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Next week, my dual-citizen wife will take a previously unplanned five-hour flight from New York to a city out west, rent an expensive car (all car rentals are expensive nowadays), drive a couple of hours, spend the night at a hotel, then go to a first-thing-in-the-morning appointment at a State Department agency to receive her “expedited” U.S. passport renewal that she originally applied for more than three months ago.

This thousand-dollar detour, made necessary by our pending trip to see the in-laws in France (COVID having scrambled the ability for dual nationals to traverse freely between countries on just one of the two passports), has been playing out all over the country, as Americans with immovable travel dates scramble to deal with consular processing that has slowed to a crawl.

“Passport backlog surges to nearly 2.2M as applicants wait up to 24 weeks,” ran the headline this week at Fox News. “Those without a valid passport will likely need to delay any summer trips abroad.” A cruel fate for those who’ve been penned up at home for 16 months.

More infuriating still is that the paperwork logjam appears largely man-made, the result of government passport services that are still not fully reopened.

“It is clear that the 26 regional passport agencies and centers are not operating at full capacity to meet constituent needs,” Sen. James Lankford (R–Okla.) wrote in a scathing July 19 letter to Secretary of State Anthony Blinken. “I have heard from an unusually large number of constituents whose vacations, work trips, and honeymoons were cancelled due to these delays and did not receive adequate assistance from the Department of State, which is totally unacceptable.”

In a July 14 press briefing on the issue, Deputy Assistant Secretary for Passport Services Rachel Arndt insisted that, “We’ve been doing and continue to do everything we can to serve the American public while prioritizing the health and safety of our staff and of our customers,” and then proceeded to detail all the ways in which that statement is not true.

“As of July 12th, we had passport agencies where…all of the staff was returning…in 17 cities,” Arndt reported. “We have an additional five that we are anticipating approval to move to be completely open with all staff back in the office.”

Arndt’s explanation was filled with such present-participle verb tenses. “We are surging staff, both adjudicators and contractors, back into the office at agencies across the country as COVID restrictions ease….This summer we’re going to have over 150 staff returning to 21 agencies across the country, and that will increase our capacity to process applications more quickly. We are looking at surging back to pre-pandemic staffing levels,” etc.

Do you know who is back in the office, unlike State Dept. employees who’ve had access to COVID vaccines longer than most of the rest of us? Scores of millions of Americans, including many who would like to visit their relatives for the first time in a year and a half. Compounding that failure to put asses back in office chairs is the fact that, as Arndt says, “passport specialists need to be physically present in the office to process the passports. They are not processing remotely or from home.”

Field offices for members of Congress from both parties are overwhelmed with desperate constituent requests for help. “The State Department must get their employees back to work to handle the backlog,” Rep. Nicole Malliotakis (R–Staten Island) said in a statement July 10. “That is the message my colleagues and I keep reinforcing.” Senate Majority Leader Chuck Schumer (D–N.Y.) is calling for emergency personnel.

Normally, passport issuances and renewals take four to six weeks. In my wife’s case, it took more than a month after sending in her application for Passport Services to even cash her $140 check. Those, like her, who are panicky about receiving legal documentation in time for an already paid-for flight, are invited to shell out an additional $60 to allegedly speed things through. When that fails, and there are only 10 business days left before your departure date, you can jump on the State Department website (preferably after midnight) and mash the refresh button, or brave the multi-hour hold music on the phone, until you are granted an appointment in whatever far-flung field office has available space within the last, nail-biting 72 hours before takeoff.

Unsurprisingly, there have proliferated several Facebook and Reddit groups dedicated toward hacking the phone tree or facilitating third-party workarounds (such as, people reserve appointments, then transfer them…though the State Department is naturally trying to crack down on that practice). Basically, in addition to the thousand-dollar price tag and multi-day time-suck, you can count on at least a dozen hours of research/hold time wasted, plus the attendant anxiety that comes with it all. And that’s for the people lucky enough to not have to cancel their summer vacations.

One of the key chokepoints in the process is the initial “lockbox” phase, when an application is received at a secure location, assigned a tracking number, then forwarded to the main processing office. This process, which is overseen by the Treasury Department and outsourced to Citibank, usually takes 24 hours. But according to Sen. Lankford, “In a June 30 memo to Congressional staff, the [Treasury] Department stated, ‘Treasury-operated Citibank lockboxes…have been experiencing operational issues.…Service partner operational delays are currently up to six weeks after the passport was mailed.'”

An anonymous Citibank spokesperson told Fox News that the delays were attributable to COVID precautions and staffing shortages.

Added Lankford: “The delay from one day to six weeks in the lockbox phase of the process is entirely unacceptable….If Citibank and other partners are not fulfilling their obligations to the taxpayers in a satisfactory manner, I would support a search for alternative contractors for this phase of the process who can get the job done. Additionally, if the cause of these ‘operational issues’ is outdated social distancing requirements or other COVID-related restrictions that are no longer required by local mandates or CDC guidance, the policy for these personnel must be updated to ensure maximum productivity.”

Asked about the contracting problem, Arndt responded with a lot of present-participle.

“In addition to surging our staff for both contract and government, we are expanding our overtime work at all locations and we are continuing to increase the number of appointments available at all of our public passport agencies and centers,” she said. “And then we are also working with our partners to expand staffing capacity at the front end for processing at our lockbox facilities.” Swell.

So cross your fingers that the two million U.S. citizens waiting for travel documents can somehow wheedle them into existence before they leave the country. And if you or your family members have passports that are within one year of expiring, better start hurrying now. Because the government certainly isn’t.

“People who submit new passport applications right now will not get their new passport until well into the fall,” Arndt said. “U.S. citizens who wish to travel overseas this summer and do not currently have a passport may need to make alternate travel plans.”

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Federal judges Wednesday blocked new laws in Arkansas and West Virginia that sought to limit how transgender students’ participation in school sports and prohibit parents and professionals from providing transgender minors with medical treatments.

West Virginia lawmakers passed H.B. 3293 in April. The bill requires students who wish to participate in sports events to be classified on the basis of their biological sex, specifically so that trans girls (who were born male but identify as female) cannot compete as females. The law is written so that it doesn’t stop trans boys from competing with biological males. That will become relevant later.

Arkansas lawmakers, meanwhile, passed an anti-trans bill in April that forbids health professionals from prescribing any sort of medical treatment (like puberty-blocking hormones) to trans teens, even with the support of the parents. The bill, H.B. 1570, went so far as to forbid doctors from referring minors to other doctors (presumably in other states) who would provide such treatments and threatened to revoke the licenses of any medical professionals who defied the law. Republican Gov. Asa Hutchinson vetoed the bill, but lawmakers overruled him.

Both laws have been temporarily blocked by different federal judges. In West Virginia, the American Civil Liberties Union filed suit on behalf of an 11-year-old trans girl who wants to participate in her middle school’s cross-country racing team. In Arkansas, the ACLU filed suit on behalf of four trans youths and their families and two doctors.

In West Virginia, U.S. District Judge Joseph R. Goodwin of the U.S. District Court for the Southern District of West Virginia found that it was likely the plaintiff would win the case under the argument that the state had violated her equal protection rights under the 14th Amendment and had violated Title IX of the Education Amendments of 1972. Therefore he ordered an injunction stopping H.B. 3293 from being enforced as the case works its way through the court system. He wrote:

[P]ermitting B.P.J. to participate on the girls’ teams would not take away athletic opportunities from other girls. Transgender people make up a small percentage of the population: 0.6% of the adult population generally, and 0.7% of thirteen- to seventeen-year-olds. … The number of transgender people who wish to participate in school-sponsored athletics is even smaller. Insofar as I am aware, B.P.J. is the only transgender student at her school interested in school-sponsored athletics. Therefore, I cannot find that permitting B.P.J. to participate on the girls’ cross country and track teams would significantly, if at all, prevent other girl athletes from participating.

He adds that the argument that a ban on trans girls competing with biological girls in order to protect girls’ safety fails because the plaintiff was not asking to participate in a contact sport. Goodwin concludes that the girl is being discriminated against on the basis of her sex in the same way the Supreme Court ruled in Bostock v. Clayton County that workplace discrimination against gay and trans workers is discrimination on the basis of sex. And because the law explicitly permits trans boys to continue competing with other boys, Goodwin notes that everybody else gets to compete on sports teams on the basis of their chosen identity except for the plaintiff and other trans girls, making it a discriminatory policy.

In Arkansas, U.S. District Judge James M. Moody Jr., of the U.S. District Court for the Eastern District of Arkansas, granted a preliminary injunction in a bench decision Wednesday afternoon stopping the enforcement of Arkansas’ ban on medical treatment for trans minors. This is not his final decision in the case. Rather, the injunction will allow parents and families to continue seeking medical treatment while he considers his ruling. The law was scheduled to go into effect later this month, and the ACLU and parents argued that it would force them to cut off medical treatment their trans children were already receiving.

These rulings follow on the heels of one of the dumber new anti-trans laws being blocked earlier this month. Tennessee lawmakers in May passed a law ordering private businesses to hang up warning signs if they allowed trans people to use the bathrooms of their chosen sex rather than their biological sex. Businesses who were found violating the sign law faced misdemeanor penalties under the state’s building codes.

Two business owners, again represented by the ACLU, filed suit, arguing that this sign demand violates their First Amendment rights by mandating speech. U.S. District Judge Aleta A. Trauger of the U.S. District Court for the Middle District of Tennessee, Nashville Division, ruled that the plaintiffs were likely to succeed on the claims and granted a preliminary injunction stopping enforcement of the law.

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A raid on a Maryland adult bookstore in May resulted in some potentially unconstitutional arrests of three men for violating the state’s partially repealed sodomy law.

On Tuesday, the Washington Blade reported that back in May, the Hardford County Sheriff’s Office arrested nine people when it raided Bush River Books & Video store in Abington, just north of Baltimore.

Of those nine, only three men were charged with perverted sexual practice. Another four were charged with indecent exposure, one was charged with indecent exposure and perverted sexual practice, and one person was arrested for solicitation of prostitution. The statement the sheriff’s office gave the Blade says that one of their undercover female officers was solicited by one of the bookstore’s patrons.

“I went inside and was hooking up with someone and the next thing I know, eight of us were against the wall with handcuffs with plastic zip ties on them,” one of the men arrested told the Blade. “And we all spent the night in jail. I was released at like six o’clock in the morning.”

The bookstore has long been a subject of neighborhood complaints and police attention.

The Baltimore Sun reported that the sheriff’s office had started conducting “spot checks” at the bookstore in late 2011, which periodically resulted in arrests of patrons for indecent exposure. One such check also found holes cut into the walls separating private video viewing booths, a violation of the county’s building code.

“It really deters other businesses, especially upscale businesses, from opening, and really deters the revitalization process in that area,” said John Paff, the head of the Bush River Community Council to the Sun in 2012. A Change.org petition launched in June 2020 demands that the county “shut down this nuisance to our neighborhood.” It’s thus far received 169 signatures.

Similar NIMBY complaints appear to have motivated the most recent raid on the Bush River bookstore.

“In the past several months, we have received an increased number of concerns and allegations of a wide variety of illegal activity occurring at Bush River Books and Video,” the Sheriff’s office said. “We take all citizen concerns seriously, and there is an active investigation into these concerns.”

The arrested men have a trial date in August. Those charged with perverted sexual practice, however, might be able to get off.

The U.S. Supreme Court ruled in 2003’s Lawrence v. Texas, that sodomy laws criminalizing private sexual behavior were unconstitutional. In 2020, Maryland’s legislature also partially repealed the state’s law criminalizing sodomy. The text of the repeal bill, however, shows that it left in place various references in the state’s criminal code to “unnatural or perverted sexual practice.”

Greg Nevins, senior counsel for Lambda Legal, a gay rights public interest law firm, told the Blade that the Lawrence ruling should offer protection to the men charged with committing sex acts in a private, locked video viewing booth, comparing it to a couple having sex in a rented hotel room.

Constitutional issues aside, there’s also the libertarian case to be made that businesses should be free to allow whatever kind of consensual sexual activity they want on their own property.

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In U.S. v. Broadfield, decided yesterday by the Seventh Circuit (in an opinion by Judge Easterbrook, joined by Judges Kanne and Kirsch), the court considered a prisoner’s claim for “compassionate release under 18 U.S.C. §3582(c)(1)(A). For a prisoner who is younger than 70, this relief depends on a finding that ‘extraordinary and compelling  reasons warrant such a reduction.'” The court discussed some specific details of the case, but also added this more general point:

When Broadfield filed his application for compassionate release, and when the district judge denied it, COVID-19 was a grave problem in America’s prisons, where people cannot engage in social distancing. Today, however, effective vaccines are available…. The Bureau of Prisons reports that 1,300 prisoners at FCI Seagoville, where Broadfield is confined, have been fully vaccinated against COVID-19. This is short of the prison’s full population of roughly 1,700, but some may have been vaccinated before arrival, while others may have declined the opportunity.

Broadfield has not contended that he wants to be vaccinated but that the Bureau of Prisons has failed to inoculate him. Because risk of COVID-19, which can bear especially hard on people with pre-existing breathing conditions, is Broadfield’s sole reason for seeking compassionate release, a remand would be pointless. Vaccinated prisoners are not at greater risk of COVID-19 than other vaccinated persons. (A more cautious statement would be that published data do not establish or imply an incremental risk for prisoners—either a risk of contracting the disease after vaccination or a risk of a severe outcome if a vaccinated person does contract the disease.) And a prisoner who remains at elevated risk because he has declined to be vaccinated cannot plausibly characterize that risk as an “extraordinary and compelling” justification for release. The risk is self-incurred.

In a supplemental filing after oral argument, Broadfield informed us that he was offered a vaccine but declined. He maintains that he fears an allergic reaction, but he does not contend that he has suffered such a reaction to any other vaccine. The Bureau of Prisons’ policy statement provides that prisoners with a history of allergic reactions to vaccines will receive extra evaluation before vaccination and additional observation afterward, but Broadfield does not come within this category…. The federal judiciary need not accept a prisoner’s self-diagnosed skepticism about the COVID-19 vaccines as an adequate explanation for remaining unvaccinated, when the responsible agencies all deem vaccination safe and effective.

Section 3582(c)(1)(A) was enacted and amended before the SARS-CoV-2 pandemic, and it will continue to serve a beneficent function long after the pandemic ends. But for the many prisoners who seek release based on the special risks created by COVID-19 for people living in close quarters, vaccines offer relief far more effective than a judicial order. A prisoner who can show that he is unable to receive or benefit from a vaccine still may turn to this statute, but, for the vast majority of prisoners, the availability of a vaccine makes it impossible to conclude that the risk of COVID-19 is an “extraordinary and compelling” reason for immediate release.

Thanks to Howard Bashman (How Appealing) for the pointer.

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