Category: reason

Did Justice Alito lose the majority in Ramos?

On Tuesday, I pondered about five unanswered questions from Ramos. Linda Greenhouse poses another lingering question: did Justice Alito lose the majority? She writes:

At 26 pages, Justice Samuel Alito’s dissenting opinion, which the chief justice and Justice Elena Kagan joined, was the same length as Justice Gorsuch’s opinion. I have a feeling that it started out as the majority opinion, with Justices Ginsburg and Breyer onboard. Lacking proof, I’ll leave it to future Supreme Court historians to validate or debunk that theory.

Greenhouse’s theory could explain the final breakdown. Consider my idle speculation.

Initially, Alito wrote the majority for Roberts, Ginsburg, Breyer, and Kagan. It focused entirely on stare decisis, and had no occasion to discuss the original meaning of the Sixth Amendment. This opinion would have resembled Justice Alito’s majority opinion in Gamble. That case declined to overrule the longstanding dual-sovereignty doctrine. Ramos would have a followed a similar path.

In this alternate scenario, there were four separate solo dissents. Thomas dissented on Privileges or Immunities grounds. Kavanaugh dissented; he advanced his own perspective of stare decisis. Sotomayor dissented; she argued stare decsisis was weaker in the criminal procedure context and Louisiana’s rule was racist. And Gorsuch wrote his own idiosyncratic dissent: Apodaca wasn’t a precedent in the first place.

But at some point, Ginsburg and Breyer realized they could join Gorsuch’s quirky opinion, without having to commit to anything significant. Sure, there was some language that would make Justice Breyer wince. But so what. It was all dicta in a plurality opinion joined by only three members. It would have no precedential effect going forward.

Functionalist, “muddy yardsticks” can quickly be restored. Consider Justice Breyer’s decision today in County of Maui v. Hawaii Wildlife Fund. He offered a seven-factor balancing test, none which was dispositive, and there may be more factors.

But there are too many potentially relevant factors applicable to factually different cases for this Courtnow to use more specific language. Consider, for example,just some of the factors that may prove relevant (depending upon the circumstances of a particular case): (1) transit time, (2) distance traveled, (3) the nature of the materialthrough which the pollutant travels, (4) the extent to which the pollutant is diluted or chemically changed as it travels, (5)the amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source, (6) the manner by or area in which the pollutantenters the navigable waters, (7) the degree to which the pollution (at that point) has maintained its specific identity. Time and distance will be the most important factors in most cases, but not necessarily every case.

That formalism didn’t last long.

Most importantly for Ginsburg and Breyer: Apodaca would be overruled. Alas, Kagan continued to ride the stare decisis train.

At that point, it made sense for Justice Sotomayor to join some of Gorsuch’s opinion to help it get to five votes, and be a majority. Same for Justice Kavanaugh. But they would not go along with all of it.

Now in dissent, Alito added Part IV-D, which attacked Kagan’s dissent in Knick and Breyer’s dissent in Franchise Tax Board. He no longer had to play nice to form a majority. And then Kagan dissented from that section.

Greenhouse’s theory could help explain the bizarre breakdown. We’ll find out when the papers become public. I hope I am still alive and blogging at that point.

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Supreme Court Upholds Broad Reading of Clean Water Act

Today the Supreme Court gave environmental groups a surprise victory in Maui v. Hawaii Wildlife Fund.  Writing for a six-justice majority, Justice Breyer explained that the Clean Water Act requirement of a permit for discharging pollutants into waters of the United States applies not only to direct discharges from point sources, but also the “functional equivalent” of direct discharges. As readers may recall, environmental groups had tried to settle the Maui case due to their fear of an adverse ruling limiting the CWA’s permitting requirements. Instead they got about as good a results as they could have hoped for.

Justice Breyer’s opinion was joined by the Chief Justice, and Justices Ginsburg, Sotomayor, Kagan, and Kavanaugh. Justice Kavanaugh also wrote a separate concurring opinion. Justices Alito and Thomas authored dissents, the latter of which was joined by Justice Gorsuch.

Justice Breyer’s opinion begins with a decent summary of the case and holding. So here it is:

The Clean Water Act forbids the “addition” of any pollutant from a “point source” to “navigable waters” without the appropriate permit from the Environmental Protection Agency (EPA). Federal Water Pollution Control Act, §§301(a), 502(12)(A), as amended by the Federal Water Pollution Control Act Amendments of 1972 (Clean Water Act) §2, 86 Stat. 844, 886, 33 U. S. C. §§1311(a), 1362(12)(A). The question presented here is whether the Act “requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source,” here, “groundwater.” Pet. for Cert. i. Suppose, for example, that a sewage treatment plant discharges polluted water
into the ground where it mixes with groundwater, which, in turn, flows into a navigable river, or perhaps the ocean. Must the plant’s owner seek an EPA permit before emitting the pollutant? We conclude that the statutory provisions at issue require a permit if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters.

In one sense, Justice Breyer’s opinion may be seen as a “Goldilocks” formulation in that there was broad agreement that the U.S. Court of Appeals for the Ninth Circuit had articulated an overbroad conception of CWA jurisdiction, but that the alternatives offered by the petitioners (and the Trump Administration) were too narrow. By roping in the “functional equivalent” of direct discharges from point sources, the Court ensured the CWA reaches many identifiable sources of water pollution and makes it more difficult for potentially regulated firms to evade the Act’s permitting requirements through strategic behavior.

Although this precise formulation was not offered in any of the party briefs, Justice Breyer repeatedly raised the “functional equivalent” formulation as a potential way to resolve the case at oral argument.

JUSTICE BREYER: I was looking for something, which I’m not wedded to the one I
said, but I’m looking for something that does give the EPA some leeway on this but doesn’t go as far as what traceability and causation do, which seem to say the sky’s the limit. And . . . that’s what I’m looking for. . . .

In his opinion Justice Breyer acknowledged that this test is a bit fuzzier than the alternatives proposed by the parties, but nonetheless concluded that inclusion of the “functional equivalent of a direct discharge” “captures, in broad terms, those circumstances in which Congress intended to require a federal permit.” Further, Justice Breyer explained, regulatory and judicial guidance would help clarify the precise scope of the term over time. As he wrote near the close of his opinion:

In sum, we recognize that a more absolute position, such as the means-of-delivery test or that of the Government or that of the Ninth Circuit, may be easier to administer. But, as we have said, those positions have consequences that are inconsistent with major congressional objectives, as revealed by the statute’s language, structure, and purposes. We consequently understand the permitting requirement, §301, as applicable to a discharge (from a point source) of pollutants that reach navigable waters after traveling through groundwater if that discharge is the functional equivalent of a direct discharge from the point source into navigable waters.

One other note about Breyer’s opinion is that the Court did not engage in any real Chevron analysis. Although the precise meaning of the relevant statutory language was at least somewhat ambiguous as to its precise application, he noted that he government did not ask for Chevron deference, and there was thus no reason to give it. From his opinion:

Neither the Solicitor General nor any party has asked us to give what the Court has referred to as Chevron deference to EPA’s interpretation of the statute. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 844 (1984). Even so, we often pay particular attention to an agency’s views in light of the agency’s expertise in a given area, its knowledge gained through practical experience, and its familiarity with the interpretive demands of administrative need. See United States v. Mead Corp., 533 U. S. 218, 234–235 (2001); Skidmore v. Swift & Co., 323 U. S. 134, 139–140 (1944). But here, as we have explained, to follow EPA’s reading would open a loophole allowing easy evasion of the statutory provision’s basic purposes. Such an interpretation is neither persuasive nor reasonable.

Justice Kavanaugh wrote a separate concurrence to emphasize his view that the Court’s Maui decision is consistent with Justice Scalia’s interpretation of the CWA in Rapanos v. United States, and that any “vagueness” in the meaning of the relevant statutory langauge is a function of Congress’s formulation, not the Court’s opinion. Wrote Kavanaugh, “The Court’s opinion seeks to translate the vague statutory text into more concrete guidance.”  Kavanaugh’s emphasis on Scalia’s Rapanos opinion is potentially important, as it seems to indicate that Kavanaugh’s embrace of a broad understanding of what constitutes a “discharge from” a point source does not require an equally broad conception of what constitutes “waters of the United States.” In other words, joining Justice Breyer here hardly precludes Kavanaugh from voting to uphold the Trump Administration’s WOTUS rule.

Justice Thomas, joined by Justice Gorsuch, stressing the statute’s text. According to Thomas, the CWA prohibits the discharge of pollutants from point sources, not from what the EPA or the courts might believe are the “functional equivalent” of such sources. The latter, Justice Thomas argued, is necessarily derived from “an open-ended inquiry into congressional intent and practical considerations,” whereas he “would adhere to the text.” As Justice Thomas concluded:

The best reading of the statute is that a “discharge” is the release of pollutants directly from a point source to navigable waters. The application of this interpretation to the undisputed facts of this case makes a remand unnecessary. Petitioner operates a wastewater treatment facility and injects treated wastewater into four underground injection control wells. All parties agree that the wastewater enters groundwater from the wells and does not directly enter navigable waters. Based on these undisputed facts, there is no “discharge,”

Interestingly enough, Justice Thomas agreed with the majority that Chevron deference was not due the agency’s interpretation, and took the opportunity to repeat his criticism of the doctrine.

I agree that the EPA’s interpretation is not entitled to deference for at least two reasons: No party requests it, and the EPA’s reading is not the best one. . . . I add only that deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), likely conflicts with the Vesting Clauses of the Constitution.

Justice Alito also wrote a separate dissent urging a narrower textual interpretation of the statute. While the two dissents both rejected the broad reading offered by the majority, they differed on some particulars. Among other things, the two opinions disagree on the import of the words “any” and “addition,” and (in Justice Alito’s view) this could lead to Justice Thomas’s interpretation excluding some discharges that should be covered under the Act.

The Maui case is important, but it’s hardly the last word on CWA jurisdiction. The Court remanded the case back to the Ninth Circuit, and there are several cases in various stages of litigation that will now have to apply the Court’s new test.  At the same time, litigation over the proper definition of “waters of the United States” is ongoing, so it’s likely the Supreme Court will revisit the scope of CWA regulation in the not-too-distant future.

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Supreme Court Upholds Broad Reading of Clean Water Act

Today the Supreme Court gave environmental groups a surprise victory in Maui v. Hawaii Wildlife Fund.  Writing for a six-justice majority, Justice Breyer explained that the Clean Water Act requirement of a permit for discharging pollutants into waters of the United States applies not only to direct discharges from point sources, but also the “functional equivalent” of direct discharges. As readers may recall, environmental groups had tried to settle the Maui case due to their fear of an adverse ruling limiting the CWA’s permitting requirements. Instead they got about as good a results as they could have hoped for.

Justice Breyer’s opinion was joined by the Chief Justice, and Justices Ginsburg, Sotomayor, Kagan, and Kavanaugh. Justice Kavanaugh also wrote a separate concurring opinion. Justices Alito and Thomas authored dissents, the latter of which was joined by Justice Gorsuch.

Justice Breyer’s opinion begins with a decent summary of the case and holding. So here it is:

The Clean Water Act forbids the “addition” of any pollutant from a “point source” to “navigable waters” without the appropriate permit from the Environmental Protection Agency (EPA). Federal Water Pollution Control Act, §§301(a), 502(12)(A), as amended by the Federal Water Pollution Control Act Amendments of 1972 (Clean Water Act) §2, 86 Stat. 844, 886, 33 U. S. C. §§1311(a), 1362(12)(A). The question presented here is whether the Act “requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source,” here, “groundwater.” Pet. for Cert. i. Suppose, for example, that a sewage treatment plant discharges polluted water
into the ground where it mixes with groundwater, which, in turn, flows into a navigable river, or perhaps the ocean. Must the plant’s owner seek an EPA permit before emitting the pollutant? We conclude that the statutory provisions at issue require a permit if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters.

In one sense, Justice Breyer’s opinion may be seen as a “Goldilocks” formulation in that there was broad agreement that the U.S. Court of Appeals for the Ninth Circuit had articulated an overbroad conception of CWA jurisdiction, but that the alternatives offered by the petitioners (and the Trump Administration) were too narrow. By roping in the “functional equivalent” of direct discharges from point sources, the Court ensured the CWA reaches many identifiable sources of water pollution and makes it more difficult for potentially regulated firms to evade the Act’s permitting requirements through strategic behavior.

Although this precise formulation was not offered in any of the party briefs, Justice Breyer repeatedly raised the “functional equivalent” formulation as a potential way to resolve the case at oral argument.

JUSTICE BREYER: I was looking for something, which I’m not wedded to the one I
said, but I’m looking for something that does give the EPA some leeway on this but doesn’t go as far as what traceability and causation do, which seem to say the sky’s the limit. And . . . that’s what I’m looking for. . . .

In his opinion Justice Breyer acknowledged that this test is a bit fuzzier than the alternatives proposed by the parties, but nonetheless concluded that inclusion of the “functional equivalent of a direct discharge” “captures, in broad terms, those circumstances in which Congress intended to require a federal permit.” Further, Justice Breyer explained, regulatory and judicial guidance would help clarify the precise scope of the term over time. As he wrote near the close of his opinion:

In sum, we recognize that a more absolute position, such as the means-of-delivery test or that of the Government or that of the Ninth Circuit, may be easier to administer. But, as we have said, those positions have consequences that are inconsistent with major congressional objectives, as revealed by the statute’s language, structure, and purposes. We consequently understand the permitting requirement, §301, as applicable to a discharge (from a point source) of pollutants that reach navigable waters after traveling through groundwater if that discharge is the functional equivalent of a direct discharge from the point source into navigable waters.

One other note about Breyer’s opinion is that the Court did not engage in any real Chevron analysis. Although the precise meaning of the relevant statutory language was at least somewhat ambiguous as to its precise application, he noted that he government did not ask for Chevron deference, and there was thus no reason to give it. From his opinion:

Neither the Solicitor General nor any party has asked us to give what the Court has referred to as Chevron deference to EPA’s interpretation of the statute. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 844 (1984). Even so, we often pay particular attention to an agency’s views in light of the agency’s expertise in a given area, its knowledge gained through practical experience, and its familiarity with the interpretive demands of administrative need. See United States v. Mead Corp., 533 U. S. 218, 234–235 (2001); Skidmore v. Swift & Co., 323 U. S. 134, 139–140 (1944). But here, as we have explained, to follow EPA’s reading would open a loophole allowing easy evasion of the statutory provision’s basic purposes. Such an interpretation is neither persuasive nor reasonable.

Justice Kavanaugh wrote a separate concurrence to emphasize his view that the Court’s Maui decision is consistent with Justice Scalia’s interpretation of the CWA in Rapanos v. United States, and that any “vagueness” in the meaning of the relevant statutory langauge is a function of Congress’s formulation, not the Court’s opinion. Wrote Kavanaugh, “The Court’s opinion seeks to translate the vague statutory text into more concrete guidance.”  Kavanaugh’s emphasis on Scalia’s Rapanos opinion is potentially important, as it seems to indicate that Kavanaugh’s embrace of a broad understanding of what constitutes a “discharge from” a point source does not require an equally broad conception of what constitutes “waters of the United States.” In other words, joining Justice Breyer here hardly precludes Kavanaugh from voting to uphold the Trump Administration’s WOTUS rule.

Justice Thomas, joined by Justice Gorsuch, stressing the statute’s text. According to Thomas, the CWA prohibits the discharge of pollutants from point sources, not from what the EPA or the courts might believe are the “functional equivalent” of such sources. The latter, Justice Thomas argued, is necessarily derived from “an open-ended inquiry into congressional intent and practical considerations,” whereas he “would adhere to the text.” As Justice Thomas concluded:

The best reading of the statute is that a “discharge” is the release of pollutants directly from a point source to navigable waters. The application of this interpretation to the undisputed facts of this case makes a remand unnecessary. Petitioner operates a wastewater treatment facility and injects treated wastewater into four underground injection control wells. All parties agree that the wastewater enters groundwater from the wells and does not directly enter navigable waters. Based on these undisputed facts, there is no “discharge,”

Interestingly enough, Justice Thomas agreed with the majority that Chevron deference was not due the agency’s interpretation, and took the opportunity to repeat his criticism of the doctrine.

I agree that the EPA’s interpretation is not entitled to deference for at least two reasons: No party requests it, and the EPA’s reading is not the best one. . . . I add only that deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), likely conflicts with the Vesting Clauses of the Constitution.

Justice Alito also wrote a separate dissent urging a narrower textual interpretation of the statute. While the two dissents both rejected the broad reading offered by the majority, they differed on some particulars. Among other things, the two opinions disagree on the import of the words “any” and “addition,” and (in Justice Alito’s view) this could lead to Justice Thomas’s interpretation excluding some discharges that should be covered under the Act.

The Maui case is important, but it’s hardly the last word on CWA jurisdiction. The Court remanded the case back to the Ninth Circuit, and there are several cases in various stages of litigation that will now have to apply the Court’s new test.  At the same time, litigation over the proper definition of “waters of the United States” is ongoing, so it’s likely the Supreme Court will revisit the scope of CWA regulation in the not-too-distant future.

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Miami Has Recorded No Homicides in 6 Weeks Despite Deliberate Decline in Police Enforcement

Fears of COVID-19 infection may have emptied the streets of Miami, but criminals are not taking advantage of the situation. Miami Police Chief Jorge Colina says that not only has violent crime plunged in the city, but Miami has not reported a homicide in six weeks. That hasn’t happened since 1964.

Colina himself tested positive for COVID-19 last week and is at home recovering. The New York Times reports (you’ll have to scroll down for the story) that 20 of Miami’s 1,400 officers are sick. That’s actually a pretty low infection rate when compared to a place like New York City, where at least 1,500 NYPD officers have become infected out of 36,000 officers. Earlier in April, one out of six NYPD officers was out sick.

One difference appears to be that Colina gave his officers very different instructions. He has strongly discouraging Miami police from interacting with people, both for his officers’ safety and the safety of city residents. From the Times:

“I literally told them, ‘I don’t care if we don’t issue a single ticket summons in the month of April,'” he said. “‘I don’t want you to unnecessarily interact with someone if you don’t have to, for your safety and theirs.’ And the amount of people who have been impacted financially is absolutely something that we should be mindful of.”

Meanwhile, the NYPD appears to be out in force continuing heavy-duty policing of low-level “quality-of-life” crimes even as COVID-19 spreads through the department and the city’s jails. NYPD Commissioner Dermot Shea has declared that he, unlike Colina, will not be reducing enforcement.

Perhaps he should. Miami’s de-policing decision is not leading to anarchy. Colina says the city is seeing an uptick in car break-ins and that he worries about domestic violence incidents going unreported. Nevertheless, crime overall in Miami is down (and has been trending downward for years), and the community isn’t any less safe as a result of his officers showing restraint.

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Georgia Is Right To Reopen, But Will That Actually Restart Its Economy?

The societal lockdown due to the novel coronavirus has shown that the U.S. economy definitely has a kill switch. As Georgia begins to lift its restrictions on “non-essential” businesses tomorrow, we’re going to find out whether the economy has anything resembling an on switch.

Over the past five weeks, 26.5 million Americans have filed for unemployment, suggesting a real unemployment rate of nearly 21 percent, the highest since 1934. By the first week of April, according to Moody’s Analytics, “U.S. daily output has fallen roughly 29 percent, compared with the first week of March, just before the spate of closures” caused by shelter-in-place orders affecting “8 in 10 U.S. counties.”

If the kill switch was easy to find, it’s going to be tough as hell to restart the economy or even keep it staggering along at its current anemic pace. A new study from economists Jonathan Dingel and Brent Neiman at the University of Chicago find that only about “37 percent of U.S. jobs can plausibly be performed at home,” helping to explain the economic wreckage caused by nearly universal lockdowns. Nearly two-thirds of workers are already out of luck, and that’s before slack demand starts to threaten the bottom lines of companies employing those lucky few who can work from home.

Which brings us to the controversial decision of Georgia Gov. Brian Kemp (R) to reopen parts of his state’s economy. His decision has been criticized by both medical experts and President Donald Trump, but effective tomorrow,

Employees at “gyms, fitness centers, bowling alleys, body art studios,” as well as “barbers, cosmetologists, hair designers, nail care artists, estheticians, their respective schools & massage therapists,” will be allowed to return to work…but will have to operate under restrictions.

And come Monday, “sit-down restaurants, theaters, and private social clubs will be allowed to reopen,” also subject to social-distancing and other restrictions.

This is, I think, not simply an eminently defensible decision from a libertarian position, but a good one. Without forcing anyone to do anything they don’t want to, it transfers power to individual businesses, workers, and residents and gives them more choices to make their own decisions. Some businesses in Georgia will reopen and others won’t. Hospitals and other treatment centers have had time and experience to prepare for crushes that have mostly failed to come to pass, in no small part due to lockdown orders. In late March, for instance, Gov. Andrew Cuomo said that his state of New York, the epicenter of the pandemic in the United Stats, would need as many as 40,000 ventilators while having only 12,000 on hand. By April 17, reports National Review‘s Kyle Smith, Cuomo said he “has so many ventilators he is giving them away: On April 15, he said he was sending 100 of them to Michigan and 50 to Maryland. On April 16, he announced he was sending 100 to New Jersey.”

The rush to mandatory lockdowns—as opposed to calls for voluntary forms of social distancing and other measures to reduce the rate and spread of infection—that took place a little more than a month ago obscured serious discussions about their efficacy. “Our historical experience with mandatory quarantines and mass quarantines and cordons is just not good, it’s not effective,” a senior scholar at Johns Hopkins University told STAT just before San Francisco announced its early shelter-in-place order in mid-March. If and when Georgia, which has a relatively low death rate of 8 per 100,000 residents, or other states that start to reopen their economies are hit by waves of new infections that require hospitalization, they will be in a position to respond.

But even as Georgia moves to lift restrictions on “non-essential” businesses tomorrow, it’s unclear how employers, employees, and customers are likely to act. The example of movie theaters illustrates the difficult road ahead. Variety reports that “exhibition insiders stress that it would be nearly impossible for most major chains to start business back up by next week.” That’s because they have been shuttered for more than a month, necessitating cleaning, prep, and retraining of workers. Venues will have to abide by rules limiting gathering to 10 or fewer people while observing social-distancing rules that will limit the ability of theaters to earn back basic operating expenses. And there’s also a question of what movies will be shown, since most studios have themselves shut down or gone to a skeleton crew.

Hollywood studios aren’t releasing new movies for at least a month, when Universal’s comedy The King of Staten Island opens on June 19 and Warner Bros.’ sci-fi thriller Tenet debuts on July 17. Almost all other films scheduled to release this summer have been shelved or postponed, except for Disney’s live-action Mulan on July 24 and Warner Bros.’ comic book adventure Wonder Woman 1984 on Aug. 14. That means even if exhibitors are able to turn the lights back on in some venues, there’s not a lot of compelling product to offer. They would likely be forced to screen library titles and a few lower-budget indies.

Even more daunting is the unsettled issue of legal liability. It’s unclear whether theaters (and other businesses) will be held responsible for illnesses claimed by either customers or employees.

Majorities of Americans say they will not feel comfortable eating out, going to malls, museums, concerts, and even church services for at least three months. Those attitudes are likely to change dramatically if and when deaths abate or surge, or when a vaccine is announced. But in the near term, they suggest that even when a state or city lifts its bans, the economy may well stay dormant for a long time to come. Although the public-health dimension of the coronavirus pandemic has dominated the discussion so far, as time goes on, what analysts at The Foundation for Research on Equal Opportunity call “the severe human cost of a prolonged economic shutdown” will come to occupy more and more of our attention.

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Miami Has Recorded No Homicides in 6 Weeks Despite Deliberate Decline in Police Enforcement

Fears of COVID-19 infection may have emptied the streets of Miami, but criminals are not taking advantage of the situation. Miami Police Chief Jorge Colina says that not only has violent crime plunged in the city, but Miami has not reported a homicide in six weeks. That hasn’t happened since 1964.

Colina himself tested positive for COVID-19 last week and is at home recovering. The New York Times reports (you’ll have to scroll down for the story) that 20 of Miami’s 1,400 officers are sick. That’s actually a pretty low infection rate when compared to a place like New York City, where at least 1,500 NYPD officers have become infected out of 36,000 officers. Earlier in April, one out of six NYPD officers was out sick.

One difference appears to be that Colina gave his officers very different instructions. He has strongly discouraging Miami police from interacting with people, both for his officers’ safety and the safety of city residents. From the Times:

“I literally told them, ‘I don’t care if we don’t issue a single ticket summons in the month of April,'” he said. “‘I don’t want you to unnecessarily interact with someone if you don’t have to, for your safety and theirs.’ And the amount of people who have been impacted financially is absolutely something that we should be mindful of.”

Meanwhile, the NYPD appears to be out in force continuing heavy-duty policing of low-level “quality-of-life” crimes even as COVID-19 spreads through the department and the city’s jails. NYPD Commissioner Dermot Shea has declared that he, unlike Colina, will not be reducing enforcement.

Perhaps he should. Miami’s de-policing decision is not leading to anarchy. Colina says the city is seeing an uptick in car break-ins and that he worries about domestic violence incidents going unreported. Nevertheless, crime overall in Miami is down (and has been trending downward for years), and the community isn’t any less safe as a result of his officers showing restraint.

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Georgia Is Right To Reopen, But Will That Actually Restart Its Economy?

The societal lockdown due to the novel coronavirus has shown that the U.S. economy definitely has a kill switch. As Georgia begins to lift its restrictions on “non-essential” businesses tomorrow, we’re going to find out whether the economy has anything resembling an on switch.

Over the past five weeks, 26.5 million Americans have filed for unemployment, suggesting a real unemployment rate of nearly 21 percent, the highest since 1934. By the first week of April, according to Moody’s Analytics, “U.S. daily output has fallen roughly 29 percent, compared with the first week of March, just before the spate of closures” caused by shelter-in-place orders affecting “8 in 10 U.S. counties.”

If the kill switch was easy to find, it’s going to be tough as hell to restart the economy or even keep it staggering along at its current anemic pace. A new study from economists Jonathan Dingel and Brent Neiman at the University of Chicago find that only about “37 percent of U.S. jobs can plausibly be performed at home,” helping to explain the economic wreckage caused by nearly universal lockdowns. Nearly two-thirds of workers are already out of luck, and that’s before slack demand starts to threaten the bottom lines of companies employing those lucky few who can work from home.

Which brings us to the controversial decision of Georgia Gov. Brian Kemp (R) to reopen parts of his state’s economy. His decision has been criticized by both medical experts and President Donald Trump, but effective tomorrow,

Employees at “gyms, fitness centers, bowling alleys, body art studios,” as well as “barbers, cosmetologists, hair designers, nail care artists, estheticians, their respective schools & massage therapists,” will be allowed to return to work…but will have to operate under restrictions.

And come Monday, “sit-down restaurants, theaters, and private social clubs will be allowed to reopen,” also subject to social-distancing and other restrictions.

This is, I think, not simply an eminently defensible decision from a libertarian position, but a good one. Without forcing anyone to do anything they don’t want to, it transfers power to individual businesses, workers, and residents and gives them more choices to make their own decisions. Some businesses in Georgia will reopen and others won’t. Hospitals and other treatment centers have had time and experience to prepare for crushes that have mostly failed to come to pass, in no small part due to lockdown orders. In late March, for instance, Gov. Andrew Cuomo said that his state of New York, the epicenter of the pandemic in the United Stats, would need as many as 40,000 ventilators while having only 12,000 on hand. By April 17, reports National Review‘s Kyle Smith, Cuomo said he “has so many ventilators he is giving them away: On April 15, he said he was sending 100 of them to Michigan and 50 to Maryland. On April 16, he announced he was sending 100 to New Jersey.”

The rush to mandatory lockdowns—as opposed to calls for voluntary forms of social distancing and other measures to reduce the rate and spread of infection—that took place a little more than a month ago obscured serious discussions about their efficacy. “Our historical experience with mandatory quarantines and mass quarantines and cordons is just not good, it’s not effective,” a senior scholar at Johns Hopkins University told STAT just before San Francisco announced its early shelter-in-place order in mid-March. If and when Georgia, which has a relatively low death rate of 8 per 100,000 residents, or other states that start to reopen their economies are hit by waves of new infections that require hospitalization, they will be in a position to respond.

But even as Georgia moves to lift restrictions on “non-essential” businesses tomorrow, it’s unclear how employers, employees, and customers are likely to act. The example of movie theaters illustrates the difficult road ahead. Variety reports that “exhibition insiders stress that it would be nearly impossible for most major chains to start business back up by next week.” That’s because they have been shuttered for more than a month, necessitating cleaning, prep, and retraining of workers. Venues will have to abide by rules limiting gathering to 10 or fewer people while observing social-distancing rules that will limit the ability of theaters to earn back basic operating expenses. And there’s also a question of what movies will be shown, since most studios have themselves shut down or gone to a skeleton crew.

Hollywood studios aren’t releasing new movies for at least a month, when Universal’s comedy The King of Staten Island opens on June 19 and Warner Bros.’ sci-fi thriller Tenet debuts on July 17. Almost all other films scheduled to release this summer have been shelved or postponed, except for Disney’s live-action Mulan on July 24 and Warner Bros.’ comic book adventure Wonder Woman 1984 on Aug. 14. That means even if exhibitors are able to turn the lights back on in some venues, there’s not a lot of compelling product to offer. They would likely be forced to screen library titles and a few lower-budget indies.

Even more daunting is the unsettled issue of legal liability. It’s unclear whether theaters (and other businesses) will be held responsible for illnesses claimed by either customers or employees.

Majorities of Americans say they will not feel comfortable eating out, going to malls, museums, concerts, and even church services for at least three months. Those attitudes are likely to change dramatically if and when deaths abate or surge, or when a vaccine is announced. But in the near term, they suggest that even when a state or city lifts its bans, the economy may well stay dormant for a long time to come. Although the public-health dimension of the coronavirus pandemic has dominated the discussion so far, as time goes on, what analysts at The Foundation for Research on Equal Opportunity call “the severe human cost of a prolonged economic shutdown” will come to occupy more and more of our attention.

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Trump Changes Course on Reopening the Economy After Georgia Governor Tries To Follow His Lead

Last week, President Donald Trump was calling for Americans living under shelter-in-place orders to “liberate” their states. Now, he’s condemning governors for daring to take his advice. On Wednesday, Trump said it’s “too soon” for reopening plans like the one Georgia plans to implement on Friday.

The about-face provides even more evidence that Trump’s big “liberation” energy was nothing more than a cynical political calculation.

It goes something like this: Push loudly for “reopening the economy”—knowing full well that local leaders, state authorities, and many individuals will resist. When collective reluctance to rush back to normalcy keeps the COVID-19 death toll lower than it otherwise might be, point to the low death toll as evidence that people were overreacting about the virus all along. As we draw closer to the election, Trump can then claim that the country’s economic pain could have been avoided if only everyone had listened to his advice by going out to eat and swarming the beaches months earlier.

But Trump only gets to have his cake and eat it if the U.S. avoids a massive spike in new COVID-19 cases and many more deaths. And that’s less likely to happen if local leaders and business owners aren’t extremely careful about how and when they decide to open things back up.

Doing it too soon or too haphazardly will not only mean more COVID-19 infections but longer and worse economic hardship, unemployment, and unrest (and no boost for Trump come November). A president can sometimes survive mass unemployment or mass deaths, but probably not both.

It’s no wonder Trump is now acting like he never meant for people like Georgia Gov. Brian Kemp to allow movie theaters, gyms, bowling alleys, and a broad swath of other businesses to open back up on Friday.

“Maybe you wait a little bit longer until you get to a phase two,” Trump said during his nightly televised Q&A session on Wednesday. “I’m going to let him make his decision, but I told him, I totally disagree.”

Trump added that “it’s just too soon” for the likes of “spas and the beauty parlors and the barber shops”—the very types of small business owners out protesting shutdown orders— to open up.

Anthony Fauci put it more strongly:

I plead with the American public, with the governors, with the mayors for the people of your responsibility, although I know one has the need to leap frog over things, don’t do that. Do it in a measured way. This is a successful formula. The problem is if we don’t do that, there is a likelihood that we will have a rebound.

“According to some models,” Georgia is “one of the last states that should be reopening,” suggest Washington Post health reporters. “The state has had more than 830 covid-19 deaths” and “tested less than 1 percent of its residents,” with “the limited amount of testing so far shows a high rate of positives at 23 percent.”

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• “I didn’t say that this was going to be worse. I said it was going to be more difficult,” CDC Director Robert Redfield said yesterday, asked to clarify his earlier comment to The Washington Post that “there’s a possibility that the assault of the virus on our nation next winter will actually be even more difficult than the one we just went through.” Trump had tried to claim earlier in the day that Redfield had been “totally misquoted by Fake News.”

• There’s more evidence that COVID-19 was infecting Americans earlier and in greater numbers than initially realized. “By the time New York City confirmed its first case of the coronavirus on March 1, thousands of infections were already silently spreading through the city, a hidden explosion of a disease that many still viewed as a remote threat as the city awaited the first signs of spring,” reports The New York Times.

• Jobless claims again exceed predictions:

• An Illinois judge cleared the way for the Libertarian Party to get on the state’s ballot even though COVID-19 has prevented traditional methods of gathering signatures to petition for obtain ballot access. Brian Doherty explains how.

• Why isn’t Canada seeing the same supermarket shortages as the U.S.?

• Two domestic cats in New York have tested positive for COVID-19.

• The return of drive-ins?

• You’re Wrong About podcast looks at the 1980s Satanic Panic:

• Yesssssss:

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