Category: reason

With the number of reported coronavirus cases surging in many parts of the country, former vice president Joe Biden took the opportunity on Tuesday to wag his own plans for dealing with the deadly pandemic—even though the plans themselves are mostly secondary.

Biden wants all Americans to wear face masks in public, have access to more testing, and get additional aid from the federal government if they cannot return to work for an extended period of time. Those and other ideas that the presumptive Democratic presidential nominee outlined are things that his campaign has been floating since March. But the real purpose of Tuesday’s speech from Wilmington, Delaware, was to draw a distinction between how a potential Biden administration would cope with the pandemic and how the Trump administration has handled it so far—and at a time when polls show most Americans disapprove of the current president’s handling of the crisis.

“Infections are on the rise. The threat of massive spikes that could overwhelm the health care system are on the horizon,” Biden said in one part of the speech addressed directly to Trump. “Mr. President, the crisis is real and it is surging. Promises and predictions and wishful thinking are doing the country no good.”

Biden has the high ground largely because he doesn’t have to put any of his plans to the test. Would a temporary $200-per-month boost to Social Security payments actually help Americans respond to the COVID-19 pandemic, or merely worsen the wealth imbalance created and maintained by entitlement programs? Would putting the federal government in charge of telling states when they can reopen parts of their economies prove more effective than the plans states have implemented on their own, or would it do even more damage than the lockdowns have already caused? Biden says he would sign an executive order to force all Americans to wear masks in public, but the enforcement of such a measure would still depend on local authorities—and, ultimately, on individuals, since the government can’t possibly police something like that.

In other realms, Biden has the advantage simply because of how poorly Trump has responded to the first major crisis of his presidency. After first downplaying the seriousness of the pandemic and then spending weeks touting unfounded potential cures, the president has pushed responsibility to state leaders, has called for less testing to be done, and has held indoor campaign rallies in defiance of the advice of public health experts.

“Americans social distanced and did their part to bend the curve, but Trump didn’t lead,” Biden said Tuesday.

Given the current context of the race and the pandemic, Biden’s specific plans likely don’t matter so much as the impression that he at least has a plan.

In more normal circumstances, there would be an opportunity for Republicans and others to challenge Biden’s plan to hire at least 100,000 federal workers to do testing and tracing, for example, particularly in light of the fact that Congress has already inflated the deficit to record highs. Putting the Occupational Safety and Health Administration in charge of setting social distancing rules for workplaces (and imposing fines for violations), as Biden is proposing, seems like a massive expansion of federal regulatory powers that would be unlikely to recede when the crisis passes. And Biden’s promise to make more aggressive use of the Defense Production Act to force companies to make more masks and other personal protective equipment would be a huge federal intrusion into the market without any clear indication that it would help.

But given Trump’s myriad failures and short attention span for substantive policy discussions, Biden’s throw-everything-at-the-wall approach seems to make political sense.  Near the end of his address on Tuesday, Biden promised to eventually release a more specific plan for what he would do to combat the coronavirus starting “the day after the election is decided.” That’s the plan that will matter—the one that will be rooted in the reality of the pandemic’s advance, the country’s fiscal standing, and the economy’s ability to weather the next few months.

For now, Biden just has to look more competent than the guy who spent last weekend carelessly mashing the retweet button.

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The House of Representatives voted on Friday to recognize the District of Columbia as the 51st state.

The bill, H.R. 51, passed 232-180, predominantly along partisan lines. Every Democrat but Rep. Collin Peterson (D–Minn.) voted for it, while most Republicans—and Libertarian Rep. Justin Amash (Mich.)—voted against it. Nineteen Republicans abstained.

The bill would rename the District of Columbia as the Douglass Commonwealth, a tribute to Frederick Douglass that keeps the D.C. abbreviation. The new state would be granted two representatives and one senator with full congressional voting rights—a privilege the District does not currently enjoy. It would also carve out a much smaller federal district consisting of a cluster of government offices and buildings.

An earlier D.C. statehood bill, also titled H.R. 51, made it to the floor of the House in 1992, but failed in a 153-277 vote. 

A surge of attention to contemporary racial justice issues has prompted a renewed interest in the cause. Racial minorities are a majority of D.C.’s residents, and some advocates have come to view the District’s lack of congressional representation as a form of racism.

While the House vote marks a huge win for advocates and brings D.C. closer than ever to statehood, there are still significant obstacles ahead.

Some critics argue that D.C. statehood may require a constitutional amendment. According to Cornell’s Legal Information Institute, the District was created to be “removed from the control of any state” under the jurisdiction of Congress. Although the House bill ostensibly corrects for this by outlining new, smaller borders for a federal district, Cato Institute legal scholar Roger Pilon argues that because the Constitution draws no distinction between the seat of government and the federal district, the current borders must remain intact.

Other critics dismiss the push for D.C. statehood as a ploy to increase Democratic sway in Congress. “D.C. will never be a state,” President Donald Trump told the New York Post. “Why? So we can have two more Democratic—Democrat senators and five more congressmen? No thank you. That’ll never happen.”

One way to alleviate such concerns would be to create two new states, one that leans Democrat, the other that leans Republican. A proposal by RealClearPolitics columnist Frank Mieli argues that both the District and a predominantly Republican region, such as eastern Washington state, be granted statehood.

Still other critics of D.C. statehood argue that most of the District’s current land could be retroceded to its northern neighbor, Maryland. Under such a plan, the residential areas of the District would become Douglass County. 

D.C. has retroceded land in the past to Virginia, and the city was built on territory gifted by Virginia and Maryland. Because this proposal does not involve adding any new members to Congress, it would avoid upsetting the current political balance in that body.

The idea of granting statehood to D.C. is very popular among residents of the city, but most of the rest of the country remains either opposed or indifferent to the issue. Indeed, a Hill-HarrisX poll found that 52 percent of Americans reject the idea. While support has jumped from 29 percent last year, the statehood movement still has many hearts and minds to win over.

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This morning, the Supreme Court issued its decision in Espinoza v. Montana, striking down Montana’s state constitutional Blaine Amendment, which forbids state aid to “any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.” The decision overrules a Montana Supreme Court decision striking down a state school choice program that had provided tax credits on an equal basis to students attending both religious and secular private schools. The ruling is an important victory for religious freedom, specifically the principle that government policy should not discriminate between private organizations and citizens on the basis of religion.

The decision is a close 5-4 ruling, split along ideological lines with the five conservative justices in the majority, and the four liberals all dissenting. To my mind, that is unfortunate. Striking down blatant government discrimination on the basis of religion should not be so controversial and divisive.

While there are a number of complexities in the case, Chief Justice John Roberts’ majority opinion effectively captures the main issue:

The Free Exercise Clause, which applies to the States un­der the Fourteenth Amendment, “protects religious observ­ers against unequal treatment” and against “laws that im­pose special disabilities on the basis of religious status.” Trinity Lutheran….Those “basic principle[s]” have long guided this Court….

Most recently, Trinity Lutheran distilled these and other decisions to the same effect into the “unremarkable” conclusion that disqualifying otherwise eligible recipients from a public benefit “solely because of their religious character” imposes “a penalty on the free exercise of religion that triggers the most exacting scrutiny….”

Montana’s no-aid provision bars religious schools from public benefits solely because of the religious character of the schools. The provision also bars parents who wish to send their children to a religious school from those same benefits, again solely because of the religious character of the school. This is apparent from the plain text. The provision bars aid to any school “controlled in whole or in part by any church, sect, or denomination.” Mont. Const., Art. X, §6(1). The provision’s title—”Aid pro­hibited to sectarian schools”—confirms that the provision singles out schools based on their religious character….

When otherwise eligible recipients are disqualified from a public benefit “solely because of their religious character,” we must apply strict scrutiny. Trinity Lutheran…

The Blaine Amendment doesn’t exclude only those religious schools which fail to meet neutral educational standards, or have some other kind of flaw. They are barred from receiving state assistance for which similar secular institutions are eligible. That is clearly discrimination on the basis of religion, if anything is. The opinion goes on to explain that the Blaine Amendment cannot possibly survive strict scrutiny, as there is no narrowly tailored state interest that can justify a categorical ban on aid to religious schools, while simultaneously permitting aid to otherwise similar secular ones.

The dissenting justices argue that state governments must be free to discriminate against religious institutions in at least some instances, in order to avoid Establishment Clause programs. Here, for example, is a relevant passage from Justice Sotomayor’s dissent:

Contra the Court’s current approach, our free exercise precedents had long granted the government “some room to recognize the unique status of religious entities and to single them out on that basis for exclusion from otherwise generally applicable laws…..”

Here, a State may refuse to extend certain aid programs to religious entities when doing so avoids “historic and substantial” antiestablishment concerns. Locke [v. Davey], 540 U. S., at 725…. Indeed, one of the concurrences lauds petitioners’ spiritual pursuit, acknowledging that they seek state funds for manifestly religious purposes like “teach[ing] religion” so that petitioners may “outwardly and publicly” live out their religious tenets. Ante, at 3 (opinion of GORSUCH, J.). But those deeply religious goals confirm why Montana may properly decline to subsidize religious education. Involvement in such spiritual matters implicates both the Establishment Clause, see Cutter, 544 U. S., at 714, and the free exercise rights of taxpayers, “denying them the chance to decide for themselves whether and how to fund religion…”

This is a longstanding argument offered by defenders of discriminatory exclusion of religious institutions from government education programs. But it is dangerously flawed. If there is a violation of the Establishment Clause or the Free Exercise Clause any time the state provides assistance that helps religious people engage in “spiritual pursuits,” then the same argument can be used to justify excluding religious institutions from virtually any government service or tax credit. If the government provides police and fire department protection to religious institutions on the same basis as secular ones, that facilitates worshippers’ “spiritual pursuits” and denies taxpayers ” the chance to decide for themselves whether and how to fund religion.” The same point applies if the government gives tax exemptions to religious charities on the same basis as secular ones (as both the federal and state governments routinely do).

You don’t have to adopt many conservatives’ unduly narrow interpretation of the Establishment Clause (which they interpret as barring only the establishment of an official church or as directly coercing people to take part in its services) to recognize that nondiscrimination is not establishment. Even if government endorsement of religion also qualifies as an “establishment,” merely treating religious institutions the same as secular ones does not count as such an endorsement. For example, no one claims that the government endorses religion when it gives legal effect to religious wedding ceremonies on the same basis as purely secular ones.

There is an in-depth debate between the majority and the dissenters over whether Espinoza can be distinguished from the Court’s 2004 decision in Locke v. Davey, which upheld a state law denying scholarships to students pursuing degrees in “devotional theology” for the purpose of studying for the ministry. I think Roberts has the better of this debate, but I will not try to cover it in detail here. I would note, however, that there is an obvious difference between refusing to fund studies for a degree devoted to a specific subject matter, and categorically denying funding to all students attending religious institutions, even if they meet the curricular standards required for secular schools to be eligible for assistance.

Funding of education necessarily requires some criteria for determining which subjects have to be taught in order to qualify. Otherwise, the state would end up subsidizing attendance at institutions that only teach material that is completely irrelevant to the state’s educational objectives—for example a school whose curriculum consists solely of training to repair obsolete typewriters. Imposing neutral curricular requirements in a scholarship program is different from categorically barring participation by religious schools, even if they cover the subjects required by the state just as well as secular ones do.

Two of the dissenters—and many of Montana’s supporters in the legal academy—argue that there is no actual discrimination on the basis of religion here, because the net effect of the Montana Supreme Court’s ruling enforcing the Blaine Amendment was to invalidate the entire school choice program, thereby denying aid to both religious and secular private schools. For example, Justice Ruth Bader Ginsburg argues that Montana simply “put all private school parents in the same boat.”Roberts has a good response to that point:

The Montana Legislature created the scholarship program; the Legislature never chose to end it, for policy or other reasons. The program was eliminated by a court, and not based on some innocuous principle of state law. Rather, the Montana Supreme Court invalidated the program pursuant to a state law provision that expressly discriminates on the basis of religious status. The Court applied that provision to hold that religious schools were barred from participating in the program. Then, seeing no other “mechanism” to make absolutely sure that religious schools received no aid, the court chose to invalidate the entire program….

The final step in this line of reasoning eliminated the program, to the detriment of religious and non-religious schools alike. But the Court’s error of federal law occurred at the beginning. When the Court was called upon to apply a state law no-aid provision to exclude religious schools from the program, it was obligated by the Federal Constitution to reject the invitation…. Because the elimination of the program flowed directly from the Montana Supreme Court’s failure to follow the dictates of federal law, it cannot be defended as a neutral policy decision..

Imagine that a state legislature enacted a school choice program similar to Montana’s, and that the state supreme court then struck it down because it violated a provision in the state constitution barring state aid to racially integrated schools. The state could then argue there was no racial discrimination here, because the end result of the ruling was that students attending both segregated and integrated private schools are denied tax credits. Few would deny that the state government would be acting unconstitutionally in such a case, because the denial of tax credits was the result of a provision in state law that explicitly discriminates on the basis of race. The Montana Supreme Court ruling enforcing the Blaine Amendment in Espinoza qualifies as discrimination on the basis of religion, for exactly the same reason.

Montana remains free to deny state assistance to all private schools alike. But it cannot do so on the basis of a state law that requires discrimination on the basis of religion, and thereby leads to the invalidation of tax credit programs that do not themselves discriminate in this way.

Finally, it is worth mentioning the fact that Montana’s original Blaine Amendment was enacted in 1889, as part of a nationwide Blaine Amendment movement motivated by bigotry against Catholic immigrants. Justice Alito discusses the relevant history in some detail in his concurring opinion. Normally, this kind of bigoted motivation would be enough to strike down a government policy, even if it was ostensibly neutral on its face. Here, the issue of motivation is not crucial, because the Blaine Amendment does in fact discriminate on the basis of religion on its face. It explicitly discriminates against religious schools, relative to secular ones.

However, I also agree with the argument that the bigoted motivation behind the law provides an independent basis for striking down Blaine Amendments. If the enactment of a seemingly neutral law or policy is motivated by unconstitutional discrimination on the basis of religion (or some other forbidden criterion), it should be invalidated unless the government provides strong evidence that it would have enacted the same law or policy even in the absence of unconstitutional motives. I have defended this principle in other contexts, such as the Trump travel ban case, and it applies here too. It is unfortunate that both liberal and conservative justices seem to apply it inconsistently, depending on whose ox is being gored in the particular case at hand.

In the case of Montana, this is is admittedly complicated by the fact that the Blaine Amendment was reenacted in 1972, as part of the process of drafting a new state constitution. The 1972 framers arguably did not have the same bigoted motives as those who enacted the 1889 version.

This raises the issue of whether the reenactment “cleanses” the taint created by the bigotry of the 1880s. I cannot fully do justice to this complicated issue in a blog post that is already too long. But I will say that such “cleansing” can only occur if the reasons for reenactment are not themselves tainted by unconstitutional motives. In this case, such a standard will be difficult to meet, because the Amendment discriminates on the basis of religion on its face. Thus, the motives for reenactment necessarily involve some form of discriminatory hostility towards religious institutions, even if no longer focused primarily on Catholics. In his opinion, Alito makes some additional points on why the 1972 reenactment remained tainted by unconstitutional motives. He also (correctly) points out that the reenactment issue does not arise in the case of the many states that still have Blaine Amendments dating back to the original 19th century Blaine movement, and not reenacted since.

Ultimately, the issue of motive isn’t crucial in this case. It is enough that the Montana provision discriminates against religious institutions on its face.

While I am happy about the result of this decision, I am troubled, though not surprised, by the 5-4 division along ideological lines, which replicates the one that happened in the 2018 travel ban case (with the exception of Justice Kennedy, who has since retired from the Court). The conservative justices who turned a blind eye to religious discrimination in the travel ban case consider it imperative to strike it down here. The liberal justices, for their part, have the opposite bias. That ideological division is likely to be replicated in commentators’ reactions to the ruling, as well. It is, I fear another example of how both liberals and conservatives are often inconsistent in their approach to issues of religious discrimination.

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The U.S. Supreme Court delivered a major victory today for both school choice and religious liberty advocates. “A State need not subsidize private education,” declared Chief Justice John Roberts. “But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

The case is Espinoza v. Montana Department of Revenue. It centered on a 2015 scholarship program created by the Montana legislature “to provide parental and student choice in education.” The program functioned by offering a tax credit to individuals and businesses who donated to private, nonprofit scholarship organizations, which used those donations to fund educational scholarships. Qualifying families could then use the scholarship dollars to help send their children to a “qualified education provider,” including religiously affiliated private schools.

But the Montana Supreme Court killed the scholarship program in 2018, holding that it violated a provision of the Montana Constitution which bars the use of public funds “for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in party by any church, sect, or denomination.”

The Montana Supreme Court acknowledged that U.S. Supreme Court precedent—which has upheld the constitutionality of similar school choice programs—cut against its decision. But “we conclude that Montana’s Constitution more broadly prohibits ‘any’ state aid to sectarian schools and draws a ‘more stringent line than that drawn’ by its [federal] counterpart.” The state court, in other words, charted its own path in opposition to the federal jurisprudence laid down by SCOTUS.

Today the Supreme Court reversed the state court. “The Montana Supreme Court invalidated the program pursuant to a state law provision that expressly discriminates on the basis of religious status,” Chief Justice Roberts wrote for a 5-4 majority. That decision “burdens not only religious schools but also the families whose children attend or hope to attend them. Drawing on ‘enduring American tradition,'” he continued, “we have long recognized the rights of parents to direct ‘the religious upbringing’ of their children. Many parents exercise that right by sending their children to religious schools, a choice protected by the Constitution.”

“Given the conflict between the Free Exercise Clause and the application of the no-aid provision here,” Roberts concluded, “the Montana Supreme Court should have ‘disregard[ed]’ the no-aid provision and decided this case ‘conformably to the Constitution’ of the United States.”

The Supreme Court’s ruling in Espinoza v. Montana Department of Revenue is available here.

Read the Reason Foundation’s amicus brief in support of Kendra Espinoza here.

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Nearly a third of the 3,500 inmates incarcerated in San Quentin State Prison in California have tested positive for the coronavirus as of Monday.

California is one of the states seeing new spikes in COVID-19 infections, with nearly 225,000 infections across the state and 6,000 deaths as of Monday. Total deaths in the state still rank well below New York, which has had more than 31,000 deaths, but California is seeing new highs in the daily number of new infections as well as number of new deaths.

Nowhere is the spike more obvious than at San Quentin State Prison, north of San Francisco in Marin County. The prison accounts for half of all new COVID-19 infections among the state’s inmates. Up until May, San Quentin had managed to go without any reported infections at all. Now they have more than 1,000. A representative for the California Department of Corrections and Rehabilitation told USA Today that the prison is setting up tents within the prison to serve as triage space for handling new infections.

In a press conference on Monday, Gov. Gavin Newsom said it’s possible that the infections came to San Quentin via the transfer of prisoners from Chino, formally known as the California Institution for Men, located in San Bernardino County. According to NPR, the 122 prisoners who were transferred from Chino to San Quentin in late May were not tested before being moved. This is particularly foolish since prisoners were moved to San Quentin due to Chino’s own coronavirus outbreak and related overcrowding. (Currently, Chino has more than 500 active COVID-19 infections and has had 16 deaths.)

Newsom says California has released 3,500 inmates and has identified another 3,500 who could potentially be let out in order to reduce the level of crowding and thus the chances of the coronavirus spreading. The state has identified 110 inmates at San Quentin that could potentially be released soon. According to daily population data from California’s prison system, the state prison population is down more than 11,000 inmates from this same time last year.

Despite the new spike and California’s high prison population, the state’s prison system is still seeing fewer infections than in states like Texas and Ohio. Though The Marshall Project notes that 585 inmates in state and federal prisons have died of COVID-19 as of June 25, California has seen comparatively fewer prisoner deaths so far. Hopefully the prison system will learn from this disaster caused by poor planning in its prison transfers and will avoid creating new infection outbreaks. You can’t blame this one on bars and beachgoers.

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