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Two major American airlines are threatening to cut roughly 32,000 jobs in the coming weeks unless Congress delivers another taxpayer-funded bailout—and Speaker of the House Nancy Pelosi (D-Calif.) is preparing to clear the runway.

In a statement on Friday, Pelosi called on airlines to delay planned layoffs that were scheduled to begin after a previous round of federal support expired. Pelosi said House Democrats were working to extend another round of emergency aid to airlines in a stand-alone bill after the passage of a larger coronavirus relief package stalled in the Senate.

American Airlines and United Airlines announced plans this week to slash 19,000 and 13,000 jobs, respectively, after the expiration of a $32 billion aid package passed in March. That bailout, part of the $3 trillion Coronavirus Aid, Relief, and Economic Security (CARES) Act, allowed airlines to tap into federal assistance as long as they kept at least 90 percent of their staff on payroll through the end of September.

With that deadline now passed and air travel still suffering due to the COVID-19 pandemic—passenger air traffic is running at roughly 30 percent of 2019 levels, Reuters reported on Friday—airlines are expected to cut unnecessary staff. But those layoffs create a political problem for congressional leaders and the Trump administration, neither of which want to see unemployment climb again in advance of the election. The airlines are seeking another $25 billion.

“An airline bailout is bad policy and bad use of taxpayers’ money,” says Iain Murray, vice president of the Competitive Enterprise Institute, a free market think tank.

Congress is trying to protect what Murray calls “legacy carriers,” whose business models are anchored in business travel that no longer makes sense. A bailout, he says, obscures the simple truth that “air travel is not going to ‘return to normal’ anytime soon.”

Despite that, even Republicans are trying to present the possible bailout as a fiscally prudent step. As Reason‘s Christian Britschgi highlighted last month, White House Chief of Staff Mark Meadows, the former chairman of the supposedly fiscally conservative House Freedom Caucus, has been pushing for more aid to airlines. Sen. John Cornyn (R–Texas) has also voiced support for an airline bailout bill—perhaps because he’s running for reelection next month and represents a state where both American Airlines and Southwest Airlines are based.

But even if a bailout did make some degree of sense, the amount of money Congress is considering handing over to America’s airline industry is far more than what should be needed to keep workers on the payroll.

Do the math, says Veronique de Rugy, an economist at George Mason University and Reason contributor. Even if the 32,000 workers getting furloughed each earned $100,000 annually, supporting their wages for six months would require about $1.75 billion—far less than the $25 billion bailout Congress is considering.

“In other words, the airlines are demanding more than 10 times more than is necessary to support 35,000 employees,” writes de Rugy in an analysis published by the Mercatus Center, a right-of-center think tank.  “These circumstances suggest that the proposed bailout would benefit largely shareholders and creditors, despite its ostensible purpose to help workers.”

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Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

Wildfires are raging across the West, and California is grappling with a record-breaking season. Why, then, does the state tell qualified firefighters that they can’t earn a living fighting fires? The state’s irrational law barring people like IJ’s client Dario Gurrola from working isn’t the only one of its kind on the books. Learn more about this and other collateral consequences laws in the latest episode of IJ’s Deep Dive.

• Pro tip: When drafting criminal laws, try to avoid language that the First Circuit is forced to call “a jumble of words.”
• Two-thirds of this Third Circuit panel says that the First Amendment protects the public’s right to access off-the-record bail hearings but that right does not extend to recording or transcribing those hearings. Which, a dissent notes, seems like a pretty cruddy kind of right.
• Fifth Circuit: We’re not saying a criminal defendant can never successfully establish a “trial penalty” claim, but the sentencing judge would pretty much have to say, “I’m imposing a trial penalty.”
• Allegation: In 1987 and 1988, U.S. chemical manufacturer exports 538 tons of thiodiglycol to Western Europe, knowing that the shipments are likely to be diverted to Iraq for the manufacture of mustard gas. In 1994, veterans of the Gulf War sue, alleging they suffered injuries from exposure to mustard gas. After removal to federal court, district judge rules for chemical manufacturer. Fifth Circuit: Correctly. The Justice Against Sponsors of Terrorism Act does not apply to injury caused by acts of war, which this would be.
• On September 25, just 18 days before early voting begins in Texas, a district court enjoined enforcement of a 2017 Texas law that eliminated straight-ticket voting. Fifth Circuit: Can’t be doing that so close to an election; the state has already mailed out thousands of ballots without straight-ticket voting. The ruling is stayed.
• Michigan man drives drunk, sideswipes a car, runs from police into the woods, but eventually gives up. Even though he lies down and attempts to surrender, officer beats and chokes him, saying something like “that’ll teach you to run.” Jury awards $1 in actual damages and $200,000 in punitive damages. Sixth Circuit (over a dissent): Sure, punitive damages can be more than actual damages. But not that much more. $50,000, tops.
• Michigan man falls $1,100 behind on his property taxes, leading the state to foreclose on his home, sell it at auction for about half its fair market value, and keep all the proceeds. Sixth Circuit: And he shall have his day in court. Neither the Tax Injunction Act nor the now-repudiated Williamson County doctrine bar his claim.
• The Democratic National Committee challenges Wisconsin election statutes, contending that, although constitutional in principle, the laws will abridge voters’ rights during the pandemic. District court orders that some deadlines be extended. Intervenors, the Republican National Committee and the Republican Party of Wisconsin, seek a stay from the Seventh Circuit. Seventh Circuit: And how are you injured by this?
• California churches challenge the constitutionality of the governor’s COVID-19 executive orders as they apply to in-person worship services. District court denies a preliminary injunction, and the churches seek an emergency injunction pending appeal. Ninth Circuit: Denied. Dissent: Attending church is at least as important as going to the mall or getting a pedicure, both of which are allowed.
• Is it a problem when a prosecutor repeatedly tells the jury that the presumption of innocence no longer applies to the defendant? Two-thirds of this Ninth Circuit panel is quite sure it is.
• Allegation: Suspecting drugs, Nevada prison officials strip-search a woman visiting her incarcerated boyfriend (including having her take out a tampon; she is not provided with a replacement). Ninth Circuit: She should’ve been given the option to leave rather than be searched. It’s a Fourth Amendment violation—but not a clear one. Qualified immunity!
• California man gets a call from the police, who are investigating a burglary at his home. He leaves work to talk to them and—TWIST—there was no burglary. The “cops” are FBI agents investigating the man’s alleged child-porn possession. They lured him home to search him and his car, which weren’t covered by their warrant. Ninth Circuit (over a dissent): There are ruses, and there is exploiting government trust. Confession suppressed.
• Proving once again that the “best evidence rule” does not actually refer to the helpfulness of evidence, the Tenth Circuit (over a dissent) vacates a drug conviction because the government offered translated transcripts of incriminating Spanish-language conversations instead of offering the original recordings.
• And in en banc news, the Fourth Circuit will sit en banc to consider its stay of a district court order restraining South Carolina’s enforcement of its witness signature requirements for absentee ballots during the pandemic.

Friends, last year, Sylvia Gonzalez—a 72-year-old retiree—was elected to the Castle Hills, Texas city council on the promise that she’d work to make the city more responsive to citizens’ needs. But Gonzalez’s reform agenda did not sit well with the incumbents—representing the city’s entrenched interests—including the mayor and city manager, who residents complained did little to address their concerns. Rather than listening to Gonzalez’s concerns, officials abused their power to retaliate against her. Now she has joined with IJ to fight back. Click here to learn more.

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Last night, President Trump announced that he and his wife Melania have both tested positive for the Coronavirus. This has led to speculation about what might happen if Trump becomes too incapacitated to continue serving as president, has to drop out of the election, or both. The former issue is governed by the Twenty-Fifth Amendment. Legal scholar Brian Kalt, who literally wrote the book on this subject, addressed the relevant issues in a recent Washington Post op ed:

The key provision is the 25th Amendment…. Enacted in the 1960s after John F. Kennedy was assassinated and at the height of the Cold War, the 25th Amendment finally provided a clear process, with the aim of ensuring that there is always a hand at the helm.

Section 3 of the amendment allows the president to transfer power voluntarily to the vice president. To do this, Trump would send formal notice to the speaker of the House and president pro tempore of the Senate, declaring that he is “unable to discharge the powers and duties of his office.” Upon transmitting this declaration, Vice President Pence would become acting president — those powers and duties would all go to him. Whenever Trump felt able again, he would send a new declaration and immediately take back control…..

Recognizing that the president might be incapacitated but unwilling to admit it — or, more problematically, unable to admit it because he is unconscious — the 25th Amendment also includes Section 4, which transfers power without the president’s consent. Instead of Trump transmitting his declaration declaring he is “unable,” Pence and a majority of the core members of the Cabinet do so…. As in Section 3, power immediately transfers to the vice president. If Pence and the Cabinet members did invoke Section 4, then whenever Trump felt able enough to resume his duties, he would send a declaration to that effect, kicking off a four-day waiting period during which Pence would stay in control. If Pence and a majority of the Cabinet did not disagree with Trump’s declaration within those four days, Trump would retake his powers. If Pence and the Cabinet did disagree, the question would get kicked to Congress, with Pence in charge in the interim. Unless both chambers agreed by a two-thirds majority, within 21 days, that Trump was unable to serve, Trump would retake power. But even if Trump lost the congressional vote, he would not be removed from office, and he could try again and again to retake his powers using the same process.

What about the fate of the election if Trump dies or has to withdraw from the race, due to illness or incapacity? That is murky, as well. Rick Hasen, one of the nation’s leading election law scholars runs through the possibilities in this article:

The problem here is that ballots are already out and millions of people have already voted. At this point it seems impossible for the parties to come up with a new name to replace Trump or Biden on the ballot without starting the whole election process over. This is not practically possible about a month before Election Day, and becomes less possible by the day. Congress could pass a bill delaying the election, but it is almost impossible to believe they would.

While things are far from certain, what’s most likely is that the election would take place on time with the deceased or incapacitated candidate’s name on the ballot. Then there would be a question if legislatures would allow presidential electors of each state to vote for someone other than the deceased candidate, such as that candidate’s vice presidential selection, depending on who won the state. Only some state laws provide for this eventuality, allowing the votes for a named replacement to be counted. Some states have adopted the Uniform Faithful Presidential Electors Act, which leaves the question open…

Another alternative is that individual state legislatures would seek to appoint electors directly. Here’s where it gets especially tricky. Article 2 of the Constitution gives state legislatures the power to set the “manner” for choosing presidential electors. States have given that power to voters to vote, but they can take it back. It’s probably too late to take it back now that voters have started voting, but there’s a provision of the federal Electoral Count Act that lets state legislators choose electors when voters have not made a choice (for whatever reason). Could a Republican legislature—for example, Pennsylvania’s—say that an election with one deceased candidate on the ballot is not really an election where voters have made a choice, and try to appoint electors directly? They could try, though it is quite uncertain whether the courts and Congress would let them succeed…..

In short, there would be a ton of uncertainty if we faced such a tragedy as a presidential candidate dying or becoming incapacitated during this period.

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After rising for three years in a row, marijuana arrests in the United States fell by 18 percent in 2019, according to the FBI’s latest numbers. Police made about 545,600 marijuana arrests last year, compared to about 663,400 in 2018. As usual, the vast majority of those arrests—92 percent—were for possession rather than manufacture or sale. The National Organization for the Reform of Marijuana Laws reports that “much of the national decline resulted from a drop-off in marijuana arrests in Texas in 2019, which experienced over 50,000 fewer marijuana-related arrests last year” than in 2018.

Nationwide, marijuana arrests peaked at nearly 873,000 in 2007; last year’s number was 37 percent lower. While the odds that any given cannabis consumer will be arrested have always been low, they are getting lower. Possession arrests in 2007 represented about 3 percent of marijuana users that year, judging from survey data. That risk last year, when there were more marijuana users and fewer arrests, was down to about 1 percent.

As the above graph above indicates, marijuana arrests are down 27 percent since Colorado and Washington became the first states to legalize the drug for recreational use in 2012, but the decline has not been smooth. After dropping in 2013, pot busts rose in 2014, fell in 2015, then rose slightly for three consecutive years before dropping substantially in 2019. During that period, nine other states and the District of Columbia legalized recreational marijuana, although Vermont and D.C. do not allow commercial distribution.

Since possession had been legalized in eight states—including California, the most populous—by 2017, it may seem surprising that marijuana arrests continued to rise until last year. But in California, possession of an ounce or less for personal use had been treated as a citable offense punishable only by a $100 fine since 2011. So while California accounts for 12 percent of the U.S. population, it accounted for less than 2 percent of marijuana arrests in 2016.

Four of the other jurisdictions that legalized marijuana in 2012, 2014, or 2016—D.C., Maine, Massachusetts, and Oregon—likewise had already decriminalized possession of small amounts. In Alaska, Nevada, and Washington, possession was still a misdemeanor, while Colorado treated it as a “petty offense.” Another thing to keep in mind: Public marijuana use remains an arrestable offense even in states that have legalized possession, cultivation, and distribution. Still, the increases in marijuana arrests after these jurisdictions legalized recreational use suggest that other states picked up the slack.

Three more states—Illinois, Michigan, and Vermont—legalized recreational use in 2018 or 2019. Illinois and Vermont had already decriminalized possession, as had many cities in Michigan. In 2016, Michigan’s share of marijuana arrests was about the same as its share of the national population. As you would expect, Vermont, which has a tiny population (about 0.2 percent of the national total), accounted for an even tinier share of marijuana arrests (about 0.02 percent). But Illinois accounted for about 12 percent of marijuana arrests that year—three times its share of the U.S. population.

In 2014, Washington Post reporter Aaron Blake found that Illinois had more marijuana arrests per capita than any other state. The rate in Illinois was 80 percent higher than the rate in New York, which was the runner-up even though it supposedly had decriminalized possession of up to 25 grams (nearly an ounce) in 1977. New York’s law still allowed arrests for possessing marijuana that was “burning or open to public view,” a loophole that the New York Police Department used to launch a cannabis crackdown during Michael Bloomberg’s administration, when low-level pot busts in the city skyrocketed. The state legislature closed that loophole last year.

As New York’s experience shows, “decriminalization” is not necessarily as meaningful as it sounds. Even after Illinois decriminalized possession of less than 10 grams (about a third of an ounce) in 2016, people caught with more than that amount could still be arrested. Yet decriminalization, perhaps combined with a reassessment of police priorities, seems to have had a dramatic impact in Illinois. According to the Chicago Sun-Times, police in that city made 129 arrests and wrote 300 tickets for marijuana possession in 2017, compared to 21,000 arrests in 2011. Legalization had an additional effect: The Associated Press reports that marijuana arrests in the Chicago area plummeted after legalization last year.

While the risk of arrest is small and getting smaller, it is not evenly distributed across the population. This year the American Civil Liberties Union (ACLU) reported that blacks are 3.6 times as likely to be arrested for marijuana possession as whites, even though rates of cannabis consumption in the two groups are similar. That was about the same as the ratio that the ACLU reported in 2013.

Racial disparities persist even after decriminalization and legalization. In 2017, the Sun-Times reports, four-fifths of the people busted for marijuana possession in Chicago were African Americans, who account for about a third of the city’s population. After states legalize marijuana, the ACLU found, the black-white gap shrinks but does not disappear. In Colorado, for example, public use remains illegal, and blacks are almost twice as likely to be arrested for such offenses as whites.

As with New York City’s anti-cannabis crusade, which overwhelmingly targeted blacks and Hispanics, there are possible explanations for these disparities that do not involve racist intent. If police concentrate their resources in high-crime neighborhoods or if people with smaller living spaces are more likely to use marijuana outside, for instance, those factors would be apt to increase the risk of legal trouble for black cannabis consumers. But the fact remains that skin color predicts how likely a pot smoker is to be arrested, which is a troubling state of affairs, regardless of intent, for a country that aspires to equal treatment under the law.

While people arrested for marijuana possession generally do not spend much time behind bars, they suffer long-lasting ancillary penalties. A marijuana arrest or conviction makes it harder to get an education, make a living, and find housing. That’s why clearing the records of marijuana users (and growers and sellers) who were unlucky enough to be caught is an important, although frequently overlooked, part of reversing, or at least ameliorating, the injustice inflicted by pot prohibition.

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