Category: reason

I’m pleased to report that Parler users can now follow our blog at @VolokhC, https://parler.com/profile/VolokhC/posts (just as you can on Twitter, also at @VolokhC). If you are on Parler, please subscribe, and encourage your friends to do the same!

We of course don’t know how successful Parler will ultimately prove, but we’re happy to reach more readers wherever we can find them. Parler has been mostly promoted as friendly to conservatives and libertarians, but if there’s a similar liberal-focused platform, we’d of course be glad to have our blog be readable there, too.

From what we hear, many Parler users tend to be more conservative than we are on average. But if we only spoke to people who entirely agreed with us, that wouldn’t be much fun (and we wouldn’t have many readers). We hope to inform and persuade people from all over the political spectrum.

And on some topics, I think we can be especially useful to conservative readers, precisely because we tend to be more or less on their side of the aisle, even if not as far to the right of the aisle as some. (I use “we” cautiously here; some of us Volokh Conspiracy bloggers are hard-core libertarian, some are moderate, some are more conservative—I myself am probably a libertarianish moderate conservative.) That might make some such readers more open to our perspectives, and especially to our expertise, than they would be to someone they see as on the opposite side politically.

Thus, just to give one recent example, I hope my post about Kamala Harris being a natural-born citizen may come across as more persuasive to conservatives than a post from someone whom they see as being a Harris supporter in the first place. (Of course, the same would be true for posts from liberals coming across as more persuasive to other liberals; it’s just human nature.) One strength of our blog, I think, is that we have specialized expertise and not just opinions. But if new readers’ sharing some of our opinions could lead them to be open to our expertise, we’d be delighted.

In any event, “It is an experiment, as all life is an experiment.” Please keep us posted on how it goes, and on anything we can do to make it work better for you.

Oh, and we’re having an odd technical glitch with the pulling of our RSS feed that is keeping our names from being included in the Parler post titles, even though they are right there in the <title> field. If any of you are familiar with such technical matters and can give us some advice about how to fix it, please e-mail me at volokh at law.ucla.edu.

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Under the best of circumstances, reporting on COVID-19 is tough. There are simply too many unknowns, and even when officials aren’t manipulating the truth they aren’t always willing to cop to the fact that they really don’t have solid answers.

But there’s really no excuse for journalism as sloppy and misleading as the August 13 ABC News segment whose headline blared “US reports highest single-day of COVID-19 deaths.” This video was widely shared, appearing not just on the main ABC News site, but also on Good Morning America, MSN.com, and elsewhere. And it simply wasn’t true.

In it, the anchor solemnly intones that the “United States is reporting the highest number of deaths in a single day—nearly 1,500” while a graphic briefly but completely undercuts her point. The graphic at least points out an important qualifier: The 1,490 deaths represent the deadliest day “since mid-May.” In fact, according to The New York Times’ count, the seven-day rolling average number of deaths in April was double what the current numbers are. If you look at the graphic, you can see that peak deaths plainly occurred months ago. But such attention to such an enormously important detail goes completely missing in the ABC segment, and a less-than-attentive viewer could be forgiven for thinking that the country was in fact experiencing record-setting COVID-19 deaths right now.

A similarly misleading story came courtesy of Bloomberg yesteday, which tweeted this clickbait morsel: “JUST IN: Malaysia detects new coronavirus strain that’s 10 times more infectious.” The story itself was originally titled “Malaysia Detects Coronavirus Strain That’s 10 Times More Infectious.”

The headline has since been changed to the less incendiary, “Southeast Asia Detects Mutated Virus Strain Sweeping the World,” possibly because the article never supported those fearful claims. If you read the piece, you’d learn that the strain being discussed actually “is the predominant variant in Europe and the U.S.” and that “there’s no evidence from the epidemiology that the mutation is considerably more infectious than other strains,” according to an epidemiologist cited in the story. There is a suggestion that it “is said to have a higher possibility of transmission or infectiousness,” but there is in fact no evidence that the strain is either new or particularly bad.

The COVID-19 story is a tough one, with new information emerging all the time. But the media, never infallible in the first place, seem increasingly prone to running stories that are not even internally consistent but instead are a hodgepodge of anxiety and apocalypticism. Under such circumstances, it’s more important than ever to develop razor-sharp media-literacy and bullshit-detection skills. Whether or not a coronavirus vaccine ever arrives, but can at least inoculate ourselves against the more obvious failures of the Fourth Estate.

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Few political transformations have been more remarkable to witness than Ben Carson’s constant ping-ponging on housing policy. The Housing and Urban Development (HUD) secretary can’t seem to make up his mind about whether loosening restrictions on new housing development is a great idea the federal government should encourage or a left-wing plot to destroy the American Dream.

On Sunday, The Wall Street Journal published a joint op-ed by Carson and President Donald Trump in which the two warned that eliminating single-family zoning would import urban dysfunction into thriving suburban communities.

“A once-unthinkable agenda, a relentless push for more high-density housing in single-family residential neighborhoods, has become the mainstream goal of the left,” the article says. “We will save our cities, from which these terrible policies have come, and we will save our suburbs.”

They go on to criticize the elimination of single-family zoning in Minneapolis and Oregon, as well as heretofore unsuccessful efforts by California state Sen. Scott Wiener (D–San Francisco) to preempt local zoning regulations to allow five-story apartments near job centers and transit lines.

The op-ed represents a marked change from the views expressed by Carson in 2018, when he told the Journal that he intended to update federal fair housing rules to encourage the same kind of high-density construction he’s now criticizing.

“I want to encourage the development of mixed-income multifamily dwellings all over the place,” Carson said then, saying that he would “incentivize people who really would like to get a nice juicy government grant” to reform their zoning codes.

Sunday’s op-ed brings Carson’s housing views back to where they were in 2015, when the then–presidential candidate was criticizing an Obama-era fair housing rule for stepping on the toes of local communities’ zoning powers.

“The rule would fundamentally change the nature of some communities from primarily single-family to largely apartment-based areas by encouraging municipalities to strike down housing ordinances that have no overtly (or even intended) discriminatory purpose—including race-neutral zoning restrictions on lot sizes and limits on multi-unit dwellings, all in the name of promoting diversity,” wrote Carson in The Washington Times, comparing such changes to failed socialist experiments.

To quote Homer Simpson: “Some people never change. Or, they quickly change and then quickly change back.”

Carson’s constantly shifting stripes on housing policy represent a broader schizophrenia within the Trump administration. Its efforts to encourage the rollback of predominately local regulations on housing development have given way to toxic culture-war rhetoric about saving the suburbs.

A good marker of the administration’s changing tune is its update of the Obama administration’s 2015 Affirmatively Furthering Fair Housing (AFFH) rule.

That rule—which required jurisdictions receiving federal housing grants to report on obstacles to fair housing and then propose remedies for eliminating those obstacles—has long been a target of conservative criticism for being overly burdensome, overly perspective, and ultimately ineffective. It’s what Carson was criticizing as a threat to single-family zoning in his 2015 Washington Times op-ed.

His 2018 interview in The Wall Street Journal, by contrast, was about wanting to change the AFFH rule so its reporting requirements did a better job of spotlighting how single-family zoning worsened affordability.

In January 2020, the Trump administration issued a proposed replacement AFFH rule that aimed to do just that. It asked HUD grantees to report on a few narrow measures of housing affordability and housing quality, and then propose three policies for improving those metrics. The January rule also held out the possibility that jurisdictions who saw their affordability metrics improve would be rewarded with additional grant money.

This wasn’t a full-fledged free market approach—the government was still attaching strings to grant programs that probably shouldn’t exist in the first place. Still, it at least had the potential to encourage localities to adopt their own market reforms.

But in July, when the Trump administration released a final AFFH replacement rule, it explicitly criticized the January proposal as federal overreach and instead promised to preserve local government control above all else. Meanwhile, the federal grants will continue to flow.

The new Trump-Carson op-ed touts the July rule as an example of Trump’s commitment to safeguarding the suburbs.

As other commenters have pointed out, it’s clear that Trump has become convinced that casting himself as a defender of suburban America, à la Nixon 1968, is the path to electoral success. The new op-ed should be read in that light.

This change in rhetoric and tune is not only disappointing on policy grounds; it’s probably strategically mistaken. By abandoning the fight against restrictive zoning laws, Trump and Carson are forfeiting their ability to call out the progressive hypocrisy on housing policy. By maintaining restrictions on new housing construction, many liberal urban areas and their suburban satellites perpetuate the economic inequality and racial segregation that their politicians decry.

Instead of calling this out, Trump and Carson are defending the development regulations of deep-blue suburbs whose residents hate the idea of another four years of Trump in the White House almost as much as they hate the prospects of another four units of housing in their neighborhood.

Carson and Trump are not wrong when they write that “decades of liberal governance have tragically made many urban cities unaffordable.” A major reason for some liberal cities’ high housing costs is their hostility to new development.

Likewise, when the two say they “believe the suburbs offer a wonderful life for Americans of all races and backgrounds when they are allowed to grow organically, from the bottom up,” that would seem to forestall support for regulations that require suburban communities to forever remain exclusively single-family neighborhoods.

It is true that the federal government shouldn’t be dictating local land-use decisions. Reforming the zoning codes that drive up the price of housing and drive out working- and middle-class residents is something that state and local governments will ultimately have to tackle. A good way to reduce the federal role in local housing policy would be to eliminate the housing and transportation grant programs that give the feds leverage over local regulations.

But rather than push the idea of spending cuts, Carson and Trump are arguing that the federal government should continue to provide funding to local communities without any consideration for how they spend that money, or for whether local regulations conflict with the purposes of those federal grant programs. In doing so, they are embracing harmful housing regulations.

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President Donald Trump recently floated the possibility of a pardon for whistleblower Edward Snowden, who famously informed the public that the National Security Agency (NSA) was secretly collecting and storing millions of Americans’ private phone and online records.

The proposition sort of came out of nowhere—it was a response to a reporter’s question—and is probably basically a reflection of Trump’s willingness to make any idea a trial balloon, plus his now-permanent animosity toward America’s federal intelligence agencies for investigating his campaign. Before Trump became president, he repeatedly called Snowden a traitor and even demanded his execution.

If Trump did, in fact, pardon Snowden, that would be great. But some high-level responses over the weekend might give you the impression that Trump was considering something really awful—like, I don’t know, bombing a foreign country without congressional authorization, or maybe secretly snooping on citizens’ online data.

Susan Rice, former national security adviser and former ambassador to the United Nations, was one of the final four possible running mates for Democratic presidential candidate Joe Biden before he ultimately chose California Sen. Kamala Harris.

After this tweet from Rice, many Democrats are probably relieved she wasn’t the choice:

I. Just. Can’t.

Congratulations GOP. This is who you are now. https://t.co/CAE98A7qjV

— Susan Rice (@AmbassadorRice) August 16, 2020

“This is who you are now.” If only it were true that the GOP were the party opposed to warrantless surveillance! But sadly, neither major party can actually make that claim. There are a number of elected Republicans who support what Snowden did and oppose this violation of Americans’ privacy, but not nearly enough to comprise the majority.

All summer long, we’ve seen story after story about the use of surveillance against protesters demanding police reform. The Democratic Party is most certainly going to be positioning itself this week as criminal justice reformers and in opposition to overly harsh or oppressive policing systems. How tone-deaf do you have to be to attack the Republican Party for possibly not imprisoning a surveillance whistleblower? The American Civil Liberties Union thinks Snowden should be pardoned. The New York Times editorial board called him a whistleblower and wants him to at least get clemency. But not Rice.

Rice got backup from NeverTrumper columnist Jennifer Rubin, who seems upset that the Cold War is over:

Old enough to remember when they were Cold Warriors. Now they praise a traitor and let Putin get away with targeting our troops.

— Jennifer Rubin (@JRubinBlogger) August 16, 2020

Rep. Liz Cheney (R–Wy.), daughter of the warmongering ex-veep Dick Cheney, was happy to pile on with the “traitor” nonsense:

Edward Snowden is a traitor.

He is responsible for the largest and most damaging release of classified info in US history.

He handed over US secrets to Russian and Chinese intelligence putting our troops and our nation at risk.

Pardoning him would be unconscionable.

— Liz Cheney (@Liz_Cheney) August 16, 2020

We have no good evidence that Snowden gave secrets to the Russian and Chinese governments. He gave them to journalists who revealed them to the American public. And the big revelations were about how the NSA treated American citizens.

Cheney focuses on Russia and China here, but the NSA’s apologists have traditionally justified this surveillance as a much-needed way to find out who might have been coordinating with Islamic terrorists overseas. Does anybody remember intelligence officials’ absurd argument that in order to find the needle in the haystack, they needed to build the haystack first? They said they needed everyone’s data in order to search for the “bad guys'” data. This never had anything to do with Russia or China, even if Snowden ended up having to flee to Hong Kong and live in exile in Russia.

The NSA itself has voluntarily abandoned this surveillance. Not only was it ineffective at actually finding threats, but the spies discovered that they simply couldn’t collect this information without repeatedly violating innocent Americans’ privacy rights.

It’s 2020, and people are marching on the streets to stop an overly powerful police state. And yet we’re still seeing people calling Snowden a traitor? Really?

Bonus video: ReasonTV on the case for pardoning Snowden:

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This semester, I will be posting my YouTube class lectures. You are welcome to follow along at home. Or you can watch the livestream on my channel. Property II meets from 9:00 CT-10:15 CT and Constitutional law meets from 10:30 CT-12:10 CT. For Property, we use the 9th edition of Dukeminer & Krier. And for ConLaw, we use my textbook with Randy, as well as our 100 cases supplement.

Today we covered the judicial power in ConLaw, and adverse possession in Property II. At the end of class, I ask students to submit a brief summary of what they learned. The iClicker app limits short answers to 140 characters (the old length of a tweet). My favorite from today:

“You really enjoy Hamilton. Marshall is over rated. Courts lack jurisdiction to issue a writ of mandamus in its original jurisdiction.”

This student was paying attention.

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Rep. Raja Krishnamoorthi (D–Ill.), who chairs the House Oversight Subcommittee on Economic and Consumer Policy, wants the Food and Drug Administration (FDA) to ban e-cigarettes as a COVID-19 hazard. He cites a new study that supposedly shows “e-cigarette users are much likelier to be diagnosed with COVID-19 and to experience symptoms.” But contrary to what you may have read, that is not what the study actually found.

In May, Shivani Mathur Gaiha and two other Stanford researchers conducted an online survey of 4,351 Americans between the ages of 13 and 24, asking about smoking, vaping, and COVID-19 testing, symptoms, and diagnoses. They found that participants who had ever used e-cigarettes alone were five times as likely to be diagnosed with COVID-19 as people who never used nicotine products, a difference that was statistically significant. Yet participants who had vaped during the previous 30 days were less than twice as likely to have tested positive for COVID-19, and that difference was not statistically significant.

Reporting their results in the Journal of Adolescent Health, Gaiha et al. suggest “potential reasons” why vaping might increase the risk of contracting COVID-19. “Heightened exposure to nicotine and other chemicals in e-cigarettes adversely affects lung function,” they write. “COVID-19 spreads through repeated touching of one’s hands to the mouth and face, which is common among cigarette and e-cigarette users. Furthermore, sharing devices (although likely reduced while staying at home) is also a common practice among youth e-cigarette users.”

Such speculation seems premature in light of the finding that current vaping is not associated with a statistically significant increase in COVID-19 risk. Given the confidence interval, it may even be associated with a reduced risk. Meanwhile, the increased risk among people who had ever vaped was large and statistically significant. It is hard to see how the “potential reasons” suggested by the researchers can explain these puzzling results, which imply that people who are still vaping face a lower risk than people who have tried e-cigarettes but do not currently use them.

The study’s findings regarding cigarette smokers are also scientifically improbable. People with a history of smoking (but not vaping) were 2.3 times as likely to have tested positive for COVID-19, while the risk ratio for people who had smoked in the previous 30 days was 1.5. Those results were not statistically significant. But even if they were, the implication, assuming these associations are evidence of a causal relationship, would be that former smokers should start smoking again if they want to reduce their COVID-19 risk.

The results for vapers who were also smokers fit the researchers’ hypothesis a bit better. Participants who had ever been dual users were about seven times as likely to have tested positive for COVID-19, a difference that was statistically significant. Yet the risk ratio for current dual users, although also statistically significant, was slightly lower, meaning that continuing to vape and smoke did not increase the odds of being infected.

Taking these results at face value, one might conclude that people who currently vape and smoke can dramatically reduce their COVID-19 risk by abandoning e-cigarettes and smoking more. That hardly seems like sound medical advice, since smoking is indisputably much more hazardous than vaping. Furthermore, the risk of death among young people infected by the COVID-19 virus, even when they develop symptoms, is negligible, especially when compared to the long-term risk of dying from smoking-related disease.

“If we are to believe these results have real-world implications, then we must believe that exclusively smoking or vaping poses no additional COVID-19 risks, but using both products greatly increases your risk,” observes Gregory Conley, president of the American Vaping Association, a consumer group that supports e-cigarettes as a harm-reducing alternative to the conventional, combustible kind. “Furthermore, having ever used an e-cigarette in your life increases your COVID-19 risks, but having only vaped in the last 30 days does not. This is all scientifically illogical, and no serious health academic would draw conclusions from such contradictory data.”

A USA Today story about the study ignores its counterintuitive implications. “A new study has found that vaping is linked to an elevated risk of COVID-19 among teenagers and young adults, providing more evidence of the harmful effects of electronic cigarettes,” writes health reporter Adrianna Rodriguez. “Teens and young adults who vape are five times more likely to become infected with the coronavirus compared with those who did not use e-cigarettes.” She does not mention that teens and young adults who continue vaping somehow magically eliminate that risk, which should be a red flag for anyone who thinks vaping makes people more likely to get COVID-19.

Rodriguez compounds her journalistic malpractice by invoking the condition that officials at the Centers for Disease Control and Prevention call “e-cigarette, or vaping, product use associated lung injury” (EVALI). Despite that misleading name, those lung injuries are associated with black-market THC vapes, not the legal, nicotine-delivering e-cigarettes that were the subject of the study Rodriguez is discussing. Although EVALI has nothing to with COVID-19 risk among nicotine vapers, it gives Rodriguez another spurious excuse to warn us about “the harmful effects of electronic cigarettes.”

Rep. Krishnamoorthi, who was already using COVID-19 as a pretext for urging the FDA to ban e-cigarettes last spring, is likewise unfazed by Gaiha et al.’s illogical results. On April 1, he notes in a letter to FDA Commissioner Stephen Hahn, “I called on the FDA to clear the market of all e-cigarettes, temporarily, for the duration of the coronavirus crisis.” Back then, the “FDA declined to act, citing the need for more evidence that vaping is a risk factor for contracting coronavirus.” But now, Krishnamoorthi says, “we have the evidence that the FDA was waiting for, and it can no longer deny the danger e-cigarettes pose during the coronavirus crisis.”

Krishnamoorthi claims “the science is now in: e-cigarette users are much likelier to be diagnosed with COVID-19 and to experience symptoms.” But judging from the study on which the congressman is relying, that is true only if people stop using e-cigarettes. If they keep vaping, their COVID-19 risk goes back down. That suggests taking e-cigarettes away from vapers, as Krishnamoorthi wants the FDA to do, will foster the spread of COVID-19. If you don’t buy that, you have to consider the possibility that something is seriously wrong with the study he thinks clinches his case.

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