Category: reason

1/31/2006: Justice Samuel Alito takes oath.

 

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A king wanted to audition a new court singer, so his underlings crossed the land, listening to everyone who wanted the job. Finally, they brought two finalists to perform for the king. When the first finished, his majesty said “That’s the worst singing I’ve ever heard” and immediately gave the job to the second singer.

What was his mistake?

He hired someone who might be even worse.

There’s an economic lesson here. The market’s failure to produce an ideal outcome cannot alone justify activist policy, because governments can, and usually do, also fail to produce the ideal. Since perfection isn’t possible, in market processes or in political processes, we need to ask which approach is likely to be better. The case for government intervention must always be comparative.

As I write, Congress is debating a second COVID-19 relief bill. As with the first pandemic bill, both the Democratic and the Republican versions of the legislation contain provisions whose relationship to COVID-19 relief is not clear. The original Republican bill in the Senate contained around $29 billion in military spending, with $8 billion for weapons procurement, including attack helicopters and hypersonic weapon defense. The Democratic version passed by the House in May repeals the $10,000 limit on state and local income tax deductions, and other Democrats have said that a stimulus bill could be combined with spending on climate change and infrastructure after President Joe Biden takes office. Whatever the merits of these proposals, their connection to COVID-19 is minimal at best.

Such spending shows how even well-intended programs end up looking very different after they make their way through the political process. (Each year, state, federal, and local governments combined spend about $1.2 trillion on assistance for the poor, not counting Medicaid. It would take about $200 billion, or one-sixth of what we actually spend, to pull every American family out of poverty.) Whatever the estimated cost of a new long-term program might be when it’s being debated, the eventual cost will be much greater, as we’ve seen with everything from Social Security to Medicaid. By its very nature, the political process transforms clean proposals into messy, more expensive, realities.

Why does this transformation almost always happen? The answer can be found in public choice economics. The founders of public choice theory—among them James Buchanan, winner of the 1986 Nobel Prize in economics—started from the observation that when economists model political choices, they should make the same assumptions about human motivation that they do when they model economic choices. Why should we believe that the broadly self-interested people who occupy economic models suddenly become concerned only with the public interest when they enter the political arena? This posed a problem for the way many economists approached public policy: Until then, it had been as though they were advising a benevolent dictator rather than engaging in a system populated by real human beings who were no more or less self-interested than those in economic models.

In fact, human beings are always looking to improve their well-being through exchange. This observation is core to economists’ understanding of the market; public choice applies the same logic to politics.

The main implication is that for a policy proposal to be accepted, it has to be compatible with the incentives faced by the political actors who will pass it. If it isn’t, the proposal will get transformed into something far messier in order to serve those political interests. For example, unnecessary spending and unrelated programs might be added, as they were to the COVID-19 bills.

Consider the budget deficits that the federal government has run almost every year since the end of World War II. At the beginning of that period, macroeconomists argued that it was OK to balance the budget over the course of a business cycle rather than every year. That way, governments could run deficits during recessions and then make up for them by running surpluses in the good years. This sounds good in theory, but in practice it has produced endless deficits: Spending more and taxing less better serves the vote-seeking interests of members of Congress than does cutting spending and/or raising taxes, even during boom times. Self-interested politicians will pretty much always produce deficits, no matter what economists tell them.

This process can produce far-reaching and long-lasting unintended consequences. One example is the creation of the Federal Reserve System. This was no one’s idea of a blackboard central bank; its unusual structure, which involved 12 powerful regional banks overseen by a weak Federal Reserve Board in Washington, reflected the political interests of the various players in banking policy in the early 20th century. That decentralized structure was one reason the Fed failed to maintain a sufficient money supply at the start of the Great Depression, as there was no federal group responsible for day-to-day monetary policy.

Many New Deal–era programs fit this story, from the various agricultural programs to the creation of federal deposit insurance; so does the byzantine mess that is the U.S. health care system. The incentive structure of politics produces policies with unanticipated problems, which then lead to calls for more interventions that cause a new set of problems, ad infinitum.

The history of these programs is a warning signal for advocates of proposals like the Green New Deal and the universal basic income: They’re going to cost more than you think. They’re going to contain many messy vote-seeking and power-consolidating pieces that were not in the advocates’ best-drawn plans. And they are likely to produce problematic unintended consequences that you have yet to consider. Public choice should make us highly skeptical that a basic income could ever replace the current welfare system, for example, as opposed to being appended to it.

This is not a partisan issue. No matter who has the majority in either house of Congress, they will face the same incentives to seek votes by spending money and to defer the costs of new programs into the future. The specific ways that thoughtful proposals are transformed into problematic programs may differ by party, but the overarching story is the same.

The people who propose new interventions will sometimes vaguely recognize these problems. But that recognition is usually couched in terms of the need for “political compromise” or other language that makes the issue seem more incidental and less fundamental.

But it’s not enough to say, “Those are political problems that we’ll deal with later.” Whenever a proposal to give government more power or resources—or even to restructure its existing power and resources—is being debated, it has to take these realities into account from the start. If you say you think some regulation will improve matters but that you don’t trust the political process to “get it right,” you don’t really think it will improve matters. The relevant standard of improvement has to build in the institutional incentives of the political process. Otherwise it is just wishful thinking. Only if policy makers can convincingly show that a reform will both ameliorate the problem at hand and be in politicians’ self-interest to enact should such a proposal move forward.

Markets are far from perfect, but they channel our self-interest in ways that serve others. Political processes have imperfections too—but imperfections that are far worse at wringing socially beneficial results out of the self-interest and ignorance that characterize the human condition. You can’t count on governments to either “follow the economics” or “follow the science,” because their job is to follow the politics. We must be wiser than the king and listen carefully to the second singer before hiring him.

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Earlier this week, I blogged about California’s decision to lift the regional orders shutting down indoor worship. Now both South Bay and Harvest Rock churches are back to the Supreme Court. Both cases are fully briefed. I had anticipated that California would argue that the dispute were moot, in the never-ending game of Whack-a-Mole. I was wrong. California concedes that the restrictions are still in effect.

The very end of California’s opposition brief is something of a proffer to the Court–if you rule against us, please leave the percentage restrictions in place.

Should this Court disagree, however, it would be critical for it to tailor any injunction and preserve some latitude for state public health officials to limit the number of people attending large and communal gatherings indoors, in order to mitigate the virus’s spread. Cf. Roman Catholic Diocese, 141 S.Ct. at 68 (“[W]e should respect the judgment of those with special expertise and responsibility in this area.”). The court of appeals has already enjoined the numerical capacity limitations in Tiers 2 and 3, South Bay App. A 47-49, and this Court has recognized that, even with those caps, the limitations in Tiers 2 through 4 are “far” less restrictive than the New York restrictions that were enjoined in Roman Catholic Diocese, 141 S.Ct. at 67 & n.2.57 While the State firmly believes that the Tier 1 restrictions are constitutional and critical to preventing excessive spread of the virus, if the Court were to enjoin those restrictions, it should leave the percentage capacity restrictions in Tiers 2 through 4 in effect, and specify that the State may impose the Tier 2 percentage capacity limitations on counties in Tier 1. Cf. Roman Catholic Diocese, 141 S. Ct. at 68 (leaving in place proportional capacity limitation). It would also be critical to allow the State to continue imposing requirements such as “social distancing, wearing masks, leaving doors and windows open, forgoing singing, and disinfecting spaces between services.” Id. at. 69 (Gorsuch, J., concurring).  

Given this posture, Chief Justice Roberts will have an opportunity to rule on a case that is not moot. Justice Breyer will be in a tough spot, as he was sympathetic to the arguments presented in Diocese of Brooklyn. Where will Justice Kagan go?

I also commend the Becket Fund for flagging Governor Newsom’s “bait-and-switch”:

California officials told reporters by at least the morning of January 22— well before the Ninth Circuit panel issued its decision—that it had ICU data it was not sharing with the public, again because it would “mislead.” Don Thompson, “It’s a secret: California keeps key virus data from public,” ABC News (Jan. 22, 2021), available at https://ift.tt/3j3y0tw. After receiving sharp criticism from academic epidemiologists—including from Dr. George Rutherford, one of California’s own declarants in the Harvest Rock case—California officials decided over the weekend to release the data. Ibid. As it happened, that data showed a massive improvement in California’s ICU capacity, including in Southern California. Yet for some reason, California did not share this information with the South Bay panel, which had been led to believe that the ICU capacity metric was far worse than it actually was. By Monday, California wasn’t even taking ICU capacity into account in determining what activities would or would not be allowed. See State of California, Blueprint for a Safer Economy, https://ift.tt/3crXYpg (“Every county in California is assigned to a tier based on its test positivity and adjusted case rate.”). In situations of information asymmetry, courts can be tempted to defer completely to the assertions of government officials. But where core First Amendment rights are at stake—and where no other state in a similar situation has imposed the “draconian” measures California has—courts must be willing to look behind the curtain. Harvest Rock Church, 2021 WL 235640 at *1, *3 (O’Scannlain, J., concurring). Cf. Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 500–501 (1984) (appellate courts have duty of independent review in First Amendment cases). California’s deliberate withholding of information is another reason it cannot meet its burdens of proof and persuasion on strict scrutiny.

We should get a ruling in the next week or two.

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Maryland Rule 8-131(c)

From State v. McGagh, decided Friday by the Maryland high court (always a good excuse for showing The Court Of The Red Robe, see above):

… Karen McGagh was tried … for falsely accusing Glenn Trebay [a Verizon store employee] of sexually assaulting her while patronizing a Verizon store. McGagh stated to a police officer and in a sworn criminal complaint that Trebay cupped her breast and touched her inner thigh. During a bench trial, the State admitted a surveillance video from the Verizon store that did not show Trebay touching McGagh as she claimed {though it showed Trebay briefly touching McGagh at various points throughout the encounter}.

The trial court convicted McGagh of perjury and making a false statement to police officer. McGagh received a sentence of ten years’ incarceration for the perjury conviction, all but eight years suspended, with five years’ supervised probation. McGagh also received a consecutive sentence of six months for the false report conviction….

The trial court found no evidence to support McGagh’s accusations. The trial court convicted McGagh of perjury and giving a false statement to police:

“I find beyond a reasonable doubt that Ms. McGagh perjured herself and that she gave a false statement to Officer Heims. I find that she intentionally lied. And not about everything, that is a many page statement of charges. Many of the things in the statement are true, but the essential, critical facts are untrue. It is completely and totally untrue that Mr. Trebay cupped Ms. McGagh’s breast. It, it’s not even a close call. He didn’t cup her breast, he didn’t brush her breast, he did not touch her breast or her chest in any way. He never got close to her upper inner thigh. I can’t say, having looked at two plus hours of video, that I know where his hands were all the time, but my, I feel like they were, he’s a, as he said, a garrulous guy, he talks with his hands and I saw his hands in the air a lot but,

“I’ll tell you this, he wasn’t in a position to reach across from where he was and rub her or touch her upper inner thigh on the left hand side, which is what Ms. McGagh told Officer Heims happened. I saw it as she showed him on the video, the body camera, I guess is what I mean to say. And I don’t believe that she was confused about what happened. It’s far more likely that she wanted Mr. Trebay fired and the story started and was sort of like that proverbial snowball going down the hill, it just got more ingrained and more elaborate, but it was false. And so, that’s my decision.” …

The trial court based the sentence on an examination of the evidence, McGagh’s behavior before and during proceedings, and a pattern of disregarding the law:

“I don’t think any one of us has ever seen a case like this before and I’m sure [defense counsel] will agree, we’ve never, as [the prosecutor] mentioned, never seen a pre-sentence investigation like this or a psyche evaluation like this. I obviously need to consider, in my decision making, rehabilitation, punishment and public safety….

“[T]his would include her history of deceitfulness, consistent irresponsibility to honor financial obligations and lack of remorse. … During this investigation, she continued to make statements minimizing her own actions and instead, blaming the victim, the Judge and her own attorney. … [T]he pre-sentence investigation, again, … indicates that it’s been suspected that Ms. McGagh continues to drive on a suspended license. I was shocked by the number of just traffic violations, just a, just a consistent unrelenting inability or disregard [ ] for the law. As though it just does not apply to her … Ms. McGagh has been involved in criminal and traffic proceedings in which she has benefited from lenient dispositions.⁸ Regardless of these privileges, she has continued to avoid hearings by numerous failing to appears and not fulfilling her financial obligations in paying fines and costs, as well as financial liens against her.

{In October 2015, McGagh was convicted for theft after the court found her “to be not telling the truth.” Before this proceeding, McGagh was on probation and had an outstanding restitution balance of $13,000.}

The trial court found that falsehoods reflected in McGagh’s background followed “a lifelong pattern of deceitfulness, manipulative behavior and a narration of depicting herself as the victim.” The trial court highlighted a revealing moment of intentional deceit when McGagh told Dr. Kohn, the doctor assigned to her pre-sentence psychiatric evaluation, that “she knows how to play the game and what to say.” The court explained that Mr. Trebay was not the only victim in this case:

“I believe that the police officer who was pulled away from his work and summonsed to the home and lied to, he was very sympathetic to what Ms. McGagh was telling him. And offered her options. … [w]ouldn’t he think the next time he’s called to someone’s house and there’s the complaint of a sexual assault, won’t he remember Ms. McGagh. … The next person who actually makes a complaint to the police, they’re victims and I will tell you the justice system is a victim. We only, this delicate, fragile system only works because we depend on people to have their word mean something. … I have no doubt that had there not been video, Mr. Trebay would be in jail because a jury would say why would she lie about this? … So, I think, not only Mr. Trebay, not only the Commissioner, not only the police officer … but the entire system brought to its knees because we, as a system, may have failed Mr. Trebay if there wasn’t that video.“

The trial court justified why its eight years and six months sentence exceeded the sentencing guidelines:

“Those [sentencing] guidelines do not take into account these facts and all of these victims and all of these lies and this history of dishonest and manipulative [ ] actions that show a complete and total disregard for the other humans that are walking this path…. I think this is one of the most serious and truly despicable crimes that I have witnessed, when you consider the ripples of the damage that [has] been caused.”

{In the sentencing hearing, the State informed the court that Trebay would have faced up to eleven years’ imprisonment for a second degree and fourth degree sexual assault.}

[Sufficiency of the evidence:] The two-witness rule [recognized under Maryland law] describes the minimum evidence needed to establish the falsity of a statement…. “The rule that testimony of a single witness is not sufficient to negative the alleged false oath is not merely technical, but is founded on substantial justice. There must either be two witnesses to prove such falsity, or one witness with material and independently established corroborative facts.” … The two-witness rule applies only to the falsity element.

{The rule no longer requires two, actual witnesses…. “… It is enough that there is testimony of one witness and other independent corroborative evidence[.]” Independent corroborative evidence comes in the form of documents, video footage, or other circumstantial evidence.}

Here, and similar to Hourie, we “clearly” have sufficient evidence from Trebay’s testimony, the Verizon surveillance video, and McGagh’s admission in court for “any rational trier of fact” to find the falsity of McGagh’s statements beyond a reasonable doubt. Trebay testified that he did not “recall” putting his hand on McGagh’s breast or inner thigh. The Verizon surveillance video corroborated his testimony by also showing that the contact alleged by McGagh did not occur. McGagh also conceded during her colloquy with the trial court that the alleged touching did not occur [though she did not concede that she had deliberately lied about it]….

The Verizon surveillance video in this case also satisfies the purpose of the two-witness rule articulated in Brown. The two-witness rule prevents “oath against oath” by allowing the fact finder to observe and judge the credibility of witnesses offering competing recollections of events, while comparing the witness statements against independent, circumstantial evidence. The trial court here had the opportunity to judge and observe McGagh’s and Trebay’s testimony. The Verizon surveillance video provided independent corroboration of the pertinent factual dispute: whether Trebay cupped McGagh’s breast and touched her inner thigh.

The Court of Special Appeals found that the surveillance video’s lack of sound created too much ambiguity to prove the falsity of McGagh’s claims, thereby adopting a too stringent reading of the two-witness rule. Evidence always contains some ambiguity, but the two-witness rule does not require circumstantial evidence to be perfect. “The test” for whether evidence satisfies the two-witness rule is “whether the evidence is of a quality to assure that a guilty verdict is solidly founded.” If other evidence is of “equal weight” to testimony by a witness, it can satisfy the two-witness rule….

The State [also] provided sufficient evidence to satisfy the mens rea elements of McGagh’s perjury and false statement convictions…. “[T]he false [statement] must be deliberate and not the result of surprise, confusion or bona fide mistake[.]”

Here, the trial court found that McGagh exhibited … deliberate behavior …: “I don’t believe that [McGagh] was confused about what happened. It’s far more likely that she wanted Mr. Trebay fired and the story started and was sort of like that proverbial snowball going down the hill, it just got more ingrained and more elaborate, but it was false.” The trial court rejected the possibility that McGagh alleged sexual assault by mistake: “[I]t’s not even a close call. He didn’t cup her breast, he didn’t brush her breast, he did not touch her breast or her chest in any way…. Which is, frankly, not an easy thing to do when one is wearing, a very downy fleece or down vest, which just, you know, it’s thick and straight across your chest.” The trial court further observed that “[Trebay] never got close to her upper inner thigh.”

The trial court reasonably found that McGagh willfully and knowingly made a false statement when she alleged that Trebay sexually assaulted her by touching her breast and inner thigh.

The court also held that perjury convictions need not be reviewed de novo:

Maryland Rule 8-131(c) provides the standard for appellate review of bench trials: “When an action has been tried without a jury, the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.” …

Maryland appellate courts accordingly adopt a deferential standard when reviewing sufficiency of evidence that asks whether “any rational trier of fact could have found the elements of the crime beyond a reasonable doubt.” … Maryland courts have always used the sufficiency of evidence standard to review perjury convictions. Perjury and false report convictions heavily depend on the fact finder’s determination of credibility. The fact finder must intimately evaluate each party’s story to assess who is telling the truth. The deferential standard of review recognizes trial courts’ better position in making this determination. … “Having lived with the case, the trial judge views the situation in three dimension, up close and personal, not from a cold record; thus, having closely observed the entire trial, he or she is able to appreciate nuances, inflections and impressions never to be gained from a cold record.” …

In some cases, this Court has supplemented the Jackson standard with a de novo review when a constitutional right is at issue. The independent examination ensures this Court’s protection of fundamental rights. Our case law demonstrates the proper application of de novo review when the State, through action or statute, seeks to regulate or control protected speech [for instance, in disorderly conduct or obscenity cases]….

In Polk, the State charged the defendant with disobeying a lawful order after the defendant responded with a series of profanities to an officer’s instruction to be quiet and leave the hospital. The case turned on whether the order attempted to control the content of her speech or her aggressive behavior at a hospital…. This Court conducted a de novo review to determine to what extent, if any, the officer’s order violated the defendant’s First Amendment right to free speech….

[But p]erjurious speech does not receive First Amendment protection. The Supreme Court explained in United States v. Alvarez:

“It is not simply because perjured statements are false that they lack First Amendment protection. Perjured testimony ‘is at war with justice’ because it can cause a court to render a ‘judgment not resting on truth.’ Perjury undermines the function and province of the law and threatens the integrity of judgments that are the basis of the legal system.”

Unprotected speech renders unnecessary an independent review of the record for First Amendment violations.

Here, McGagh’s First Amendment rights were not implicated in this case, let alone violated. McGagh did not challenge the constitutionality of the perjury statute on its face or as applied to her. The Court of Special Appeals only suggested that the facts of the case “arguably” triggered a de novo review to evaluate First Amendment interests. The court reads too much of a First Amendment interest into the case. The case turns on whether the State presented sufficient evidence to prove the elements of perjury and false report; it does not turn on whether the State infringed upon her protected speech.

Unlike in Polk v. State (Md. 2003), where this Court needed to determine whether an officer’s order infringed on the defendant’s right to speak (albeit vulgarly), McGagh does not claim the perjury and false report statutes infringed upon her right to petition the government for redress. It would similarly be unnecessary for us to conduct a constitutional analysis here as this Court did in Polk. Respondent never voiced any deterred ability to make a criminal complaint by threat of perjury.

Even if McGagh had raised such concerns, the perjurious content of McGagh’s speech also means it lacks First Amendment protection…. Our holding in no way departs from this Court’s previously acknowledged important public policy objective of encouraging women, and all victims of sexual assault, to bring their truthful sexual assault allegations to light. It also does not abridge an individual’s First Amendment right to truthfully and in good faith report a sexual assault without punishment or intimidation, even if the allegation is later shown to be mistaken, confused, or erroneous.

I don’t think this appellate review analysis is quite spot on: It’s true that perjury is unprotected speech, obscenity, libel, fighting words, and the like are unprotected speech, too. But decisions whether certain speech qualifies as obscenity, libel, or fighting words are generally reviewed independently by appellate courts (see PDF pp. 5-9 of this article), precisely to make sure that only unprotected speech gets punished.

Nonetheless, I think that the court may have gotten the result right as to the proper standard of appellate review. First Amendment independent appellate review generally applies to judgments whether certain facts satisfy the constitutional standard (e.g., whether a particular film lacks serious artistic value, what sort of subjective knowledge qualifies as reckless disregard of the truth, or whether certain words qualify as the sort of face-to-face insults that are likely to start a fight). It generally doesn’t apply to witness credibility determinations, where the question is what actually happened, what was actually said, or whether the speaker knew it was false:

In determining whether the constitutional standard has been satisfied, the reviewing court must consider the factual record in full. Although credibility determinations are reviewed under the clearly-erroneous standard because the trier of fact has had the “opportunity to observe the demeanor of the witnesses,” the reviewing court must “‘examine for [itself] the statements in issue and the circumstances under which they were made to see … whether they are of a character which the principles of the First Amendment … protect.'”

So deferring to the trial judge’s judgment about the defendant’s credibility might have been correct after all, though I’m open to being persuaded otherwise.

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Yesterday, the CDC issued an eleven-page order that required people to wear masks “while on conveyances and at transportation hubs.” The order does not apply in jurisdictions that have requirements that are equivalent to, or more stringent than, the federal mandate.

Here is a brief summary:

(1) Persons must wear masks over the mouth and nose when traveling on conveyances into and within the United States. Persons must also wear masks at transportation hubs as defined in this Order.

(2) A conveyance operator transporting persons into and within the United States? must require all persons onboard to wear masks for the duration of travel.

(3) A conveyance operators operating a conveyance arriving at or departing from a U.S. port of entry must require all persons on board to wear masks for the duration of travel as a condition of controlled free pratique.

The CDC will require “conveyance operators” to use “best efforts” to ensure compliance. In short, no mask, no service.

(4) Conveyance operators must use best efforts to ensure that any person on the conveyance wears a mask when boarding, disembarking, and for the duration of travel. Best efforts include:

• boarding only those persons who wear masks;
• instructing persons that Federal law requires wearing a mask on the conveyance and failure to comply constitutes a violation of Federal law;
• monitoring persons onboard the conveyance for anyone who is not wearing a mask and
• seeking compliance from such persons;
• at the earliest opportunity, disembarking any person who refuses to comply; and
• providing persons with prominent and adequate notice to facilitate awareness and compliance of the requirement of this Order to wear a mask; best practices may include, if feasible, advance notifications on digital platforms, such as on apps, websites, or email; posted signage in multiple languages with illustrations; printing the requirement on transit tickets; or other methods as appropriate.

The order adopts the regulatory definition of “conveyance,” with one addition. Rideshare–a relatively new mode of transportation–is embraced within “conveyance.”

Conveyance shall have the same definition as under 42 CFR 70.1, meaning “an aircraft, train, road vehicle, [FN5] vessel . . . or other means of transport, including military.” Included in the definition of “conveyance” is the term “carrier” which under 42 CFR 71.1 has the same definition as conveyance under 42 CFR 70.1.

FN5: This includes rideshares meaning arrangements where passengers travel in a privately owned road vehicle driven by its owner in connection with a fee or service.

It is less clear that the federal government has authority over privately owned cars that are used for local, intrastate transportation.

Indeed, the definition of “interstate travel” includes intrastate travel:

Interstate traffic shall have the same definition as under 42 CFR 70.1, meaning

“(1): (i) The movement of any conveyance or the transportation of persons or property, including any portion of such movement or transportation that is entirely within a state or possession—

(ii) From a point of origin in any state or possession to a point of destination in any other state or possession; or

(iii) Between a point of origin and a point of destination in the same state or possession but through any other state, possession, or contiguous foreign country.

(2) Interstate traffic does not include the following:

(i) The movement of any conveyance which is solely for the purpose of unloading persons or property transported from a foreign country or loading persons or property for transportation to a foreign country.

(ii) The movement of any conveyance which is solely for the purpose of effecting its repair, reconstruction, rehabilitation, or storage.”

And “intrastate traffic” includes:

Intrastate traffic means the movement of any conveyance or the transportation or movement of persons occurring solely within the boundaries of a state or territory, or on tribal land.

Transportation hubs includes a wide range of places, including those limited to intrastate travel, such as outdoor local bus stops:

Transportation hub means any airport, bus terminal, marina, seaport or other port, subway station, terminal (including any fixed facility at which passengers are picked-up or discharged), train station, U.S. port of entry, or any other location that provides transportation subject to the jurisdiction of the United States.

The mandate includes five exemptions:

• While eating, drinking, or taking medication, for brief periods;
• While communicating with a person who is hearing impaired when the ability to see the mouth is essential for communication;
• If, on an aircraft, wearing of oxygen masks is needed because of loss of cabin pressure or other event affecting aircraft ventilation;
• If unconscious (for reasons other than sleeping), incapacitated, unable to be awakened, or otherwise unable to remove the mask without assistance;’ or
• When necessary to temporarily remove the mask to verify one’s identity such as during Transportation Security Administration screening or when asked to do so by the ticket or gate agent or any law enforcement official.

Three categories of people are exempted from the mandate:

•  child under the age of 2 years;
• A person with a disability who cannot wear a mask, or cannot safely wear a mask, because of the disability as defined by the Americans with Disabilities Act. FN9 [This is a narrow exception that includes a person with a disability who cannot wear a mask for reasons related to the disability.]
• A person for whom wearing a mask would create a risk to workplace health, safety, or job duty as determined by the relevant workplace safety guidelines or federal regulations.

I follow travel blogs closely. There are many, many stories about two-year-old toddlers who cannot wear masks. In most cases, the flight attendants look the other way. But in some cases, the flight attendants forcibly remove the families from the flight. Invariably, these removals create a lot of chaos, where people are stuck on the tarmac for extended periods of time. In the past, airlines had discretion. Now, with a federal mandate, there will be a zero tolerance policy. Airlines would be on the hook for potential liability if a two year old fails to weak a mask. Delta airlines, for example, had permitted some young toddlers to skip mask wearing. Now, that leniency goes away. Good luck to parents who need to keep a mask on a two-year-old’s face for a three hour flight.

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