Category: reason

As a United States senator from Massachusetts, Elizabeth Warren is earning $174,000 a year. The least she could do is show up for work.

Instead, Senator Warren’s recent absenteeism has me—a Boston resident and biographer of Samuel Adams—upset about what Adams might have recognized as a twist on taxation without representation. If Warren doesn’t bother to vote, her constituents, including me and millions of other citizens of the Bay State, are effectively deprived of a say in the Senate.

That’s exactly what has been happening. The first two weeks of November, there were 14 roll call votes in the Senate. Warren was absent for each and every one. Nor was this phenomenon limited to November. There were four roll call votes on October 31; Warren didn’t show up for a single one of those, either. She’s missed at least the past 23 votes in a row. According to ProPublica, she’s missed more than four out of every ten votes this year. According to GovTrack, she missed 70.2 percent of the votes from July through September of 2019 and has missed 95.3 percent of the votes in October and November of 2019.

Sens. Bernie Sanders (I–Vt.), Cory Booker (D–N.J.), and Kamala Harris (D–Calif.), who are also running for president, have also missed a lot of votes, but that’s not my problem. They aren’t my senators. It must be said, too, that Sens. Michael Bennet (D–Colo.) and Amy Klobuchar (D–Minn.) either take their responsibilities as senators more seriously than Warren does or they take their presidential campaigns less seriously than she does. Whatever their motives, Bennet and Klobuchar have been better about showing up for the work they were elected to do.

Warren could give her flagging presidential campaign a boost and signal some respect for the voters of Massachusetts by following in the footsteps of Senator Robert Dole, a Republican who resigned from the Senate in 1996 to devote himself full time to his presidential campaign against Bill Clinton.

If Warren isn’t willing to take that step voluntarily, the governor of Massachusetts, Republican Charlie Baker, could try offering her some incentives by promising to fill Warren’s seat by appointing a Democrat until a special election can be held. Baker could appoint his own predecessor as governor, Deval Patrick, who might agree in return to end the presidential campaign that could siphon votes from Warren in New Hampshire. Or Baker could appoint the man Patrick appointed to fill John Kerry’s seat, Mo Cowan, who is widely liked and respected on both sides of the aisle. Or Baker could appoint Rep. Joe Kennedy III (D–Mass.), a former student of Warren’s who has endorsed Warren’s presidential campaign and who has also announced plans to challenge the other senator from Massachusetts, Ed Markey.

Some might complain that it’s a double standard to expect Warren to resign from the Senate to seek the presidency. After all, President Trump campaigns for re-election while also serving as president. If it’s okay for Trump to do two jobs simultaneously—president and presidential candidate—why isn’t it okay for Warren to do the same?

The executive function is different from the legislative function. Trump can delegate certain tasks to his vice president or cabinet members. But only a senator can vote in the Senate. Warren’s chronic absenteeism demonstrates that she’s not taking that responsibility seriously. Sure, she’s way more left-wing than I am, but even if I don’t necessarily agree with how she’d be voting, I’d still like my state to be represented.

The issue is all the more acute given that the Senate may soon be pressed into function as, in essence, a jury deciding whether to convict the president in an impeachment proceeding. How is Warren—or, for that matter, Sanders, Booker, Harris, or the rest of them—supposed to serve as an impeachment juror while also campaigning for the president’s job? The competing time demands will be hard to manage, and it makes it even harder to take an impeachment trial seriously when six of the 100 jurors are announced presidential candidates hoping to oust Trump through the electoral process.

Warren got elected in 2018 in part on the basis of a pledge to be a full-time senator. “Warren: I’ll serve my full Senate term if reelected,” was the headline Politico put over a 2018 news article that began, “Elizabeth Warren said she would serve her full six-year term in the Senate if reelected in November.” The article quoted Warren as saying, “I am not running for president of the United States. That’s my plan.” The senator wasn’t pressed on the definition of “serve,” but, as a Massachusetts voter, I certainly didn’t imagine that by “serve” she meant she’d miss so many of the votes.

It’s one thing if a politician falls ill or has pressing family obligations that require missing work. But Warren has decided to spend months interviewing for a job other than the one that she currently has.

Ultimately, the decision on whether to stay in the Senate or resign while seeking the presidency is Warren’s to make. But as one of the people she’s ostensibly representing, I’d sure prefer someone who treats it as a full-time job by showing up when it’s time to vote.

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Who’s ready for Week Two of the impeachment show (not to be confused with The Impeachment Show)? Well, ready might be a strong word, but the Reason Roundtable quartet of Nick Gillespie, Peter Suderman, Matt Welch, and Katherine Mangu-Ward have many thoughts about comparative presidential corruption, the Sixth Amendment, how politics keeps getting stuck in our government, and whether “bribery” is the right word for the job. The important thing is that it’s all going to get worse.

Speaking of which, so are the Democrats’ semi-phony yet heartfelt Centrism Wars, which get a thorough examination on the podcast as well. Is Pete Buttigieg a blank slate for the politically gullible? Does Michael Bloomberg’s understanding of capitalism outweigh his enthusiasm for regulation? Is it time to blow the whole thing off and spend the weekend tripping balls on ayahuasca? All, and much more, are discussed.

SPEAKING OF DISCUSSION: Ever feel like harassing the Reason Roundtableists with individual or group questions? With our annual Webathon around the corner, the time to do so is right the hell now. Email your queries to podcasts@reason.com, and we shall do our best to answer them in a forthcoming video release during the Webathon.

Audio production by Ian Keyser and Regan Taylor.

‘Confused State’ by Kevin MacLeod is licensed under CC BY 3.0

Relevant links from the show:

“The Reason Podcast Is Now 3 Great New Podcasts. Subscribe!” by Katherine Mangu-Ward

“Far From Avoiding ‘Quid Pro Quo’ Talk, Calling Trump’s Conduct Bribery Requires It,” by Jacob Sullum

“Justin Amash to Trump: Let Bolton, Giuliani, and Mulvaney Testify,” by Billy Binion

“Democrats Cry Corruption, Republicans Denounce Hearsay at First Impeachment Hearings,” by Christian Britschgi

“U.S. Diplomat Bill Taylor: It Was ‘Crazy’ To Freeze Aid to Ukraine ‘for Help With a Political Campaign,’” by Billy Binion

“Ambassador Changes Testimony, Admits Giving Quid Pro Quo Message to Ukraine,” by Billy Binion

“Impeachment and the Sixth Amendment,” by David Post

“Steve Calabresi Responds and Updates His Arguments on Impeachment Hearings,” by Jim Lindgren

“Barack Obama Slams Woke Scolds and Hashtag Activism,” by Robby Soave

“Pete Buttigieg Has a $1 Trillion Plan to Drive Up Housing, College, and Labor Costs,” by Scott Shackford

“Glamour and the Art of Persuasion,” by Virginia Postrel

“If Biden Won’t Support Legalization Until We Know Whether Marijuana Is a ‘Gateway Drug,’ He Will Never Support Legalization,” by Jacob Sullum

“The Democratic Primaries Get a Last-Minute Addition,” by Zuri Davis

“‘We Vape, We Vote’ Crowd Got Through to Donald Trump, Advisors Say,” by Elizabeth Nolan Brown

“Michael Bloomberg’s Anti-Vaping Crusade Is Objectively Pro-Tobacco,” by Jacob Sullum

“Michael Bloomberg’s Centrism Combines the Worst Instincts of the Right and Left,” by Jacob Sullum

“Couldn’t You Choose a Sacrament That’s Less Fun and More Nauseating?” By Jacob Sullum

“Review: Parasite,” by Kurt Loder

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An anti-competitive regulation would have restricted access to a promising new cancer treatment in Michigan. Fortunately, the rule has been wiped off the books. But its near-adoption stands as a warning about how hospitals can use the government to protect profits at the expense of patients.

In September, Michigan’s Certificate of Need Commission voted to impose extra accreditation requirements on health care providers that offer immunotherapy cancer treatments—including CAR T-cell treatments, a particularly promising approach that works by bio-engineering the body’s immune system to equip blood cells with new Chimeric Antigen Receptors to target cancer cells. Those treatments have become an increasingly attractive way to combat cancer alongside more traditional methods, such as surgery, chemotherapy, and radiation.

Under the rules passed by the state commission, hospitals wanting to offer CAR T-cell treatments and other, similar therapies would have had to obtain additional third-party certifications. The additional certifications would have effectively prohibited many smaller hospitals and clinics from offering this potentially revolutionary treatment.

“Some patients will not have the resources to travel to a major academic medical center and thereby will be excluded from the potential benefits of this life-saving therapy,” James Essell, cellular therapy chair of the U.S. Oncology Network, told the commission before it went ahead and adopted the new rules anyway. Similar objections were raised by a variety of cancer research organizations, doctors, pharmaceutical companies, and patient advocates. The American Cancer Society warned that the new regulations meant some patients “may not be offered CAR T-cell treatment or new cellular therapies in the future, or may experience significant health decline or death before they could identify a facility and gain access.”

But the commission sided with several large hospital chains, including the University of Michigan Health System, the state’s largest hospital system, in unanimously adopting the new rules.

On October 30, both chambers of the Michigan legislature approved a resolution scrapping the rules. A 2002 reform to the state’s Certificate of Need laws let them block the regulations from taking effect.

“We would have been the only state in the nation to require additional state-level government oversight of this procedure,” said Sen. Curt VanderWall (R–Ludington), who sponsored the Senate version of the disapproval resolution blocking the new rules. “Michigan does not need to add another layer of government bureaucracy at the state level; the current safeguards are more than enough.”

Indeed, these regulations were never really about patient safety at all.

In 2017, the Food and Drug Administration (FDA) approved two CAR T-cell therapies for children suffering from leukemia and for adults with advanced lymphoma. In August, the Centers for Medicare and Medicare Services specifically said the type of certification imposed by the Michigan CON commission was not necessary for hospitals to offer CAR-T cell therapy. Instead, the agency recommended a different third-party certification, one that is already required for all hospitals in Michigan.

And while CAR-T therapy is still being developed and other uses of T-cell therapies are yet to be approved by the FDA, the Michigan CON Commission does not do medical testing. Like similar agencies in other states, the extent of its mandate is purely economic, not medical. Though the specific applications of CON laws differ from state to state, their stated purpose is to prevent overinvestment and keep hospitals from having to charge higher prices to make up for unnecessary outlays of capital costs.

“Do we really want unregulated access where let’s say 100 hospitals can each treat like three patients? No,” Greg Yanik, an Ann Arbor–based oncologist who favored the new regulations, told Crain’s Business Journal earlier this month.

Depending on the state, everything from the number of hospital beds to the installation of a new MRI machine could be subject to CON review. And the boards themselves are often subject to regulatory capture and become subject to the influence of large hospital chains or other special interests.

“The attempt to regulate promising new cancer treatment in Michigan proves how easy it is for a Certificate of Need board to extend political power at the expense of patients,” says Anna Parsons, a policy coordinator with the American Legislative Exchange Council.

Patients ultimately lose. In 2016, researchers at the Mercatus Center at George Mason University found that hospitals in states with CON laws have higher mortality rates than hospitals in non-CON states. The average 30-day mortality rate for patients with pneumonia, heart failure, and heart attacks in states with CON laws is between 2.5 percent and 5 percent higher even after demographic factors are taken out of the equation.

Parsons says state lawmakers should repeal the state’s CON law entirely to prevent other needless regulations in the future. For now, thankfully, state lawmakers did their duty to prevent a potentially disastrous regulation from blocking access to these promising cancer treatments.

Innovative immunotherapy treatments are “bringing patients back from the brink of death and giving them a new chance at life,” says Vanderwall. “A chance that shouldn’t be taken away by bureaucratic hurdles and unnecessary regulations.”

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During Michael Bloomberg’s three terms as mayor of New York City, the number of people detained under the NYPD’s “stop, question, and frisk” (SQF) program skyrocketed from fewer than 100,000 in 2002 to more than 685,000 in 2011. The program was perennially controversial because it seemed to violate the Fourth Amendment and because it overwhelmingly targeted young black and Hispanic men. Bloomberg nevertheless was always a staunch defender of it—until yesterday, when he told the congregation of a large African-American church in Brooklyn he has seen the error of his ways.

“I was wrong,” Bloomberg said in a speech at the Christian Cultural Center, “and I am sorry.” The dramatic reversal may be the surest sign yet that Bloomberg is entering the race for the Democratic Party’s presidential nomination. But it is transparently insincere, since he cannot offer a plausible explanation for his convenient conversion, aside from crass political considerations.

“I got something important really wrong,” Bloomberg said. “I didn’t understand…back then the full impact that stops were having on the black and Latino communities. I was totally focused on saving lives. But as we know, good intentions aren’t good enough. Now, hindsight is 20/20. But as crime continued to come down as we reduced stops—and as it continued to come down during the next administration, to its credit—I now see that we could and should have acted sooner, and acted faster, to cut the stops. I wish we had, and I’m sorry that we didn’t.”

SQF’s racially disproportionate impact was always one of the main complaints against it. The issue figured prominently in a federal judge’s 2013 decision deeming the tactic unconstitutional as practiced by the NYPD. It is impossible to believe that Bloomberg took this objection to heart only recently. Even after U.S. District Judge Shira Scheindlin concluded that the program violated the Fourth and 14th amendments, Bloomberg continued to defend it.

Scheindlin found that police were commonly detaining, questioning, and searching New Yorkers without the “reasonable suspicion” the Supreme Court has said the Fourth Amendment requires. She also concluded, based on data showing who was stopped and what happened afterward, that cops were deciding who was suspicious based partly on race, thereby violating the 14th Amendment’s Equal Protection Clause.

Scheindlin’s analysis of data on 4.4 million stops from January 2004 to June 2012 strongly suggested that reasonable suspicion was the exception rather than the rule. During this period, she noted, only 12 percent of people subjected to the “demeaning and humiliating” experience of being treated like criminals were arrested or issued a summons. And although police were supposed to frisk a subject only if they reasonably believed he was armed, 52 percent of these encounters included pat-downs, only 1.5 percent of which discovered a weapon. Even when officers reached into people’s clothing after feeling what they claimed to think was a weapon, they found one just 9 percent of the time.

The fact that people stopped by police turned out to be innocent nine times out of 10 also figured in Scheindlin’s equal protection analysis. “The City and its highest officials believe that blacks and Hispanics should be stopped at the same rate as their proportion of the local criminal suspect population,” she wrote. “But this reasoning is flawed because the stopped population is overwhelmingly innocent—not criminal….While a person’s race may be important if it fits the description of a particular crime suspect, it is impermissible to subject all members of a racially defined group to heightened police enforcement because some members of that group are criminals. The Equal Protection Clause does not permit race-based suspicion.”

Bloomberg was outraged by Scheindlin’s decision, which he immediately promised to appeal. “There is just no question that stop-question-frisk has saved countless lives,” he said. “And we know that most of the lives saved, based on the statistics, have been black and Hispanic young men.” He complained that Scheindlin “made it clear she was not interested in the crime reductions” and “ignored the real-world realities of crime.”

The assertion that SQF “saved countless lives” is highly dubious, but Bloomberg’s result-oriented reasoning was notable in any case. Rather than defending the program’s constitutionality, he has consistently defended its effectiveness. In his view, the tiny and declining percentage of stops that yielded guns showed the program was working as a deterrent. He thereby conceded that the searches generally were unconstitutional because they were not justified by reasonable suspicion. His attitude was: So what, as long as it works?

Scheindlin answered that question in her decision. “This case is not about the effectiveness of stop and frisk in deterring or combating crime,” she wrote. “This Court’s mandate is solely to judge the constitutionality of police behavior, not its effectiveness as a law enforcement tool. Many police practices may be useful for fighting crime—preventive detention or coerced confessions, for example—but because they are unconstitutional they cannot be used, no matter how effective.”

That point always seemed to elude Bloomberg. But now that he is about to run for the Democratic presidential nomination, he says he gets it, sort of:

By my final year in office, support for the department had eroded. And the main reason was the practice of something called stop and frisk.

Our focus was on saving lives. The fact is, far too many innocent people were being stopped while we tried to do that. The overwhelming majority of them were black and Latino. That may have included, I’m sorry to say, some of you here today. Perhaps yourself or your children, or your grandchildren, or your neighbors, or your relatives.

I spoke with many of the innocent people affected, and listened to their frustrations and their anger. And as I said at the time, I’d be angry, too.

So in 2012, in my third term, we began putting more safeguards in place, and we began scaling back the number of stops. As we did that, we noticed something important: crime did not go back up.

So we began scaling the stops back faster—and further. And by the time I left office, we had cut stops by 94 percent.

While Bloomberg implies that he saw the light on SQF by the end of his third term, he continued to defend the program after leaving office, arguing, without much evidence, that it reduced violent crime. In an interview with The New York Times last year, he suggested that his record of supporting SQF would prove to be an asset if he entered the presidential race. “I think people, the voters, want low crime,” he said. “They don’t want kids to kill each other.” As recently as March, he was mocking the notion of launching “an apology tour,” à la Joe Biden, to make up for a history of supporting anti-crime policies that are now unpopular with Democratic primary voters.

Bloomberg may have changed his mind about the political risks of continuing to brag about SQF. But the idea that he suddenly realized the program was unfair and unconstitutional after defending it for nearly two decades, even if you believe it, is hardly reassuring. It makes you wonder what mistakes he would make as president that he would come to regret years after leaving office.

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South Bend, Indiana, Mayor Pete Buttigieg: We should bring our troops home from Iraq and Afghanistan!

Also, South Bend, Indiana, Mayor Pete Buttigieg: Maybe we should send troops to Mexico!

Over the weekend, several Democrats running for president swung through California. In a Los Angeles forum focusing on Latino voters, Buttigieg suggested it might be appropriate to send the military to Mexico to help deal with that country’s drug violence.

Asked if he would consider military assistance in Mexico, if the country were to request any, Buttigieg told ABC7 reporter Adrienne Alpert: “If it is in the context of a security partnership, then I would welcome ways to make sure that America is doing what we can to ensure our neighbor to the South is secure.”

But Buttigieg also hedged significantly, saying he’d only send troops into conflict if American lives were on the line, if there were no other choice, and if treaty obligations necessitated involvement. More importantly, he’s not suggesting anything like President Donald Trump’s tweet that he’d be happy to send U.S. forces down to Mexico to “wage WAR on the drug cartels and wipe them off the face of the earth.”

Buttigieg is also well aware that the power of the drug cartels in Mexico has been reinforced by our own overly militant policing, which helped create such a dangerous black market in the first place.

“Part of what we can do is make drug trafficking less profitable by walking away from the failed war on drugs here in the United States,” he said.

So the totality of Buttigieg’s comments make it pretty clear that he doesn’t actually want to send troops down to Mexico to help fight drug cartels, but he might be willing to consider some sort of security agreement to provide military assistance.

But he shouldn’t consider even that. Buttigieg, a Navy veteran, was deployed to Afghanistan as an intelligence analyst in 2014. He has been calling on the campaign trail and in debates for withdrawing troops from Afghanistan and Iraq. His history in Afghanistan is instructive, because the country’s attempt at self-government has been mired in all sorts of corruption that the U.S. military is not in a position to combat. Our “assistance” in Afghanistan in recent years has mostly involved putting troops’ lives on the line as billions of U.S. dollars get blown on projects that a federal inspector described as plagued with “far too many instances of poor planning, sloppy execution, theft, corruption, and lack of accountability.”

While Mexico is nowhere near as unstable as Afghanistan, it’s clear that there is an extremely corrupt relationship between its drug cartels and its local government officials. American troops are no better positioned to “fix” Mexico’s internal security issues than they were Afghanistan’s. That’s not what America should be using its military forces for, and it’s certainly not where we should be directing defense spending.

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Supreme Court nominee Robert Bork’s 1987 confirmation hearings “changed everything, maybe forever,” according to lawyer and Supreme Court blogger Tom Goldstein, because they “legitimized [the] scorched-earth ideological wars” that have since become the norm.

After the Senate rejected Bork, President Reagan turned to a 41-year-old judge named Douglas H. Ginsburg, a recent appointee to United States Court of Appeals for the District of Columbia Circuit. Ginsburg, unlike Bork, didn’t have a long judicial record for the Senate to pick over. 

It wasn’t to be. After admitting that he’d smoked pot once in the 1960s and “on a few occasions in the ’70s,” Ginsburg withdrew his name from consideration. Justice Anthony Kennedy ended up filling the vacancy.

Over the next three decades, Judge Ginsburg built a reputation as one of the most influential and principled champions of “originalism,” a legal theory that emphasizes close adherence to the text of the law and the explicit intentions of the legislators at the time laws are passed. Now a senior judge on the DC appellate court and a professor at George Mason University’s law school, Ginsburg stars in the forthcoming PBS series A More or Less Perfect Union, his “personal exploration” of the history and future of the Constitution in American life.

Nick Gillespie sat down with Ginsburg to discuss his new show and its companion book, Voices of Our Republic; why the impeachment proceedings against President Donald Trump are in no way a “constitutional crisis”; his opinions of Neil Gorsuch and Brett Kavanaugh; whether it’s possible to rein in the administrative state; and why he has never regretted pulling his name from Supreme Court consideration 32 years ago.

Camera by Jim Epstein. Edited by Ian Keyser and Meredith Bragg.

Photo credits:
CreditKen Cedeno/SIPA/Newscom
Oliver Contreras/Sipa USA/Newscom

Music from https://filmmusic.io
“Lightless Dawn” by Kevin MacLeod (https://incompetech.com)
License: CC BY (http://creativecommons.org/licenses/by/4.0/)

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