Category: reason

New York Gov. Andrew Cuomo has a plan to curtail corporate bailouts, and he’s taking it to Washington, D.C. He has proposed the “Americans First Law,” which would require that corporations return government money if they do not restore their workforce to pre-coronavirus levels. New York’s congressional delegation will introduce the bill in the U.S. House of Representatives.

“No handouts to greedy corporations, no political pork, and no partisanship,” Cuomo said at a Tuesday press conference.

“I understand businesses need to recover, this doesn’t have to be a giveaway to the rich millionaires who are doing just fine anyway, and it doesn’t have to be a giveaway to big business,” he noted. “It shouldn’t be that another episode in history where somehow the rich figure out a way to get more assistance when it is supposed to be about helping average Americans.”

Cuomo’s said his concerns were informed by his time as New York Attorney General during the 2008 financial crisis, when the federal government rescued Wall Street with an aid package that partially bolstered executive compensation. But Cuomo’s suggestion that corporations will be able to magically return to business as usual after months of being on economic life support makes little sense.

For instance, lawmakers attached similar conditions to $25 billion in federal bailout money for the airline industry. One such requirement stipulated that airlines keep employees hired through September 30, by which time many Americans believed life would be somewhat back to normal. But United Airlines has since announced it will convert 15,000 employees from full-time to part-time and begin layoffs on October 1. One analyst anticipates that 20 to 30 percent of airline jobs will disappear over the next year as major American carriers seek to reduce costs in response to a prolonged stretch of historically low air travel. The CARES Act also requires airlines to continue flying near-empty planes at a huge financial loss, causing carriers to burn through money that could soften those planned layoffs in the fall.

Nevertheless, Sen. Josh Hawley (R–Mo.) took to Twitter to speak to a manager after he found out about United’s actions. “I’m at the airport, flying back to DC, and multiple United employees have told me the company is cutting their hours, pay & benefits immediately,” he said. “This is AFTER United took billions in bailout money that was earmarked for workers.”

United, like Delta and JetBlue, was likely to massively cut payroll regardless of whether it received a bailout, but it was unlikely they were ever going to close up shop completely. Large corporations can restructure through bankruptcy, while smaller businesses have less leverage with their creditors and a harder time bouncing back from economic slumps. (This is one reason why Rep. Justin Amash (L-Mich.) and hundreds of economists opposed the corporate bailouts in the CARES Act.)

While Cuomo is right to bemoan providing further subsidies to the country’s largest companies and their wealthy investors, requiring all firms that received assistance to operate at a loss (or else) is simply another form of economic denialism.

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An amendment that would forbid the feds from accessing Americans’ web browser and search history without a warrant died by just one vote in the Senate today.

By a vote of 59-37, Senators declined to accept an amendment by Sen. Ron Wyden (D–Ore.) and Sen. Steve Daines (R–Mont.) to a bill reauthorizing the expired USA Freedom Act. As part of resurrecting the Freedom Act, several lawmakers are attempting to push through reforms to better protect Americans from unwarranted, secret searches authorized through the Foreign Intelligence Surveillance Act (FISA) Court.

The proposed amendment by Wyden and Daines simply prohibited using the section of the law allowing for third-party data collection to include web browser and search history information. This amendment would only protect American citizens and only covered warrantless searches.

Still, Senate Majority Leader Mitch McConnell (R–Ky.) opposed the amendment and even circulated a rival amendment that would specifically amend the law in the opposite direction and make it clear that these records were permitted for search targets.

The amendment required 60 votes to pass and fell short by just one vote. The split was not entirely partisan. In fact, 10 Democrats helped McConnell bring the amendment down. Among them were national security state fan Dianne Feinstein (D–Calif.), former vice-presidential candidate Tim Kaine (D–Va.), and Sen. Mark Warner (D–Va.).

But more important was the identity of one of the four senators who didn’t vote: former Democratic presidential candidate Bernie Sanders (I-Vt.). The amendment lost by a single vote. Had he been there, maybe things would have turned out differently.

Read the roll call for the amendment here.

In better news, another reform amendment offered by Sens. Mike Lee (R–Utah) and Patrick Leahy (D–Vt.) passed this afternoon by a vote of 77-19. Their amendment bolsters the independent amicus curiae process for the FISA Court, which allows the court to name independent advisers to advocate on behalf of the rights of people targeted by FISA Court investigations. We saw the value of these independent advisers last year when the court went back to evaluate what went wrong with the warrants used by the FBI to justify wiretapping Carter Page, a former aide to Donald Trump during the 2016 presidential election. David Kris, appointed by the court to review the process, pushed back against the FBI’s attempt to classify the flaws of the warrant applications as training issues and called for stronger procedures to verify the accuracy of warrant requests.

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California State University announced that classes at its twenty-three campuses would be cancelled for the fall. Instruction, with few exceptions would take place online. This decision affects nearly 500,000 students. The system announced that dealing with COVID-19 was simply not feasible. CalState would have had to spend $25 million a week on testing, and it was “enormously expensive” to contract-trace students.

Other institutions have announced plans to bring students back on campus. For example, the University of South Carolina is planning to “test every Student, Faculty and Staff member for COVID-19 upon return the campus.” USC will also plan to “have the capacity to sustain a robust testing program throughout the entire semester.” The University is now “reviewing several comprehensive tracing and tracking apps for early and thorough identification of at-risk contacts.”

I’ve tried to visualize how these steps would work, logistically. Presumably, students and faculty would be required to undergo testing immediately upon their return to campus. The results may take some time to compile. Will those students be allowed to attend classes during that period? How often will students be re-tested?

Purdue University offers this plan:

We intend to know as much as possible about the viral health status of our community.  This could include pre-testing of students and staff before arrival in August, for both infection and post-infection immunity through antibodies.  It will include a robust testing system during the school year, using Purdue’s own BSL-2 level laboratory for fast results.  Anyone showing symptoms will be tested promptly, and quarantined if positive, in space we will set aside for that purpose.

We expect to be able to trace proximate and/or frequent contacts of those who test positive.  Contacts in the vulnerable categories will be asked to self-quarantine for the recommended period, currently 14 days.  Those in the young, least vulnerable group will be tested, quarantined if positive, or checked regularly for symptoms if negative for both antibodies and the virus.

Keep in mind, these test kits are expensive, and the process is quite invasive. Will students actually report for regular testing? Will they actually stay quarantined. Students are not always responsible for these sorts of matters. Several of my students were studying together for final exams, social-distancing be damned.  And what if a student refuses to undergo regular testing? Or forgets?

And what about contact tracing? Imagine that you are a student, and some person calls you, and asks you to list everyone you’ve been in contact with the past two weeks. What if students refuse to talk to the tracers? What if students don’t pick up their phones? (Students do not pick up their phones). What if they do not install the app on their phones? What if their answers are incomplete? For example, a student may have been engaging in illicit or embarrassing conduct. They may not want to disclose their contacts. There are so many reasons why students may be uncomfortable sharing that information. And I am not confident that structures can be put in place to maintain confidentiality. (Wait until those apps are hacked.)

What about contract tracers at state institutions? Students are taught not to talk to the police. Contract tracers are state officials. Washington has indicated that talking with contact tracers is voluntary. But could a University in Washington remove a student from campus who refuses to talk to a contact tracer?

And what happens if a professor learns that one of his students tested positive. At that point, the entire class goes virtual. I think professors–who tend to be older and more at risk–will fiercely resist starting and stopping a semester, based solely on the unpredictable behavior of students.

Universities usually make changes at a glacial pace. Committees meet and discuss issues for months and months. And invariably, any new policy only slightly deviate from former policies. I am not confident that educational institutions can create public health infrastructures in the span of months. I am confident that attempting to create this infrastructure will be extremely expensive, and divert much needed funds from educational missions. Any tuition increase to cover these sorts of unpopular measures will be very unpopular. I am also confident these efforts will distract professors from their primary mission: improving educational opportunities for students. I do not have answers about the correct way forward.

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Last week, I flagged SCOTUSBlog’s series of posts about access to the Supreme Court. Today, Amy Howe offers several recommendations of how to improve the process. I whole-heartedly concur.

First, Amy urges the Court to continue live-streaming arguments next term. She writes that the parade of horribles we were warned about simply has not happened:

None of the evils that are often cited as reasons not to allow live-streaming surfaced during the first week of live audio. There was no grandstanding by either the lawyers or the justices, and with the exception of an apparent errant toilet flush (which is not likely to occur again, and in any event obviously would not be a problem when arguments return to the courtroom), everything went off more or less without a hitch on the technological side. Having seen first-hand that live-streaming is not only possible but in fact a big success, the Supreme Court should not return to its pre-pandemic status quo, in which audio was never available in real time, and normally was not available until the Friday after an argument.

Amy is exactly right. No one grandstanded. The media and press commented on the case, but in a reasonable fashion. I feared that President Trump would live tweet the tax return cases. Not a peep. The only error, a flushed toilet, came from one of the Justices. I do worry about the risks that protestors may try to disrupt the live-streamed sessions. Justice Kavanaugh will be personally familiar with this problem. But the benefits of live-streaming have now been well-established.

Second, Amy urges the Court to offer more seats in the Chamber to the public:

The court should increase the number of seats set aside specifically for members of the public. Having only 50 of 439 seats in the courtroom – that is, just over 11 percent – in that category is, to put it diplomatically, less than optimal. More of the 186 “reserved” seats in the courtroom that are overseen by the Marshal’s Office at the Supreme Court should be allocated to the public as a general matter. Some of these could come from among the seats that are currently reserved for the guests of lawyers who are being admitted to the Supreme Court bar.

I agree. The Court reserves far too many seats for special guests. The process of obtaining such tickets is shrouded in secrecy–generally, you have to know someone! Let the public into the Court.

Third, the Court should move bar admissions to non-argument days.

Being admitted to the bar in open court is a lovely tradition, and it is nice for lawyers to be able to bring a family member to witness the occasion. However, when a large number of lawyers are admitted on “big” argument days, allowing them to bring guests reduces the number of seats that might otherwise be available to the public – an especially undesirable outcome when many people are sleeping out on the sidewalk overnight in the hope of snagging a seat in the courtroom.

I don’t know if there are enough non-argument days on the calendar to handle all of the bar admissions. The Court can hold special afternoon sessions, after the arguments conclude, to handle admissions. Really, only the Chief needs to be present. I discussed that position here:

Second, admission ceremonies could be scheduled separately for a special afternoon session on argument days. That is, arguments would be held at 10:00 a.m. And at 1:00 p.m. the Court would reconvene, and admissions motions would be considered. This additional session would no doubt create a constraint on Court resources. At a minimum, the Chief Justice would have to attend. But this alternate proceeding could free up between 50 and 100 seats in the visitors gallery for each case, depending on how many admissions there are. This change would allow more people from the public to attend, and more attorneys would be guaranteed admission with their guests. It is certainly a pleasant surprise that attorneys who are seeking admission can, by chance, watch a high-profile case. But that novelty is vastly outweighed by the need for those with a particularized interest to attend.

Fourth, Amy suggests that guests for bar admissions should have to give up their seats after admission ceremony concludes, and the oral argument begins.

The court could address this problem in a couple of different ways, which are not mutually exclusive. First, it could allow lawyers who are being admitted to the Supreme Court bar to bring guests, but then ask the guests to leave the courtroom after bar admissions so that members of the public can take their places.

I really like this idea. The bar admission ceremony takes a few moments. Dozens of seats will open up as arguments begin. The Court’s staff will have to quietly move people in and out of the chamber. It can be done.

Fifth, Amy also suggests that any available empty seats, including those in the press section, should be filled.

More seats could be found for members of the public elsewhere in the courtroom as well. For example, spectators are rarely seated in the first row of the public section; doing so would provide roughly an additional 10 seats. If there are still people waiting in line for seats as 10 a.m. approaches, the court could also allow members of the public to fill other empty seats, such as the press seats in the hallway on the side of the courtroom.

Sixth, Amy suggests that the Court can open an over-flow room.

And on days when seats are in high demand, the court could create an overflow room – as it does for lawyers who do not get seats in the bar section – that would allow members of the public who do not get into the courtroom to listen to a live feed of oral arguments elsewhere in the building.

I really, really like this idea. There are several large banquet rooms in the wings. Everyone who is on line could be allowed to sit, quietly, and listen to the arguments. It is not the same as being in the Chamber live, but the Court already creates the experience for the bar lounge. Also, seating in the banquet room allows the PR benefit of walking down the steps. In addition, opening up additional rooms will help with social-distancing. This idea is excellent.

Seventh, Amy asks the Court to ban line-standers.

On the demand end, the court should start by banning line-standers, as it has in the bar line. Just as access to the courtroom shouldn’t depend on whether you know someone at the court who can get you a reserved seat, it also shouldn’t hinge on whether you have the funds to pay someone to stand in line for you, at a cost of $40 per hour or more.

This idea only works if the Supreme Court police are willing to police the line. They have to resolve disputes if someone flags a paid line-waiter. I am skeptical the general public will be deterred by this ban. Indeed, prominent attorneys cut me on the bar line.

Eighth, the Court could hand out tickets or wristband earlier in the process.

The court has traditionally been reluctant to get involved in policing the public line: Officers normally don’t do much beyond handing out tickets at around 7:30 a.m. But other small steps by the officers could help to increase the perception of fairness – for example, handing out tickets or wristbands much earlier in the process (a step that many lawyers in the bar line might also welcome) to ensure that later arrivals don’t join the line and take a spot that should belong to someone who has spent many hours waiting.

I’m not optimistic about this recommendation. People will simply camp out for the wristbands or tickets. Queues form whenever there is a limited supply available for distribution. The only solution is a random distribution.

Ninth, Amy flags my lottery idea:

Blackman has recommended a much more dramatic step: Scrap the line system altogether in favor of a lottery. Such a system would not only address some of the social-distancing issues that the court is likely to face for many months to come, but (even if it included only some of the public seats) it would also give some members of the public more certainty – especially if they plan to travel to the court from out of town – that they will actually get a seat.

The Court should eliminate all requirements to wait on the sidewalk for tickets, wristbands, or any other mcguffin. A lottery, that people can enter in advance, is a safe and fair way to expand access to the Court.

I hope the Supreme Court takes these recommendations seriously. The Court is a conservative institution, and favors glacial change. But the Coronavirus has forced the Court to make certain changes, and those changes have built confidence in expanding access to the Court. I am happy to help in this process any way I can.

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Have you ever wondered what it’s like to trip on LSD, magic mushrooms, peyote, or other hallucinogenic drugs? Have you ever wondered what it’s like for Sting to trip?

The new documentary Have a Good Trip: Adventures in Psychedelics, features the former Police frontman, Sarah Silverman, Carrie Fisher, Anthony Bourdain, Ben Stiller, and many other creative people talking about their good, bad, and ugly experiences with drugs such as LSD, magic mushrooms, peyote, and MDMA.

The film is hosted by Nick Offerman and includes commentary by UCLA’s Charles Grob, one of the world’s leading experts on growing efforts to use hallucinogens in therapeutic settings.

Director Donick Cary won an Emmy for his work as a writer on Late Night Night with David Letterman and has produced and written for shows such as The Simpsons, Silicon Valley, and Parks and Recreation.

In a wide-ranging conversation with Nick Gillespie, he talks about his own history with psychedelics and the need for serious, open, and well-informed conversations about substances that are routinely described as life-changing.

Have a Good Trip is a fascinating look at the past, present, and future of mind-expanding drugs and anyone interested in—or worried by—the neo-psychedelic movement can watch it now on Netflix.

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The U.S. Supreme Court heard oral arguments yesterday in Trump v. Mazars, a case which asks whether the House Committee on Oversight and Reform overstepped its legal authority in 2019 when it subpoenaed Mazars USA, Donald Trump’s longtime accounting firm, demanding eight years of financial records pertaining to Trump and several of his business entities.

In Barenblatt v. United States (1959), the Supreme Court held that “Congress may only investigate into those areas in which it may potentially legislate or appropriate.” In Eastland v. U.S. Servicemen’s Fund (1975), the Court said that the congressional subpoena power may only be used for a “legitimate legislative purpose.”

The House Committee on Oversight and Reform told the Supreme Court that its efforts to acquire Trump’s tax records easily satisfied the “legitimate legislative purpose” test. “The election of a President who has decided to maintain his ties to a broad array of business ventures raises questions about the adequacy of existing legislation concerning financial disclosures, government contracts with federal officeholders, and government ethics, more generally,” the committee argued. “Whether new legislation on these subjects is needed is a natural subject of Congressional inquiry.”

Trump and his lawyers told the Court that if the committee prevailed in this case, future congressional committees would be empowered to go on countless fishing expeditions into the private records of future presidents. “A congressional committee merely needs to say that it is considering legislation requiring presidents to disclose [financial] information of this type,” Trump’s legal team argued. “Given the temptation to investigate the personal lives of political rivals, legislative subpoenas targeting the private affairs of presidents will become routine in times of divided government.”

The Trump team’s warning seemed to resonate with several members of the Court during the oral arguments. Perhaps most worrisome for the Democratic-controlled House Committee on Oversight and Reform, the warning seemed to find a particularly receptive audience in Justice Stephen Breyer, a Democratic appointee and senior figure on the Court’s so-called liberal wing.

“The subpoenas that I’ve seen,” Breyer told Douglas Letter, the general counsel for the House of Representatives, “apply to 15 Trump-affiliated entities. They ask for all documents related to opening of accounts, due diligence, closing, requests for information by other parties, et cetera. Now that’s a lot of information, and some of it’s pretty vague.” And “my problem” with all of that, Breyer continued, is “the fact that what I hold today [in this case] will also apply to a future Senator McCarthy asking a future Franklin Roosevelt or Harry Truman exactly the same questions.” That, Breyer told the House’s lawyer, “bothers me.”

These statements do not necessarily mean that Breyer is going to rule in favor of Trump in this case. But they do suggest that the liberal justice is at least weighing the idea that Trump should win this round in order to protect the office of the presidency the next time around.

A decision in Trump v. Mazars is expected by June.

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