreed to accept that demand.

I do not claim that the players are hypocritical or morally culpable for largely ignoring these issues where their leagues are morally complicit, and instead focusing on racist police brutality. Many may not even know much about stadium subsidies and the Chinese basketball program, whereas—for understandable reasons—they are well aware of police abuses and racial profiling.

To the extent the players are blameworthy here, the same can be said of fans—myself included—who continue to patronize these leagues. That may be especially true of those—again including myself—who are aware of the stadium subsidies, yet continue to watch games anyway (as I certainly do).

That said, both players and others would do well to focus their sports boycotts on those cases where event organizers are themselves culpable in perpetrating injustice, and especially those where the event itself is part of the cause. We cannot completely exclude the possibility that boycotts can be justified in some other cases. But they are likely to be less common, and require a higher burden of proof to justify the use of boycotts instead of less disruptive tactics.

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The University of Chicago Law Review Online has just published a symposium on the Supreme Court’s decision in Seila Law v. Consumer Financial Protection Bureau, in which the Court held that the CFPB’s structure was unconstitutional and, consequently, that the for-cause removal limitation was invalid.

My own contribution to the symposium, “Conservative Minimalism and the Consumer Financial Protection Bureau,” focuses on how the Chief Justice’s opinion for the Court in Seila Law exhibits many of the conservative minimalist features of his jurisprudence. Here is the abstract (from SSRN):

The October 2019 Term offered further confirmation that Chief Justice Roberts is a conservative minimalist. This jurisprudential approach was on display in Seila Law v. Consumer Financial Protection Bureau, where the Chief Justice wrote the opinion for the Court invalidating a for-cause requirement for removal of the CFPB Director. Chief Justice Roberts’ decision embraced a conservative conception of separation of powers, closely aligned with the “unitary executive” theory. Yet his application of this theory was quite restrained. While embracing principles that would seem to have broader application, the Chief Justice eschewed any questioning of prior precedent and provided the plaintiffs with minimal relief, adopting a surgical approach to severability. Whatever the substantive merits of the Chief Justice’s Seila Law opinion, it was quite consistent with his overall jurisprudence since joining the Court.

Several of the essays are worth a read. Here is a list of the contributions to the symposium:

• Josh Blackman, October Term 2019 in Review: Blue June
• Jerry L. Mashaw, Of Angels, Pins, and For-Cause Removal: A Requiem for the Passive Virtues
• Jonathan H. Adler, Conservative Minimalism and the Consumer Financial Protection Bureau
• Lisa Schultz Bressman, What Seila Law Says about Chief Justice Roberts’s View of the Administrative State
• David A. Strauss, Non-Judicial Precedent and the Removal Power
• Markham S. Chenoweth & Michael P. DeGrandis, Out of the Separation-of-Powers Frying Pan and Into the Nondelegation Fire
• Patricia A. McCoy, Constitutionalizing Financial Instability
• John Harrison, Seila Law and the Law of Judicial Review
• Jack M. Beermann, Seila Law: Is There a “There” There?
• Timothy G. Duncheon & Richard L. Revesz, Seila Law as an Ex Post, Static Conception of Separation of Powers

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