Category: reason

We are nearing the end of April, and June is coming closer and closer. Any day now, the Court could decide California v. Texas, the ACA case. After the case is decided, the press will immediately declare a single winner or loser. But the elements of the case are far  more complicated. Here I would like to offer a range of possible outcomes for the case.

1. Standing

• Option 1.a: Neither the individual plaintiffs nor the states have standing. The case is dismissed.
• Option 1.b: The individual plaintiffs have standing, but the states do not have standing. The case proceeds.
• Option 1.c: The individual plaintiffs lack standing, but the states do have standing. The case proceeds.
• Option 1.d: Both the individual plaintiffs and the state have standing. The case proceeds.

 

2. Merits

• Option 2.a: The “mandate” is still constitutional. The case is dismissed.
• Option 2.b: The “mandate” can no longer be saved by the NFIB saving construction, but is constitutional for some other reason Chief Justice Roberts cooks up. The case is dismissed.
• Option 2.c: The “mandate” is no longer constitutional. The case proceeds.

 

3. Remedy

• Option 3.a: The “mandate” can be severed from the rest of the ACA.
• Option 3.b: The “mandate” cannot be severed from the ACA’s guaranteed issue and community rating provisions.
• Option 3.c:  If the “mandate” is unconstitutional, then the District Court can also enjoin the other elements of the law that injured the Plaintiffs with standing. (Here the differences between Options 1.b, 1.c, and 1.d become important).
• Option 3.d: If the “mandate” is unconstitutional, then the “major” provisions of the ACA are unconstitutional.
• Option 3.e: If the “mandate” is unconstitutional, then the entire ACA is unconstitutional.

The Cato Brief selected Options 1.b, 2.c, and 3.c. If the Court agrees with us on 1.b and 2.c, I’ll declare victory. That holding would reaffirms the core of our argument: the ACA still imposes an unconstitutional mandate to purchase insurance, separate from the penalty. And between friends, I suspect the Plaintiffs will be happy with that outcome as well. I’ve always been less certain about severability, in large part because the Court is very fractured on that issue. If we get more than two votes on 3.c, I’ll consider it a bonus.

Alas, if history is any guide, this Obamacare cases may once again throw us for a loop.

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Here at the Friday A/V Club, we look at the junk left in our cultural attic, not the junk that gets nominated for prestigious awards. So I won’t dwell on the fact that Aaron Sorkin’s The Trial of the Chicago 7, which is up for six Oscars on Sunday, took the three-ring lunacy of the Chicago 7 trial and somehow managed to reduce it to the pat platitudes of a Stanley Kramer movie. In fact, I won’t dwell on the Chicago 7 trial at all. Suffice to say that the government tried to prosecute seven activists (originally eight) for their roles in the protests at the 1968 Democratic convention, that a lot of crazy shit happened in that courtroom, and that the defendants were eventually acquitted on all charges, though some of them didn’t get a full acquittal until they appealed the original verdict.

Now let’s leap ahead a decade and a half.

In the last installment of this column, we talked about “a disorienting moment in American history: a time after the convulsions of the 1960s and ’70 had ended but while most of the giant figures of that faded age were still around, trying to find a place for themselves in a changed world.” In that case I was talking about the LSD evangelist Timothy Leary and the Watergate burglar G. Gordon Liddy, who held a series of public debates in the early ’80s. But those weren’t the only veterans of the ’60s culture wars to launch a stage show in the Reagan era. Two members of the Chicago 7, Abbie Hoffman and Jerry Rubin, went on a debate tour of their own.

In 1967, Hoffman, Rubin, and three other activists founded the Yippies, a group of psychedelic revolutionaries known for their media pranks and guerrilla theater. (Among other things, they staged an invasion of Disneyland, nominated a pig for the U.S. presidency, and—in Rubin’s case—showed up at a hearing of the House Committee on Un-American Activities dressed as Santa Claus.) Then Hoffman got busted for dealing cocaine and went underground for six years, while Rubin spent the ’70s sampling a smorgasbord of New Age trends. By the ’80s, Hoffman was an activist again, albeit of a more conventional kind, while Rubin was an entrepreneur who worked on Wall Street and organized networking salons for young professionals. In 1984, the former comrades went on the road as the Yippie vs. Yuppie debate.

I caught their act in Chapel Hill, North Carolina, in February 1985—15 years to the month after the Chicago 7 verdict had been handed down. A year after that, they held their final debate in Vancouver. Some folks from AM Productions recorded the Vancouver show, and you can watch it here:

 

By this point, the tone between the two was more bitter than it had been when I watched them debate in Chapel Hill—and Rubin’s mood got grumpier when someone stormed the stage to throw a pie at him. Hoffman was the better showman: He always was the funnier of the two, and he worked the crowd with ease. Whether he “won” depends on who you ask. The video includes some interviews with audience members at the end, and they had a variety of views on the subject.

And what did the duo say onstage? Hoffman pretty much took the standard positions of an ’80s leftist—the sorts of views you would have heard on Mayor Bernie Sanders’ public access TV show. While Rubin…well, the Jerry Rubin of the ’80s was an interesting creature. He had plenty of criticisms of the New Left and the counterculture: He said that he and his comrades had been too macho, too drug-addled, too smitten with Third World Marxist regimes, too unwilling to see the positive side of business. But he insisted that he hadn’t turned his back on his past, that he still wanted social justice, that his work in the ’80s was a natural sequel to his ’60s activism. In some ways, he foreshadowed an idea that later became much more widespread—that beneath those ideological masks, the individualism of the 1960s and the individualism of the 1980s were closely linked.

Unfortunately, Rubin attached that idea to a rather vapid veneration of the baby boom. His big argument wasn’t a libertarian claim that those ideals of peace and freedom are better served by an open economy than by state socialism; he was arguing that the baby boomers were an enlightened generation, that they were joining the establishment now, and that they would put the wealth they were building to more socially conscious uses than the old capitalists did. Some of Hoffman’s best moments in the debate came when he harpooned such generational stereotypes, pointing out that the majority of the baby boomers had not been lefty activists in the ’60s and that there was no good reason to expect them all to have progressive values in the ’80s either. (Rubin’s big example of yuppie do-goodism was Hands Across America, a then-pending effort to raise awareness of homelessness by forming a human chain from one side of the country to the other. Bad choice: In Tyranny of Kindness, her 1993 exposé of the charity-industrial complex, Theresa Funiciello notes that the event “took some $16 millon to raise barely $15 million.”)

In any case, I was ready to mock Rubin when I saw him predict that “in 1988, you will see a baby boom–oriented candidate elected president of the United States.” (Spoiler alert: That didn’t happen.) But later in the video he tempered his forecast and said that the boomer ascension might not happen for another four years after that. So give him a point for the prophecy: Bill Clinton did get elected president in 1992, and his policies did bear some resemblance to the “neoliberal” ideas that Rubin espoused in Vancouver. (Yes, Rubin really used that word—though he meant it in the Charlie Peters sense, not the modern academic sense.) But Clinton didn’t exactly usher in the millennium that Rubin promised, and neither did the three boomer presidents who followed him. And if Joe Biden surprises us all and gives us Rubintopia, he still won’t count: He was born in 1942, so he doesn’t technically qualify as a baby boomer.

But then, neither did Jerry Rubin, who was born in 1938. The would-be generational spokesman didn’t actually belong to the generation he claimed to be speaking for.

Fun fact: In his Hoffman biography, For the Hell of It, Jonah Raskin writes that Abbie Hoffman’s speaking gigs in the ’80s often brought in “as much as a hundred thousand dollars a year,” some of which he quietly invested on the Chicago Mercantile Exchange. Raskin then quotes Hoffman’s broker, who said the old Yippie “loved the idea of making more money than Jerry Rubin.”

(For past editions of the Friday A/V Club, go here. For another installment involving the Yippies, go here. To see another stop on the Hoffman/Rubin debate tour, this one recorded in Alberta, go here. To see Jerry Rubin’s cameo in an early episode of Saturday Night Live, go here. To see me imagining Aaron Sorkin writing The Trial of the Chicago 7 as a heist movie, go here.)

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With medical marijuana legal in 36 states and recreational marijuana use now approved in 18, more Americans than ever before are admitting to using cannabis during pregnancy. Though many doctors still caution against it out of an abundance of caution, some medical groups warn against prosecuting pregnant cannabis users for child endangerment or using positive drug tests to declare them unfit mothers since these interventions can be counterproductive to actually protecting kids. 

Panic about drug use by pregnant women is nothing new. Remember “crack babies“? But root issues are seldom addressed, like the fact that it’s difficult for pregnant drug users to find rehab or detox programs that will even accept them, let alone ones they can afford. Instead, each new wave of illegal drug panic and crackdowns—from crack to meth to opioids—has spurred new excuses for monitoring pregnant women, overriding their consent, and applying strict laws against them. 

When the State Intervenes

In Alabama, hundreds of pregnant women have been prosecuted for positive drug tests, even in the absence of any harm to their offspring. “Since 2006, the law has been used to charge nearly 500 women with endangering their unborn children,” according to a ProPublica investigation in 2015. “A woman can be charged with chemical endangerment from the earliest weeks of pregnancy, even if her baby is born perfectly healthy.”

ProPublica notes that marijuana was involved in 24 percent of Alabama’s pregnancy-related prosecutions for chemical endangerment of a child, but it’s unclear whether marijuana was the only drug involved versus how many cases involved multiple substances. Still, a number of cases from the past several years suggest that arresting and prosecuting pregnant women for pot use alone is not that rare.

So far this year, at least four pregnant Alabama women have faced chemical endangerment charges. If convicted, they face up to 10 years of prison time in the absence of fetal exposure or harm and up to 20 years if the child shows signs of exposure.

High courts in three states—Alabama, Oklahoma, and South Carolina—have affirmed that it’s OK to use general child abuse statutes in the criminal prosecution of pregnant women who test positive for any illegal drug, and a Tennessee law specifically criminalizes the use of narcotics by pregnant women as assault.

South Carolina joins Alabama in using especially brutal enforcement. In Myrtle Beach, Grand Strand Regional Medical Center staff called the cops on a woman whose child tested positive for marijuana in 2019. New mother Lisa Marie Adams was arrested at the medical center where she gave birth and charged with unlawful neglect of a child. In 2019 and 2020, at least two other Myrtle Beach–area women in 2019 and 2020 faced the same charge, which can mean up to 10 years in prison, after either admitting to smoking marijuana while pregnant or having a drug test show traces of it. 

In Louisiana, in 2019, a woman was charged with child desertion and second-degree cruelty, punishable by up to 40 years imprisonment, for smoking pot while breastfeeding. In at least three states—Minnesota, South Dakota, and Wisconsin—drug use during pregnancy can lead to involuntary civil commitment. At least 23 states say any drug use during pregnancy is considered child abuse, according to the Guttmacher Institute.  

Even in states without this explicit policy, a single positive test can trigger longer hospital stays, temporary separation of moms from newborns, and investigation by child protective services (CPS). 

In Pennsylvania, a woman told local news in 2019 that despite being prescribed medical marijuana and having her obstetrician approve of continued use during pregnancy, she had still been investigated by the state’s children’s services department. In New York City, a woman who tested positive for marijuana at a prenatal visit and told her doctor she was using marijuana to manage extreme nausea gave birth several months later to healthy twins who tested negative for cannabinoids and all other drugs. The New York Administration for Children’s Services still filed a neglect petition against her.

When Consent Is Overridden

Back in 2000, the Supreme Court ruled that it’s illegal to drug test pregnant women without their consent, but this hasn’t stopped some hospitals from doing it. Though consent is needed to drug test pregnant women or new mothers, it’s not needed to drug test their babies immediately after birth. 

In Cincinnati, Ohio, where most hospitals have participated in a universal screening program since 2013, mothers giving birth are asked to consent to drug testing. If they refuse, their baby is tested. Hospitals in Alabama often “test mothers and babies without explicit consent and without warning about the potential consequences,” a 2015 investigation from ProPublica and AL.com found. “In some parts of the state, hospitals test on a case-by-case basis, employing criteria that virtually ensure greater scrutiny for poor women.” 

Advocates for universal drug testing say it’s important for overcoming medical staff prejudices in deciding who gets tested, which can break down along race- or class-based lines. But bias can still be introduced under a system of universal testing since there’s still plenty of discretion about what to do with the results. “Black women are more likely to be reported to Child Protective Services for prenatal substance use than are White women, even when their substance use status does not differ,” reported the Journal of the American Medical Association in February 2021. 

“The problem is not actually the testing itself. The problem is what happens in response,” Sarah Roberts of the University of California San Francisco’s Department of Obstetrics, Gynecology and Reproductive Sciences told Gothamist last fall, after New York City announced public hospitals would stop drug testing pregnant women without their explicit consent.

Hospitals don’t tend to advertise drug testing policies and are often tight-lipped about them when questioned, perhaps for fear of opening themselves up to lawsuits. It’s hard to show bias or negligence if no one knows any details. 

Reporters with WCPO Cincinnati talked to eight local hospitals with voluntary universal drug testing for people delivering babies. They found none tracked the instances or outcomes of false positive drug tests, despite several local lawsuits alleging hospitals had called social services over false positive tests.

Hospitals are not required to keep track of the number of false positives produced by their drug tests, even though these tests are unreliable. One 2013 study found that many common baby soaps could trigger a positive urine test for marijuana, while other tests have a hard time differentiating cannabidiol (or CBD, the non-psychoactive cannabis compound) from its psychoactive cousin tetrahydrocannabinol (THC). A range of common substances can produce false positives for amphetamines, opiates, and more. Hair tests are sometimes seen as more reliable, but they’re prone to picking up environmental exposure and are more sensitive to dark hair.

Disparate Enforcement

According to a 2020 Movement for Family Power report, “a newborn positive toxicology [report] is sufficient to allow a CPS agency to open an investigation in every jurisdiction,” though “going from an open case to a finding of maltreatment” is incredibly subjective and varies greatly between states, counties, cities, or even courtrooms within the same jurisdiction. “In some states, evidence that a newborn was exposed to cannabis in utero could result in immediate removal,” writes report author Lisa Sangoi.

This is ludicrous. While it’s well-established that cigarette smoking or excessive alcohol consumption can cause serious harm to growing fetuses, research suggests much less risk posed by fetal exposure to marijuana. Taking a baby from its mom because she used marijuana could do more harm than good.

And while calling child protection agencies may seem harmless, it forces families into a system of bureaucracy and surveillance that can be tough for many parents to get out from.

It’s unclear that policies cracking down on pregnant mothers for drug use really produce healthier pregnancies. Jail is no place for good prenatal care. And the threat of criminal sanctions—or having children taken away—may actually prevent pregnant drug users from seeking sufficient prenatal care, or stop pregnant women who do need help with substance abuse issues from admitting so to their doctors.

Unfortunately, separating newborns from their mothers will sometimes be in a child’s best interest. But considering the high costs of separation soon after birth—plenty of research establishes the importance of sustained early contact between mother and child for both physiological and psychological development—this should be reserved for extreme situations.

To protect children and families, authorities need to stop seeing pregnant women—drug users included—as mere vessels for their unborn children. Creating the best possible outcomes for both mom and baby often means treating pregnancy drug use as a medical issue, not a license for highly punitive criminal justice intervention that runs the risk of making outcomes worse.

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“I’m madder than a penguin on Miami Beach over all the mealy-mouthed politicians whining about the economy and not doing anything about it,” wrote pseudonymous columnist Ed Anger, in the now-online Weekly World News. The one-time tabloid, which recently ran a feature story about an alien orthodontist who finally returned home, had long published Anger’s vitriolic and (hopefully) satirical screeds.

After sifting through news myriad stories about California’s ongoing scandal at the Employment Development Department, however, I’m left wondering: Where is Ed Anger when you need him? I’m “pig-biting mad” about the ongoing unemployment mess, as an angry Anger might write. Yet California’s elected officials and a weary public are treating it like any garden-variety bureaucratic failure.

This is one of the most infuriating scandals ever to plague our state. The department, which is responsible for paying out unemployment insurance claims, has been incapable of paying legitimate claims even as it has paid as much as $31 billion in fraudulent ones, often to inmates. Think about those staggering losses. They would be enough to make a dent in any number of the state’s infrastructure, budgetary, and debt-related problems.

The stories are as unbelievable as the Weekly World News‘ latest Elvis sighting. Here’s a desk-pounder from CBS Los Angeles: “A Fresno girl who just celebrated her first birthday is collecting $167 per week in unemployment benefits after a claim was filed on her behalf stating that she was an unemployed actor.”

The Southern California News Group reported last month that one man “is suspected of using the identities of 23 inmates and others to obtain more than $3 million in state unemployment benefits.”

Approximately 10 percent of the paid claims have been fraudulent, with another 17 percent under suspicion. This will be “the largest fraud investigation in the history of America,” according to one expert interviewed by CALmatters. Part of the blame, it notes, is from “the state’s own failure to cross-check unemployment applications with prison rolls.”

Who are these incompetents who are running this agency? The EDD says it is “one of the largest state departments with employees at hundreds of service locations throughout the state.” It has great pretensions, noting on its website—the same one that continues to crash and can’t process legitimate jobless benefits—that it has “connected millions of job seekers and employers in an effort to build the economy of the Golden State.”

If California is dependent on the EDD to boost its economy, then we are in the same boat as that proverbial penguin waddling through Miami. The Sacramento Bee reported last month that the department’s website remains “plagued with difficulties.” And “nearly six months after (Gov.) Newsom boldly promised to clear a backlog of 1 million unemployment claims at the EDD, the problem continues to worsen,” the Bee‘s Gil Duran noted.

These failures aren’t happenstance but are the result of mismanagement and incompetence at extreme levels. The COVID-19 situation applied additional strains on the department, but that’s no excuse.

“Although it would be unreasonable to have expected a flawless response to such an historic event, EDD’s inefficient processes and lack of advanced planning led to significant delays in its payment of (unemployment insurance) claims,” wrote California State Auditor Elaine Howle, in an emergency audit released in January. The department’s call center only answered 1 percent of calls that Californians had made to check on their claim status.

If you’re not angry enough, consider this hard-to-believe fact. Julie Su, the state labor secretary who was responsible for the department, may receive a big promotion. Republicans pointed out the obvious as she faced Senate confirmation hearings to serve as President Joe Biden’s pick for deputy secretary of the federal department of labor.

“So, while you may not be personally responsible for every case of fraud that happened, the fraud did happen on your watch,” Sen. Richard Burr (R–N.C.) said during the hearing, according to news reports. “You ordered the agency to eliminate some important safeguards to speed up payments, which led to even more fraud.” Su’s confirmation vote is expected next week—and this unconscionable scandal is unlikely to stop her.

Meanwhile, Gov. Gavin Newsom doesn’t seem to be paying any noticeable price for this matter either, even after he buried his bad-news EDD strike-team report showing that he won’t be able to clear up the backlog as promised. The Bee chided him for dropping that report on a Saturday night, where it was unlikely to get much coverage. Nevertheless, Newsom’s approval ratings are improving, as are his chances to deflect a recall.

Welcome to the world government, where no good deed goes unpunished and no level of incompetence goes unrewarded. Is this how you want the healthcare system to be run—by bumbling bureaucracies, dysfunctional IT systems, and elected officials who get promoted when things go awry? I don’t know about you, but I’m channeling some serious Anger.

This column was first published in The Orange County Register.

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Marijuana legalization has gone mainstream. In November, voters in four states approved recreational cannabis, and legislators in Virginia, New Mexico, and New York followed suit in early 2021, sending bills to all three governors’ desks.

But the term legalization obscures vast differences in how states regulate marijuana businesses and consumption. Oklahoma arguably passed the most free market medical marijuana rules among the states. Michigan‘s recreational marijuana regulations largely embrace free and open markets, while Colorado’s have steadily liberalized since legalization. Unfortunately, most other states are choosing highly restrictive market structures that undercut their ability to foster economic growth and quash the black market (we’re looking at you, California!).

Wielding statutes such as possession limits, allowance for home growing, tax levels, licensing regimes, and testing and labeling requirements, states are targeting real political problems or imagined market ones. But such wrangling ensures that legal markets lose out to black markets. Even in polite Canada, only 28 percent of cannabis consumers buy legally, possibly beating out some U.S. states. Here are the four biggest mistakes states make, time after time, when creating legal marijuana markets.

1. Caps on Licenses

Most states where marijuana has been legalized arbitrarily cap how many businesses can be licensed to grow, manufacture, or sell. Advocates justify these caps to limit excess supply from bleeding into black markets, despite every recreational marijuana program’s extensive state-monitored inventory tracking, which uses radio frequency identification on every plant or package and mandatory continuous video surveillance. If each product from every licensed facility is tracked, why cap licenses? 

A more pernicious motivation may lurk under the surface: excluding aspiring competitors. In Nevada, which permits only 120 dispensaries statewide, regulators accepted bribes from applicants, then manipulated the application process in those applicants’ favor. In Illinois, which permits only 30 cultivators in a state with more than 11 million residents, license caps created systemic shortages, raising prices well beyond those found on the black market.

2. High Taxes

Studies show consumers react to even small price changes of legal marijuana, retaining readily available black market substitutes if those prices range too high. Following basic supply and demand, high tax rates end up fostering the black market, shrinking the very tax revenues that government bureaucrats seek. In California, where state and local taxes comprise 30 to 40 percent of legal market prices, illegal sellers were projected to rake in $8.7 billion in 2019 sales while legal sellers reported only $3 billion. No wonder California has fallen vastly short of its forecast revenues, leading legislative analysts to advocate reducing tax rates down to 15 percent.

3. Local Opt-Outs

Legislation that blocks access to legal marijuana within a reasonable distance of residential areas denies voters real access to what they voted to legalize. In California, four out of five local governments prohibit dispensaries within their jurisdictions, with some consumers living over 100 miles from one. Such NIMBY (“not in my backyard”) attitudes ensure there will be rampant black market alternatives. More reasonable efforts, like New Mexico‘s, would allow local governments to set some restrictions on zoning and hours of operation, but don’t outright prohibit sales.

4. Imagined Market Failures

Policy makers preemptively “solve” marijuana market failures without waiting to see if they occur. For example, many states weirdly don’t allow food or drink sales at marijuana dispensaries or stores (because we’ve all seen the horrors that occur at Walgreens where they sell food and drink along with prescription meds).

Government bureaucrats and regulators also seem obsessed with THC levels in legal marijuana products. Florida lawmakers are in their third year of trying to impose a 10 mg THC cap per dose of legal medical marijuana flower, over the objections of doctors, with no scientific or medical basis for picking that nice round number. Oregon limits THC in edibles to no more than a total of 50 mg per package.

Legalization recognizes Americans’ increasingly strong and widely shared opposition to marijuana prohibition. But, unwilling to get out of their own way, states that insist on over-taxing and over-regulating could foolishly reverse all gains.

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