Category: reason

Politicians Declare Eviction Moratoriums To Combat Coronavirus. Will They Give Up That Power After the Virus Fades?

To prevent the spread of the coronavirus and cushion people from its economic impact, activists and politicians are pushing for moratoriums on evictions and foreclosures, and even for straight suspensions of rent payments.

The thinking is that forcing people to move out of their homes during a global pandemic—when we should all be practicing social distancing—will only make it easier for the virus to spread.

That’s an entirely reasonable concern. But we should also avoid any permanent expansion of government’s power to ignore property rights and private contracts.

Not that those long-term concerns are motivating government officials right now. Instead, they are emphasizing fast, immediate action.

“In this economic crisis, we need to place an immediate moratorium on evictions, foreclosures, and utility shut-offs,” tweeted Sen. Bernie Sanders (I–Vt.) yesterday.

“As we move through the COVID-19 emergency, people must be able to focus on our community’s health—slowing the virus’s spread—and not on economic survival,” said California state Sen. Scott Wiener (D–San Francisco) yesterday, in a statement similarly calling for a nationwide freeze on evictions (of commercial and residential tenants) and foreclosures.

The same day, 24 New York state senators sent a letter to New York State Court of Appeals Chief Judge Janet DiFiore, asking her to suspend all eviction proceedings.

“Many individuals and families who are evicted from their homes will be forced to live in public spaces, in shelters, or in other temporary and often precarious circumstances—limiting their ability to self-quarantine,” the senators wrote, citing as precedent past eviction moratoriums that’d been issued in the wake of 9/11 and Hurricane Sandy.

Signing onto the letter is democratic socialist Sen. Julia Salazar (D/WF–Brooklyn) who has been a major proponent of the public health benefits of an eviction freeze—while also yesterday sending out campaign volunteers to collect signatures for her reelection bid.

The real policy movement so far has been at the local level.

On Tuesday, the San Jose city council advanced a 30-day moratorium on evictions for those who can prove—via pay stubs, employer or doctor notes, etc.—that their health or income has been affected by the coronavirus. The moratorium is expected to be finalized within the next week or two, reports the Mercury News.

San Francisco Mayor London Breed has also committed to using her emergency powers to declare some form of eviction moratorium by the end of this week.

City councilmembers in Los Angeles plan to introduce some sort of moratorium legislation next week. The Los Angeles Times reports that it could apply to all renters in the city.

These are just a few examples. A CityLab article from Wednesday notes these efforts are being considered by cities across the country. Italy, one of the countries most affected by the spread of the coronavirus, has also suspended mortgage payments.

Individual landlords and their trade associations are giving these proposals mixed receptions, acknowledging the public health benefits while also complaining that they are being made to shoulder the entire cost of responding to the epidemic.

Daniel Yukelson, the executive director of Los Angeles’s Apartment Association, criticized that city’s proposed eviction moratorium to the Times, calling it “yet another horrible regulation that would unleash an undeserved and excessive amount of punishment on unsuspecting.” Yukelson said that eviction is a last resort, and landlords have been willing to make accommodations for good renters affected by the virus.

“Rents pay for property taxes, insurance, mortgages, maintenance, and the salaries of building supers and staff,” said the Community Housing Improvement Program (CHIP), an association representing smaller landlords in New York City, in a statement to Reason. “Missing an entire month of revenue would have a devastating effect on their ability to pay their expenses.”

CHIP has asked that any eviction moratorium be coupled with compensation to building owners to cover any financial losses.

At a moment, the public health response is all about slowing the rate of infection through social distancing so that the number of new cases stays within hospitals’ capacity to treat them. Having fewer people being forced to move or show up to crowded courthouses to contest eviction notices would certainly help with that.

Yet landlords are correct in noting that government officials are effectively shifting the economic costs of the coronavirus from renters to them, often with only the vaguest promise of compensation. The fewer landlords that are able to make their mortgage payments because of lost rent only further imperils a financial system that has already proven shaky in response to the coronavirus.

As economist Pierre Lemieux noted on Twitter in response to Italy’s suspension of mortgage payments, that’s not a good thing for governments who will soon need additional funds to cope with the continued fallout from the pandemic.

More worrisome still is the potential for a ratchet effect, whereby any suspension of evictions, while seemingly necessary or at least advisable at this moment, will lead to a permanent expansion of the government’s power to suspend rent or loan payments in the future.

In his book Crisis and Leviathan, economic historian Robert Higgs describes how major crises in the 20th century led to dramatic expansions in the scope of government power that persisted long after each individual crisis has passed.

During a crisis, argued Higgs, government officials are often unable or unwilling to transparently impose the full costs of their crisis-response measures onto the public. They, therefore, look to hide those costs behind coercive policies. Higgs writes:

“Modern democratic governments expand the scope of their effective authority over economic decision-making during crisis because citizens insist they ‘do something,’ and the alternative means of implementing the chosen policies, which is full reliance on pecuniary fiscal and market mechanisms, would reveal the costs of the government’s policies so clearly as to threaten the viability of both the policies and the ruling, somewhat autonomous governments themselves.”

In other words, governments unwilling to pay the market price for soldiers and steel during a war will adopt new powers to forcibly requisition men and materials instead.

This expansion of power, according to Higgs, doesn’t recede once a crisis is over. Rather, it leaves behind a legacy of more government power that can then be used in less extraordinary circumstances. Emergency powers become routine.

Something very similar could happen with eviction moratoriums.

There is no shortage of options governments have to help renters harmed by the coronavirus, and to do so transparently. Cities could give individual tenants subsidies to help pay their rent. They could also subsidize landlords, either through cash or tax breaks, who are losing out on rent because of the pandemic. They could even funnel money to banks to forestall foreclosures on rental properties.

These aren’t ideal free market policies, but in the current context of a global pandemic, they might be advisable public health measures.

Instead, governments are embracing a more drastic expansion of their power to freeze the enforcement of private legal contracts. To cut checks to affected parties would require either new revenue or service cuts, something few politicians want to consider in a time of looming recession.

The vague promises that landlords will be made whole by city governments are not encouraging. If that were true, there’d be no need for eviction moratoriums in the first place.

This is particularly concerning given that some of these moratoriums are being proposed for entire cities and states—and even the entire country—with no concern for whether someone has contracted the disease or lost income because of it.

If politicians are willing to do this now, in response to this current crisis, what would be the argument against returning to these policies the next time there is a (man-made) economic recession?

The immediacy of the coronavirus crisis is creating demands for immediate action. That’s understandable and, in a lot of cases, necessary.

So far, however, it’s been private actors and civil society that have responded best to the current pandemic. Private banks in Europe and the United Kingdom are already giving borrowers more time to pay their mortgages. Surely private actors here in the states can work out similar arrangements.

To rely on coercive government action leaves open the possibility for dangerous expansion of emergency regulatory powers that will be with us long after coronavirus is brought under control.

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Politicians Declare Eviction Moratoriums To Combat Coronavirus. Will They Give Up That Power After the Virus Fades?

To prevent the spread of the coronavirus and cushion people from its economic impact, activists and politicians are pushing for moratoriums on evictions and foreclosures, and even for straight suspensions of rent payments.

The thinking is that forcing people to move out of their homes during a global pandemic—when we should all be practicing social distancing—will only make it easier for the virus to spread.

That’s an entirely reasonable concern. But we should also avoid any permanent expansion of government’s power to ignore property rights and private contracts.

Not that those long-term concerns are motivating government officials right now. Instead, they are emphasizing fast, immediate action.

“In this economic crisis, we need to place an immediate moratorium on evictions, foreclosures, and utility shut-offs,” tweeted Sen. Bernie Sanders (I–Vt.) yesterday.

“As we move through the COVID-19 emergency, people must be able to focus on our community’s health—slowing the virus’s spread—and not on economic survival,” said California state Sen. Scott Wiener (D–San Francisco) yesterday, in a statement similarly calling for a nationwide freeze on evictions (of commercial and residential tenants) and foreclosures.

The same day, 24 New York state senators sent a letter to New York State Court of Appeals Chief Judge Janet DiFiore, asking her to suspend all eviction proceedings.

“Many individuals and families who are evicted from their homes will be forced to live in public spaces, in shelters, or in other temporary and often precarious circumstances—limiting their ability to self-quarantine,” the senators wrote, citing as precedent past eviction moratoriums that’d been issued in the wake of 9/11 and Hurricane Sandy.

Signing onto the letter is democratic socialist Sen. Julia Salazar (D/WF–Brooklyn) who has been a major proponent of the public health benefits of an eviction freeze—while also yesterday sending out campaign volunteers to collect signatures for her reelection bid.

The real policy movement so far has been at the local level.

On Tuesday, the San Jose city council advanced a 30-day moratorium on evictions for those who can prove—via pay stubs, employer or doctor notes, etc.—that their health or income has been affected by the coronavirus. The moratorium is expected to be finalized within the next week or two, reports the Mercury News.

San Francisco Mayor London Breed has also committed to using her emergency powers to declare some form of eviction moratorium by the end of this week.

City councilmembers in Los Angeles plan to introduce some sort of moratorium legislation next week. The Los Angeles Times reports that it could apply to all renters in the city.

These are just a few examples. A CityLab article from Wednesday notes these efforts are being considered by cities across the country. Italy, one of the countries most affected by the spread of the coronavirus, has also suspended mortgage payments.

Individual landlords and their trade associations are giving these proposals mixed receptions, acknowledging the public health benefits while also complaining that they are being made to shoulder the entire cost of responding to the epidemic.

Daniel Yukelson, the executive director of Los Angeles’s Apartment Association, criticized that city’s proposed eviction moratorium to the Times, calling it “yet another horrible regulation that would unleash an undeserved and excessive amount of punishment on unsuspecting.” Yukelson said that eviction is a last resort, and landlords have been willing to make accommodations for good renters affected by the virus.

“Rents pay for property taxes, insurance, mortgages, maintenance, and the salaries of building supers and staff,” said the Community Housing Improvement Program (CHIP), an association representing smaller landlords in New York City, in a statement to Reason. “Missing an entire month of revenue would have a devastating effect on their ability to pay their expenses.”

CHIP has asked that any eviction moratorium be coupled with compensation to building owners to cover any financial losses.

At a moment, the public health response is all about slowing the rate of infection through social distancing so that the number of new cases stays within hospitals’ capacity to treat them. Having fewer people being forced to move or show up to crowded courthouses to contest eviction notices would certainly help with that.

Yet landlords are correct in noting that government officials are effectively shifting the economic costs of the coronavirus from renters to them, often with only the vaguest promise of compensation. The fewer landlords that are able to make their mortgage payments because of lost rent only further imperils a financial system that has already proven shaky in response to the coronavirus.

As economist Pierre Lemieux noted on Twitter in response to Italy’s suspension of mortgage payments, that’s not a good thing for governments who will soon need additional funds to cope with the continued fallout from the pandemic.

More worrisome still is the potential for a ratchet effect, whereby any suspension of evictions, while seemingly necessary or at least advisable at this moment, will lead to a permanent expansion of the government’s power to suspend rent or loan payments in the future.

In his book Crisis and Leviathan, economic historian Robert Higgs describes how major crises in the 20th century led to dramatic expansions in the scope of government power that persisted long after each individual crisis has passed.

During a crisis, argued Higgs, government officials are often unable or unwilling to transparently impose the full costs of their crisis-response measures onto the public. They, therefore, look to hide those costs behind coercive policies. Higgs writes:

“Modern democratic governments expand the scope of their effective authority over economic decision-making during crisis because citizens insist they ‘do something,’ and the alternative means of implementing the chosen policies, which is full reliance on pecuniary fiscal and market mechanisms, would reveal the costs of the government’s policies so clearly as to threaten the viability of both the policies and the ruling, somewhat autonomous governments themselves.”

In other words, governments unwilling to pay the market price for soldiers and steel during a war will adopt new powers to forcibly requisition men and materials instead.

This expansion of power, according to Higgs, doesn’t recede once a crisis is over. Rather, it leaves behind a legacy of more government power that can then be used in less extraordinary circumstances. Emergency powers become routine.

Something very similar could happen with eviction moratoriums.

There is no shortage of options governments have to help renters harmed by the coronavirus, and to do so transparently. Cities could give individual tenants subsidies to help pay their rent. They could also subsidize landlords, either through cash or tax breaks, who are losing out on rent because of the pandemic. They could even funnel money to banks to forestall foreclosures on rental properties.

These aren’t ideal free market policies, but in the current context of a global pandemic, they might be advisable public health measures.

Instead, governments are embracing a more drastic expansion of their power to freeze the enforcement of private legal contracts. To cut checks to affected parties would require either new revenue or service cuts, something few politicians want to consider in a time of looming recession.

The vague promises that landlords will be made whole by city governments are not encouraging. If that were true, there’d be no need for eviction moratoriums in the first place.

This is particularly concerning given that some of these moratoriums are being proposed for entire cities and states—and even the entire country—with no concern for whether someone has contracted the disease or lost income because of it.

If politicians are willing to do this now, in response to this current crisis, what would be the argument against returning to these policies the next time there is a (man-made) economic recession?

The immediacy of the coronavirus crisis is creating demands for immediate action. That’s understandable and, in a lot of cases, necessary.

So far, however, it’s been private actors and civil society that have responded best to the current pandemic. Private banks in Europe and the United Kingdom are already giving borrowers more time to pay their mortgages. Surely private actors here in the states can work out similar arrangements.

To rely on coercive government action leaves open the possibility for dangerous expansion of emergency regulatory powers that will be with us long after coronavirus is brought under control.

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Americans Act To Flatten the Coronavirus Epidemic Curve

The COVID-19 epidemic can no longer be contained. The good news is that Americans, acting as free and responsible individuals, are already making changes in their personal lives that will likely mitigate the effects of the disease.

Since the epidemic is inevitable, the best strategy for coping with it is to flatten the curve—that is, to adopt measures that slow down the rate of infection. The number of people eventually infected will not necessarily be lower, but the goal is spread out the infections over time in order to avoid overtaxing the health care system with a flood of cases.

The Centers for Disease Control and Prevention (CDC) outlined the concept of flattening the curve in a 2007 report on pre-pandemic planning.

Flattening the epidemic curve

Chief among these tactics is social distancing—that is, avoiding crowds, staying home, and keeping six feet between yourself and other people when you do go out in public. All across the country, schools, theaters, sporting events, and other venues where large numbers of people congregate are shutting down for the next month or so.

A March 9 commentary in The Lancet analyzes how mitigation measures will influence the course of the COVID-19 epidemic. The authors point out the advantage of flattening the curve, but they also warn that there could be a resurgence of the epidemic if the changes are relaxed too soon.

Watch out for resurgence

“Individual behaviour will be crucial to control the spread of COVID-19,” they note. “Personal, rather than government action, in western democracies might be the most important issue. Early self-isolation, seeking medical advice remotely unless symptoms are severe, and social distancing are key.”

So wash your hands frequently, bump elbows instead of shaking hands, and binge-watch Netflix at home. Stay well, everyone.

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via IFTTT

Americans Act To Flatten the Coronavirus Epidemic Curve

The COVID-19 epidemic can no longer be contained. The good news is that Americans, acting as free and responsible individuals, are already making changes in their personal lives that will likely mitigate the effects of the disease.

Since the epidemic is inevitable, the best strategy for coping with it is to flatten the curve—that is, to adopt measures that slow down the rate of infection. The number of people eventually infected will not necessarily be lower, but the goal is spread out the infections over time in order to avoid overtaxing the health care system with a flood of cases.

The Centers for Disease Control and Prevention (CDC) outlined the concept of flattening the curve in a 2007 report on pre-pandemic planning.

Flattening the epidemic curve

Chief among these tactics is social distancing—that is, avoiding crowds, staying home, and keeping six feet between yourself and other people when you do go out in public. All across the country, schools, theaters, sporting events, and other venues where large numbers of people congregate are shutting down for the next month or so.

A March 9 commentary in The Lancet analyzes how mitigation measures will influence the course of the COVID-19 epidemic. The authors point out the advantage of flattening the curve, but they also warn that there could be a resurgence of the epidemic if the changes are relaxed too soon.

Watch out for resurgence

“Individual behaviour will be crucial to control the spread of COVID-19,” they note. “Personal, rather than government action, in western democracies might be the most important issue. Early self-isolation, seeking medical advice remotely unless symptoms are severe, and social distancing are key.”

So wash your hands frequently, bump elbows instead of shaking hands, and binge-watch Netflix at home. Stay well, everyone.

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Short Circuit: A Roundup of Recent Federal Court Decisions

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

New on the Short Circuit podcast: double jeopardy, the Air Force’s effective ban on deploying HIV-positive airmen, and the federal gov’t’s prosecution of volunteers who left food and water in the desert for migrants.

  • Should the House Judiciary Committee have access to grand jury material from the Mueller investigation? D.C. Circuit: Indeed they should; grand jury records are court records, not executive branch records, and the district court did not abuse its discretion in ordering their release. Dissent: Courts may have the power to authorize the release of these documents, but they can’t order the executive branch to turn them over. Concurrence: Grand jury materials “do not become executive records simply because the Department of Justice stores them in file cabinets.”
  • Inmate in a West Virginia prison is shanked in the dining hall with a screwdriver, files a FOIA request for video of the attack. Prison: Nope, that may unnecessarily intrude on the privacy of the other inmates who appear in the video. D.C. Circuit: The 70 inmates who were required to be in the lunchroom and who can be seen . . . eating lunch? We’re dubious. In any event, if today’s youths can make themselves look like cats on the Snapchats, it’s not clear why the Bureau of Prisons can’t blur out the other prisoners’ faces.
  • In 2015, the Federal Aviation Administration changes various flight paths into and out of Reagan Nat’l Airport. Displeased with the resulting aircraft noise, the state of Maryland sues in 2018. FAA: Too late! The deadline for suing was 60 days after we published the new flight paths. Maryland: The FAA strung us along from 2015 to 2018, so our delay was excusable. D.C. Circuit: The FAA’s behavior was “hardly a model of sound agency practice,” but (to mix transportation metaphors) the train had long since left the station by the time Maryland filed suit. Case dismissed as untimely.
  • Under federal sentencing guidelines, certain prior offenses cannot be counted in the calculation of an individual’s criminal history score. One of these is loitering. But there are all kinds of loitering statutes. What’s a court to do? Third Circuit: Depends on whether it’s “loitering simpliciter” or “loitering plus,” which is judge-talk for whether or not the loiterer was being sneaky about it.
  • The city of Baltimore sues oil and gas producers in Maryland state court, alleging that climate change is hurting the city. Chevron: And we would like for this case to be heard in federal court. District court: Nope, remanded back to state court. Fourth Circuit: We barely have jurisdiction to review this, but we agree on the tiny part we’re allowed to review.
  • Defendant eligible for resentencing under the First Step Act after serving 15 years says the district court should have resentenced him to only 10 years to allow him to “bank” the extra time against future terms of incarceration. Which, the Fourth Circuit says, is absolutely not a thing the district court had to do.
  • Bexar County, Tex. police respond to 911 call about domestic dispute, encounter a knife-wielding man. Man eventually raises his hands in a surrender pose, at which point the officers—30 feet away—shoot him dead. And to trial the case must go, says the Fifth Circuit. Accepting the man’s estate’s version of events as true, the officers do not enjoy qualified immunity.
  • Creep in a University of Michigan executive MBA program falls for a classmate and, in true creep fashion, goes from buying gifts and asking to “schnuggle” to calling the former object of his affection a “psycho hobeast” and “lying slut whore” when his advances are rejected. Was the university deliberately indifferent to his increasingly threatening behavior? Sixth Circuit: Very possibly; there are disputed issues of fact, so the case goes back down. Dissent: No question this guy is a creep, but the university appropriately escalated its response at every stage.
  • Friends, two years ago we relayed to you the tale of an Ashland, Ky. cardiologist who led the nation in billing Medicare for angiograms and his conviction for health care fraud. It turns out the gov’t withheld exculpatory evidence (on orders from the district court) showing that 7% of the procedures he performed may have been unnecessary; the jury, on the other hand, heard testimony that that number was around 50%. Sixth Circuit: New trial.
  • After becoming a real pain in the neck to the warden by filing “multitudinous lawsuits [and] grievances, and [giving] an interview . . . to a local newspaper,” a successful jailhouse lawyer and all-around fussbudget is transferred from one maximum security prison to another. Naturally, he sues, arguing that his transfer was retaliation for his free speech in violation of the First Amendment. Was it? Seventh Circuit: No. It’s okay for prison officials to transfer an inmate based on the substance of his complaints so long as the transfer is not motivated by the fact that the inmate complained. Plus, most prisons are unpleasant places to be, so the transfer from one unpleasant place to another doesn’t cause any harm.
  • ShotSpotter uses sophisticated microphones to detect the sound of gunfire, triangulate the location, and alert local police. Peoria, Ill. officer receives ShotSpotter alert while on night patrol, and dispatch informs him that vehicles are leaving the address where the gunfire took place. Upon approaching the address, the officer sees only one car leaving the area. He stops it and discovers a felon with a firearm. And the stop—holds a divided Seventh Circuit—did not violate the Fourth Amendment.
  • The Stutsman County, N.D. courthouse houses both the county sheriff and the local police dep’t. But the hallway separating them became a vast chasm when a city cop anonymously reported a county cop for using a county-owned jet ski with the sheriff’s son for personal use. But wait! The county didn’t own a jet ski. The identity of the city cop—who is also the president of the state fraternal order of police—is uncovered, and he is barred from entering county offices and fired after a sprawling investigation. Moreover, the county revokes the police union’s contract to operate ATMs and vending machines in the courthouse. Eighth Circuit: It did not violate the First Amendment to fire the city cop.
  • Man released from involuntary commitment in mental institution in 2000 (when he was 18) goes on to lead successful, peaceable life. But he’s barred from obtaining a firearm. A violation of his Second Amendment rights? The Ninth Circuit says no. “[N]othing in the record suggests that Plaintiff’s level of risk [of suicide or aggression] is nonexistent or that his level of risk matches the risk associated with a similarly situated person who lacks a history of mental illness.”
  • The opening notes of Led Zeppelin’s “Stairway to Heaven” do not infringe on the copyright of a lesser-known band, says the Ninth Circuit, sitting en banc. So there’s no need for a new trial; the district judge did not err by refusing to play “Taurus” (by the band Spirit) for the jury.
  • Male student at the University of Denver challenges the fairness of the school’s sexual misconduct disciplinary proceedings, alleges that they are biased against men. Tenth Circuit: No, they are biased against respondents, virtually all of whom happen to be men. The school’s procedures would subject female respondents to an equal degree of “railroading.”
  • Florida corrections officials stop hormone therapy and deny social transitioning (here, the freedom to wear makeup, long hair, and women’s garments) to transgender inmate, who makes multiple attempts at suicide and self-castration. Deliberate indifference to a serious medical need in violation of the Eighth Amendment? Eleventh Circuit: The hormone claims are moot because the prison changed policy, and the denial of social transitioning does not violate the Eighth Amendment. Dissent: I respectfully disagree with my dumb, idiot colleagues.

In 2015, an armed shoplifter fled into an innocent family’s Greenwood Village, Colo. house. Only one person was home, and they were able to exit safely. But during a 19-hour siege, police intentionally destroyed the house using explosives, high-caliber ammunition, and a battering ram mounted on a tank-like vehicle. And last year, the Tenth Circuit ruled that the city did not need to compensate the homeowners, Alfonsina and John Lech. This week, IJ asked the Supreme Court to review the case. “For well over a century, the Supreme Court has enforced a simple rule: The government has to pay for private property it takes or destroys,” says IJ Attorney Jeffrey Redfern. “If the government requires a piece of property to be destroyed, then the government should pay for it—that’s just as true regardless of whether the people doing the destroying are the local school board or the local police.”

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Short Circuit: A Roundup of Recent Federal Court Decisions

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

New on the Short Circuit podcast: double jeopardy, the Air Force’s effective ban on deploying HIV-positive airmen, and the federal gov’t’s prosecution of volunteers who left food and water in the desert for migrants.

  • Should the House Judiciary Committee have access to grand jury material from the Mueller investigation? D.C. Circuit: Indeed they should; grand jury records are court records, not executive branch records, and the district court did not abuse its discretion in ordering their release. Dissent: Courts may have the power to authorize the release of these documents, but they can’t order the executive branch to turn them over. Concurrence: Grand jury materials “do not become executive records simply because the Department of Justice stores them in file cabinets.”
  • Inmate in a West Virginia prison is shanked in the dining hall with a screwdriver, files a FOIA request for video of the attack. Prison: Nope, that may unnecessarily intrude on the privacy of the other inmates who appear in the video. D.C. Circuit: The 70 inmates who were required to be in the lunchroom and who can be seen . . . eating lunch? We’re dubious. In any event, if today’s youths can make themselves look like cats on the Snapchats, it’s not clear why the Bureau of Prisons can’t blur out the other prisoners’ faces.
  • In 2015, the Federal Aviation Administration changes various flight paths into and out of Reagan Nat’l Airport. Displeased with the resulting aircraft noise, the state of Maryland sues in 2018. FAA: Too late! The deadline for suing was 60 days after we published the new flight paths. Maryland: The FAA strung us along from 2015 to 2018, so our delay was excusable. D.C. Circuit: The FAA’s behavior was “hardly a model of sound agency practice,” but (to mix transportation metaphors) the train had long since left the station by the time Maryland filed suit. Case dismissed as untimely.
  • Under federal sentencing guidelines, certain prior offenses cannot be counted in the calculation of an individual’s criminal history score. One of these is loitering. But there are all kinds of loitering statutes. What’s a court to do? Third Circuit: Depends on whether it’s “loitering simpliciter” or “loitering plus,” which is judge-talk for whether or not the loiterer was being sneaky about it.
  • The city of Baltimore sues oil and gas producers in Maryland state court, alleging that climate change is hurting the city. Chevron: And we would like for this case to be heard in federal court. District court: Nope, remanded back to state court. Fourth Circuit: We barely have jurisdiction to review this, but we agree on the tiny part we’re allowed to review.
  • Defendant eligible for resentencing under the First Step Act after serving 15 years says the district court should have resentenced him to only 10 years to allow him to “bank” the extra time against future terms of incarceration. Which, the Fourth Circuit says, is absolutely not a thing the district court had to do.
  • Bexar County, Tex. police respond to 911 call about domestic dispute, encounter a knife-wielding man. Man eventually raises his hands in a surrender pose, at which point the officers—30 feet away—shoot him dead. And to trial the case must go, says the Fifth Circuit. Accepting the man’s estate’s version of events as true, the officers do not enjoy qualified immunity.
  • Creep in a University of Michigan executive MBA program falls for a classmate and, in true creep fashion, goes from buying gifts and asking to “schnuggle” to calling the former object of his affection a “psycho hobeast” and “lying slut whore” when his advances are rejected. Was the university deliberately indifferent to his increasingly threatening behavior? Sixth Circuit: Very possibly; there are disputed issues of fact, so the case goes back down. Dissent: No question this guy is a creep, but the university appropriately escalated its response at every stage.
  • Friends, two years ago we relayed to you the tale of an Ashland, Ky. cardiologist who led the nation in billing Medicare for angiograms and his conviction for health care fraud. It turns out the gov’t withheld exculpatory evidence (on orders from the district court) showing that 7% of the procedures he performed may have been unnecessary; the jury, on the other hand, heard testimony that that number was around 50%. Sixth Circuit: New trial.
  • After becoming a real pain in the neck to the warden by filing “multitudinous lawsuits [and] grievances, and [giving] an interview . . . to a local newspaper,” a successful jailhouse lawyer and all-around fussbudget is transferred from one maximum security prison to another. Naturally, he sues, arguing that his transfer was retaliation for his free speech in violation of the First Amendment. Was it? Seventh Circuit: No. It’s okay for prison officials to transfer an inmate based on the substance of his complaints so long as the transfer is not motivated by the fact that the inmate complained. Plus, most prisons are unpleasant places to be, so the transfer from one unpleasant place to another doesn’t cause any harm.
  • ShotSpotter uses sophisticated microphones to detect the sound of gunfire, triangulate the location, and alert local police. Peoria, Ill. officer receives ShotSpotter alert while on night patrol, and dispatch informs him that vehicles are leaving the address where the gunfire took place. Upon approaching the address, the officer sees only one car leaving the area. He stops it and discovers a felon with a firearm. And the stop—holds a divided Seventh Circuit—did not violate the Fourth Amendment.
  • The Stutsman County, N.D. courthouse houses both the county sheriff and the local police dep’t. But the hallway separating them became a vast chasm when a city cop anonymously reported a county cop for using a county-owned jet ski with the sheriff’s son for personal use. But wait! The county didn’t own a jet ski. The identity of the city cop—who is also the president of the state fraternal order of police—is uncovered, and he is barred from entering county offices and fired after a sprawling investigation. Moreover, the county revokes the police union’s contract to operate ATMs and vending machines in the courthouse. Eighth Circuit: It did not violate the First Amendment to fire the city cop.
  • Man released from involuntary commitment in mental institution in 2000 (when he was 18) goes on to lead successful, peaceable life. But he’s barred from obtaining a firearm. A violation of his Second Amendment rights? The Ninth Circuit says no. “[N]othing in the record suggests that Plaintiff’s level of risk [of suicide or aggression] is nonexistent or that his level of risk matches the risk associated with a similarly situated person who lacks a history of mental illness.”
  • The opening notes of Led Zeppelin’s “Stairway to Heaven” do not infringe on the copyright of a lesser-known band, says the Ninth Circuit, sitting en banc. So there’s no need for a new trial; the district judge did not err by refusing to play “Taurus” (by the band Spirit) for the jury.
  • Male student at the University of Denver challenges the fairness of the school’s sexual misconduct disciplinary proceedings, alleges that they are biased against men. Tenth Circuit: No, they are biased against respondents, virtually all of whom happen to be men. The school’s procedures would subject female respondents to an equal degree of “railroading.”
  • Florida corrections officials stop hormone therapy and deny social transitioning (here, the freedom to wear makeup, long hair, and women’s garments) to transgender inmate, who makes multiple attempts at suicide and self-castration. Deliberate indifference to a serious medical need in violation of the Eighth Amendment? Eleventh Circuit: The hormone claims are moot because the prison changed policy, and the denial of social transitioning does not violate the Eighth Amendment. Dissent: I respectfully disagree with my dumb, idiot colleagues.

In 2015, an armed shoplifter fled into an innocent family’s Greenwood Village, Colo. house. Only one person was home, and they were able to exit safely. But during a 19-hour siege, police intentionally destroyed the house using explosives, high-caliber ammunition, and a battering ram mounted on a tank-like vehicle. And last year, the Tenth Circuit ruled that the city did not need to compensate the homeowners, Alfonsina and John Lech. This week, IJ asked the Supreme Court to review the case. “For well over a century, the Supreme Court has enforced a simple rule: The government has to pay for private property it takes or destroys,” says IJ Attorney Jeffrey Redfern. “If the government requires a piece of property to be destroyed, then the government should pay for it—that’s just as true regardless of whether the people doing the destroying are the local school board or the local police.”

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The Plot Against America Is Not About Trump, Even If Comparisons Are Inevitable

The Plot Against America. HBO. Monday, March 16, 9 p.m.

In 2004, when Philip Roth published The Plot Against America, an alternative history in which Charles Lindbergh defeats Franklin Delano Roosevelt in the 1940 presidential election and steers America into fascism, the chattering-class critics were all agog about this chilling allegory about the George W. Bush presidency. (Like, Bush and Lindbergh were both pilots and everything.) Roth rather convincingly denied that Bush was the inspiration for his novel; Bush did not propose replacing “The Star-Spangled Banner” with “Tomorrow Belongs To Me,” and the book returned to being a wintry what-if meditation on anti-Semitism.

Sixteen years later, David Simon has turned the novel into an HBO miniseries, and this time the arts intelligentsia has discovered that the real culprit is not Bush but Donald Trump. And I don’t think Simon will be issuing any denials.

Consider the familiar ring of these words from a Jewish character who thinks the president is stirring up anti-Semitism: “These assholes, they’ve always been here. Now they have permission to crawl out from under their rocks.” Or this line: “This is how it starts: everyone thinking they can work with the guy. Like Hitler: Everyone believes he doesn’t mean what he says.” Or the accusation that his critics are being bought off by a strong economy: “Not so long ago, you couldn’t bear the man, either. But now what? Stock market is up, profits are up, business is moving … . What he stands for is forgotten. What else matters to you, a businessman, if the money is right?”

It’s been a while since I read the novel, and it’s possible that some of this dialogue is the work of Roth and not Simon. Either way, watching The Plot Against America often feels like being locked in a closet with a fanatical #NeverTrumper: It’ll give you a headache even if you agree with him.

Simon and his writing partner Ed Burns have certainly woven political polemics into their work before, notably on the futility of the war on drugs in The Wire and the corruption engendered by attempts to outlaw the sex trade in The Deuce and done so intelligently and entertainingly. But even without the Trump Temptation, the novel The Plot Against America poses some special challenges.

Alternative history is, by definition, ahistorical. But generally it changes one key factual point, then lets the archival billiard balls bump each other around. Roth’s novel is more like a complete rewrite of the record. Lindbergh’s exploits as a pioneering aviator made him wildly famous in a way that’s nearly impossible to understand in today’s your-15-minutes-are-up world, but he never tried to make any political hay out of it; he showed no interest in the presidency. And if he had, there’s not the faintest evidence he would have been successful—Roosevelt’s popularity was so immense that he was able to toss out 150 years of no-third-term tradition with scarcely a peep of protest.

So, fine, there’s your one historical anomaly to start the ball rolling. But the novel continues to edit history whenever it’s convenient to the plot.  Lindbergh was, no doubt, anti-Semitic, but if he was a Nazi, he made Sergeant Schultz look downright competent. In the run-up to World War II, when the United States had no intelligence service, he used ceremonial visits to Germany to spy on the Luftwaffe and was the source for practically everything the United States knew about the Nazis’ powerful new air force.

If Roth overhypes his villains, he whitewashes his heroes. The Jewish characters through whose eyes the story is told regard Roosevelt as the Moses of his day, a magnificent statesman and the sword and shield of American Jews. Actually, FDR spent a good bit of his spare time plotting schemes to keep Jews out of a post-war America. He stood by contentedly as his notoriously anti-Semitic State Department infamously turned away the German cruise ship St. Louis and its cargo of Jewish refugees in 1939, sending hundreds of them back to die at the hands of the Nazis. Likewise, Canada—treated as a cuddly asylum state for Lindbergh’s Jewish victims in The Plot—actually spent most of the 1930s rejecting Jewish refugees, as many as 800,000 of them.

Roth’s fantasies about who was doing what to whom during the prelude to the war are mostly transferred intact to Martin’s series, undermining both its dramatic and political credibility to the extent that it probably ought to be retitled The Way We Weren’t. But if you ignore the show’s macropolitical level and focus instead on its characters and their little chunk of the world, the superlative story-telling skills of Simon and Burns assert themselves.

Like the novel, their tale is told through a fictionalized version of Roth’s own family. Dad Herman (Morgan Spector, Homeland) is an up-and-coming insurance salesman and the kind of guy who bellows as he listens to Walter Winchell’s nightly radio newscast. Mom Elizabeth (Zoe Kaza, The Deuce) is quieter, but as a childhood refugee from Russia, has more close-up experience with anti-Semitism than her husband does. Teenage artist Sandy (newcomer Caleb Malis), is fascinated by Lindbergh’s heroic dimensions, much to his father’s disgust. And young Philip’s (Azhy Robertson, The Americans) scant political comprehension only exacerbates his growing terror of a world seemingly spinning off its axis.

The two most engaging characters of all come from outside the nuclear family: Bully-boy gangbanger Alvin (Anthony Boyle, Ordeal By Innocence), Herman’s orphaned nephew, whose innate rage at the world causes him to join the Canadian army to shoot Nazis, only to discover that they shoot back, and Elizabeth’s apolitical and old-maidish sister Evelyn (Winona Ryder), whose pursuit of a husband leads her into a liaison with a collaborationist Southern rabbi. Boyle and Rider’s desperation at coping with a world from which they seem permanently locked out is so real it stings. More than the others, they ponder what it means to be Jewish. Is their New Jersey home really located in a Jewish neighborhood? Or is it—and Alvin and some of his young friends suspect—a ghetto?

And then there’s Alvin’s conversation with a flirty young British woman who’s never met a Jew before and isn’t sure what the big deal is.

“You don’t seem so different,” she says. “You believe in more or less the same stuff as anybody else, God and all that.”

“I don’t believe in God,” he corrects her.

“Then why are you Jewish?” she asks in surprise.

His reply is The Plot Against America‘s bottom line, which despite all the show’s political missteps, sounds what it must really have felt like to be Jewish in the 1940s: “I’m a Jew because I was born a Jew, and this whole fuckin world wishes I wasn’t.”

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The Plot Against America Is Not About Trump, Even If Comparisons Are Inevitable

The Plot Against America. HBO. Monday, March 16, 9 p.m.

In 2004, when Philip Roth published The Plot Against America, an alternative history in which Charles Lindbergh defeats Franklin Delano Roosevelt in the 1940 presidential election and steers America into fascism, the chattering-class critics were all agog about this chilling allegory about the George W. Bush presidency. (Like, Bush and Lindbergh were both pilots and everything.) Roth rather convincingly denied that Bush was the inspiration for his novel; Bush did not propose replacing “The Star-Spangled Banner” with “Tomorrow Belongs To Me,” and the book returned to being a wintry what-if meditation on anti-Semitism.

Sixteen years later, David Simon has turned the novel into an HBO miniseries, and this time the arts intelligentsia has discovered that the real culprit is not Bush but Donald Trump. And I don’t think Simon will be issuing any denials.

Consider the familiar ring of these words from a Jewish character who thinks the president is stirring up anti-Semitism: “These assholes, they’ve always been here. Now they have permission to crawl out from under their rocks.” Or this line: “This is how it starts: everyone thinking they can work with the guy. Like Hitler: Everyone believes he doesn’t mean what he says.” Or the accusation that his critics are being bought off by a strong economy: “Not so long ago, you couldn’t bear the man, either. But now what? Stock market is up, profits are up, business is moving … . What he stands for is forgotten. What else matters to you, a businessman, if the money is right?”

It’s been a while since I read the novel, and it’s possible that some of this dialogue is the work of Roth and not Simon. Either way, watching The Plot Against America often feels like being locked in a closet with a fanatical #NeverTrumper: It’ll give you a headache even if you agree with him.

Simon and his writing partner Ed Burns have certainly woven political polemics into their work before, notably on the futility of the war on drugs in The Wire and the corruption engendered by attempts to outlaw the sex trade in The Deuce and done so intelligently and entertainingly. But even without the Trump Temptation, the novel The Plot Against America poses some special challenges.

Alternative history is, by definition, ahistorical. But generally it changes one key factual point, then lets the archival billiard balls bump each other around. Roth’s novel is more like a complete rewrite of the record. Lindbergh’s exploits as a pioneering aviator made him wildly famous in a way that’s nearly impossible to understand in today’s your-15-minutes-are-up world, but he never tried to make any political hay out of it; he showed no interest in the presidency. And if he had, there’s not the faintest evidence he would have been successful—Roosevelt’s popularity was so immense that he was able to toss out 150 years of no-third-term tradition with scarcely a peep of protest.

So, fine, there’s your one historical anomaly to start the ball rolling. But the novel continues to edit history whenever it’s convenient to the plot.  Lindbergh was, no doubt, anti-Semitic, but if he was a Nazi, he made Sergeant Schultz look downright competent. In the run-up to World War II, when the United States had no intelligence service, he used ceremonial visits to Germany to spy on the Luftwaffe and was the source for practically everything the United States knew about the Nazis’ powerful new air force.

If Roth overhypes his villains, he whitewashes his heroes. The Jewish characters through whose eyes the story is told regard Roosevelt as the Moses of his day, a magnificent statesman and the sword and shield of American Jews. Actually, FDR spent a good bit of his spare time plotting schemes to keep Jews out of a post-war America. He stood by contentedly as his notoriously anti-Semitic State Department infamously turned away the German cruise ship St. Louis and its cargo of Jewish refugees in 1939, sending hundreds of them back to die at the hands of the Nazis. Likewise, Canada—treated as a cuddly asylum state for Lindbergh’s Jewish victims in The Plot—actually spent most of the 1930s rejecting Jewish refugees, as many as 800,000 of them.

Roth’s fantasies about who was doing what to whom during the prelude to the war are mostly transferred intact to Martin’s series, undermining both its dramatic and political credibility to the extent that it probably ought to be retitled The Way We Weren’t. But if you ignore the show’s macropolitical level and focus instead on its characters and their little chunk of the world, the superlative story-telling skills of Simon and Burns assert themselves.

Like the novel, their tale is told through a fictionalized version of Roth’s own family. Dad Herman (Morgan Spector, Homeland) is an up-and-coming insurance salesman and the kind of guy who bellows as he listens to Walter Winchell’s nightly radio newscast. Mom Elizabeth (Zoe Kaza, The Deuce) is quieter, but as a childhood refugee from Russia, has more close-up experience with anti-Semitism than her husband does. Teenage artist Sandy (newcomer Caleb Malis), is fascinated by Lindbergh’s heroic dimensions, much to his father’s disgust. And young Philip’s (Azhy Robertson, The Americans) scant political comprehension only exacerbates his growing terror of a world seemingly spinning off its axis.

The two most engaging characters of all come from outside the nuclear family: Bully-boy gangbanger Alvin (Anthony Boyle, Ordeal By Innocence), Herman’s orphaned nephew, whose innate rage at the world causes him to join the Canadian army to shoot Nazis, only to discover that they shoot back, and Elizabeth’s apolitical and old-maidish sister Evelyn (Winona Ryder), whose pursuit of a husband leads her into a liaison with a collaborationist Southern rabbi. Boyle and Rider’s desperation at coping with a world from which they seem permanently locked out is so real it stings. More than the others, they ponder what it means to be Jewish. Is their New Jersey home really located in a Jewish neighborhood? Or is it—and Alvin and some of his young friends suspect—a ghetto?

And then there’s Alvin’s conversation with a flirty young British woman who’s never met a Jew before and isn’t sure what the big deal is.

“You don’t seem so different,” she says. “You believe in more or less the same stuff as anybody else, God and all that.”

“I don’t believe in God,” he corrects her.

“Then why are you Jewish?” she asks in surprise.

His reply is The Plot Against America‘s bottom line, which despite all the show’s political missteps, sounds what it must really have felt like to be Jewish in the 1940s: “I’m a Jew because I was born a Jew, and this whole fuckin world wishes I wasn’t.”

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