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The Paycheck Protection Program—the $349 billion stimulus loan program intended to help struggling small businesses amid COVID-19 shutdowns—will run out of money today, according to a new report from The Wall Street Journal.

As of Wednesday afternoon, the Small Business Administration (SBA) had approved about 1.4 million loan applications totaling $301 billion in funding. The remaining $48 billion is expected to be exhausted Wednesday, with congressional Republicans and Democrats currently negotiating a deal to make additional funding available.  

Both parties are amenable to funneling another $250 billion toward the loan program, though Democrats have said they will only move forward if the proposal doubles that sum and uses the remaining money for state and local governments as well as hospitals.

“Democrats will not stop fighting for money for small businesses, and hospitals, and testing, and our state and local governments, and more to help fight coronavirus,” tweeted Senate Minority Leader Chuck Schumer (D–N.Y.) on Monday.

House Speaker Nancy Pelosi (D–Calif.) wants to add additional stipulations to the small business program that would seek to help rural and minority-owned businesses as well as small firms.

The loan program got off to a rocky start, with the SBA E-tran site crashing and banks confused about loan terms. That’s understandable considering the speed with which the program was created and that financial institutions were given loan terms 12 hours before the Paycheck Protection Program officially launched on April 3. 

But the condensed timeline and the first-come-first-serve nature of the program means that many small businesses have been shut out from receiving funding. Several banks initially declined applications from prospective borrowers who did not have a previous history with their institutions. Bank of America, which received the biggest blowback for doing so, eventually relented but required that applicants not have a borrowing relationship with any other institution.

Restaurants, hit exceedingly hard by coronavirus-related social distancing, have come out on the losing end of the application process. Hotels have also struggled, although some have criticized large chains’ ability to make use of the small business stimulus: The Paycheck Protection Program carved out an exception for the hotel and restaurant industries, allowing bigger companies to apply for loans so long as they employ less than 500 employees at each physical location.

Businesses that do receive loans may find it difficult to have them forgiven, as they are only eligible for loan forgiveness if they use 75 percent of the funds on payroll expenses. (The original stipulation in the Paycheck Protection Program was 50 percent, but the Treasury Department altered it after the fact.) That will be exceedingly hard for business owners to do when they have no business and rent to pay.

For now, lawmakers are focused on making sure that eligible small businesses aren’t shut out altogether. Sen. Marco Rubio (R–Fla.), Chairman of the Senate Committee on Small Business and Entrepreneurship, said that participating banks are no longer operating under vague terms, but that they have a shortage of such lenders. “That’s why we created path to bring in new lenders, including non-bank lenders,” he tweeted. “To create more access for #smallbusiness we need to speed up bringing in new lenders ASAP.”

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When The New York Times launched its 1619 Project last year, it sought to “reframe the country’s history by placing the consequences of slavery and the contributions of black Americans at the very center of our national narrative.” What began as a series of articles and commentaries in the Times magazine morphed into a collection of lesson plans for elementary and high school students and provoked an immediate controversy.

Five of the nation’s most eminent academic historians co-signed a letter to the Times describing the project as “partly misleading” and containing “factual errors.” And Northwestern University Professor Leslie M. Harris revealed that she had been a fact-checker on the series and that her warnings of a major error of interpretation had been ignored. But Harris also took “detractors of the 1619 Project” to task for “misrepresent[ing] both the historical record and the historical profession,” writing that the “attacks from its critics are much more dangerous” than the Times‘ “avoidable mistakes.”

Enter Phillip W. Magness, an economic historian, a research fellow at the American Institute for Economic Research, and the author of a new collection of essays on the project. Magness praises aspects of the series but he says that the project’s editor, Nikole Hannah-Jones, is guilty of blurring lines between serious scholarship and partisan advocacy. And he has called for the retraction of an essay in the series by Princeton sociologist Matthew Desmond, which was headlined, “In order to understand the brutality of American capitalism, you have to start on the plantation.”

Nick Gillespie spoke with Magness from his office in Great Barrington, Massachusetts, about what the Times gets right and wrong about U.S. history, capitalism and slavery, Abraham Lincoln’s contested legacy, and why our interpretation of American history matters to contemporary society.

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In response to the coronavirus pandemic, governments at all levels have enacted a host of policies that potentially threaten constitutional rights or butt against structural limits on government power. Numerous cases have been filed challenging some of these policies, arguing that they violate the First Amendment, the Second Amendment, constitutional protection for abortion rights, the Takings Clause, and other provisions of federal and state constitutions.

In reviewing such challenges, should courts opt for “regular,” relatively nondeferential judicial review, or should they give the government broad deference, so long as there is a minimally plausible emergency rationale for the challenged policy? In an insightful recent post at the Harvard Law Review blog, legal scholars Lindsay Wiley and Steve Vladeck make a strong case for the former approach:

Not surprisingly, local and state government orders aimed at mitigating the spread of novel coronavirus have already provoked a series of objections grounded in civil liberties. Just as quickly, courts entertaining challenges to these orders have stumbled into the central (and long-running) normative debate over emergency powers: Should constitutional constraints on government action be suspended in times of emergency (because emergencies are “extraconstitutional”), or do constitutional doctrines forged in calmer times adequately accommodate exigent circumstances?

In one of the first challenges to a coronavirus emergency order, New Hampshire defended Governor Christopher Sununu’s emergency order banning gatherings by arguing that “[a] court should only interfere” with “[a]n executive’s decision to exercise emergency powers in the face of a rapidly evolving public health crisis. . . . when the executive’s actions were not taken in good faith or if there is no factual basis for the executive to believe that a restriction he imposed was necessary…”

n an essay forthcoming in the Harvard Law Review Forum, we argue that the mitigation strategies adopted in response to the coronavirus pandemic highlight three central problems with the “suspension” approach to judicial review of crisis powers. First, like the Constitution’s explicit “suspension” power, which prohibits Congress from suspending the writ of habeas corpus “unless when in Cases of Rebellion or Invasion the public Safety may require it,” the suspension principle adopted by judges in some crisis powers cases is inextricably linked to the idea that the crisis is of finite — and limited — duration…. But in a public health crisis like the coronavirus pandemic, when the restrictions are designed to slow the progress of the epidemic (and there might therefore be a relationship between the efficacy of the restrictions and the duration for which they will be needed), the stopgaps are potentially indefinite. Allowing for the suspension of more rigorous judicial review in such circumstances therefore risks allowing the exception to swallow the rule…

Second, and relatedly, the suspension model presupposes that “ordinary” judicial review will judge government actions in a crisis too harshly — and, in the process, risks handicapping the government’s response. Here, too, the coronavirus pandemic provides a useful (if still-unfolding) counterexample: Even if curtailments of liberty — from business closures to shelter-in-place orders to quarantine orders for travelers — are subjected to the normal scrutiny arising from comparable government incursions into civil liberties, they are likely to be upheld. Every level of government has an unquestionably compelling interest in preventing the spread of a highly contagious (and often lethal) disease. To similar effect, if that compelling interest can be reasonably vindicated through less restrictive measures that are equally available to the government at the same time, it hardly undermines the government’s response to require it to pursue them….

Finally, and perhaps most importantly, the suspension model wholly discounts the independent checking function of courts in a crisis — as perhaps the only institution that is in any structural position to push back against potential overreaching by the local, state, or federal political branches. By subjecting government incursions on civil liberties to meaningful judicial review, courts force the government to do its homework — to communicate not only the purposes of its actions, but also how the imposed restrictions actually relate to and further those purposes….

All three of these points strike me as both important and valid. I would add that imposing normal judicial review on emergency measures can help reduce the risk that the emergency will be used as a pretext to undermine constitutional rights and weaken constraints on government power even in ways that are not really necessary to address the crisis.

In many countries around the world, authoritarian leaders are using the pandemic as an excuse to expand their power and crush dissent. Liberal democracy is more firmly entrenched in the US than in countries like Hungary, where Prime Minister Viktor Orban has exploited the crisis to consolidate authoritarian rule. But it would be naive to imagine we are immune from the tendency of governments to exploit crises for their benefit. To the contrary, we too have a long history of crises being used to undermine constitutional rights, subvert limits on government power, and target unpopular minorities. The notorious internment of Japanese-Americans during World War II is just one of many examples.

The fact that the coronavirus crisis is a genuinely serious threat to public health does not mean it can’t be exploited in similar ways. World War II was a genuine crisis, too. Indeed, the genuinely severe nature of the crisis may actually make the threat of exploitation even greater, as the severity of the danger makes Americans more willing to sacrifice constitutional rights to address it, and less likely to closely scrutinize government actions enacted in response.

As Wiley and Vladeck point out, many, probably even most, emergency measures will be upheld even under ordinary judicial review. Given the severity of the threat, they can pass even a high level of scrutiny. But maintaining normal judicial review reduces the risk of pretextual policies, and helps ensure that even well-intentioned ones do not overreach.

One standard critique of nondeferential judicial review in such situations is that judges may lack the specialized expertise needed to assess emergency policy. Few if any judges have expertise in epidemiology or public health. But anti-coronavirus policies are, in most cases, enacted by politicians who themselves are not experts. They can, of course, rely on advice provided by such experts. But the same is true of judges exercising the power of judicial review, who routinely consider testimony and other evidence submitted by experts of various kinds. If the government’s policies really are based on strong scientific evidence, then they should be able to prove that in court.

If lack of technical expertise were a justification for suspending normal judicial review, it would apply to a vast range of cases, not just challenges to public health policies. The same rational can be (and often is) used to justify broad deference in the fields of immigration, national security policy, and almost any other government that addresses a complex issue. I explain in greater detail why such arguments should be rejected here.

The emergency argument for judicial deference should be distinguished from claims that some constitutional rights claims are just generally wrong, or that the right in question generally deserves little judicial protection. Many conservatives, for example, take that view of abortion rights, and many on the left have a similar view when it comes to gun rights.

If you believe that gun rights claims or abortion rights claims are wrong irrespective of whether there is a public health emergency going on, then by all means make that argument. But we should resist the temptation to claim that rights claims we dislike should be excluded from normal judicial review because of the need to defer to the government’s judgment in emergency situations. The same rationale can easily be used to gut judicial protection for rights you do care about. Those who live by the sword of special deference in emergency situations can all too easily die by it.

Wiley and Vladeck’s analysis and my extensions of it do not by themselves tell us how any particular legal challenge to coronavirus emergency measures should be resolved. That will depend on the arguments and facts in each case. But they do explain why courts should not abjure normal judicial review in favor of broad deference to emergency measures.

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Rep. Justin Amash (I-Mich.) this morning completed his three-stage transition from not ruling out a Libertarian Party presidential bid, to hinting coquettishly at the necessity of a third approach to national politics, to now calling direct attention to his White House deliberations.

“In mid-February, Justin Amash paused active campaigning for his congressional seat to carefully consider a presidential run,” his office emailed to reporters this morning. “He has been discussing the potential campaign with his family, his friends, his team, and others, and a decision can be expected soon.”

The libertarian congressman now has 35 days to decide whether he is ready to navigate the idiosyncrasies of America’s bronze-medal party and potentially subject himself to a half-year’s worth of bottomlessly funded abuse from Democrats and Republicans busy whipping themselves up in a hate bath of negative polarization.

There are many unanswered questions that Amash, Libertarians, and Americans writ large have occasion to ponder in connection with a putative campaign. Here are four:

1) What impact would an Amash candidacy have on Trump vs. Biden?

Libertarians, Greens, independents, and nonvoters hate this question—who says my vote belongs to anybody, man??—yet sadly or fortunately, we neither run the world nor shape its political discourse. This will be the main consideration about an Amash run against a president who is loved by Republicans and loathed by much of everyone else. What scant preliminary evidence we have on the question is…mixed.

A May 28-30, 2019 Glengariff Group poll of 600 likely Michigan voters found Amash receiving 10 percent in his home state, compared to 45 percent for Joe Biden and 39 percent for Donald Trump, with 6 percent undecided. Intriguingly, Biden’s six-point advantage doubled to 12 with the Amash option taken out.

Could it be that pro-Trump fervor eclipses its anti-Trump opposite? That Biden’s vaunted enthusiasm gap makes third-partiers—especially one who was among the most persuasive voices in Congress in favor of impeachment—more tempting for nose-holding voters on the left? There just hasn’t been enough polling on which to base an educated guess.

A GQR Research survey of 1,700 registered voters nationwide conducted in July of 2019 found Amash getting 7 percent, behind Biden’s 49 and Trump’s 41 (2 percent elected other). The question was not asked without the prospective Libertarian on the ballot. The same company presented 775 likely voters with the same choices Sept. 7-11, 2019, and got 48 percent for Biden, 41 percent for Trump, and 4 percent Amash, with 5 percent other/undecided.

So the last presidential poll that even had Amash’s name in it was taken more than four months before the Iowa caucus and a lifetime before the coronavirus miasma we find ourselves swimming in now.

2) Does he really have a puncher’s chance?

This is where opinions will vary the widest. The positive case looks something like this:

Amash, who turns 40 on Saturday, would be competing against the two oldest major-party presidential nominees in United States history. He is quick-witted and energetic; they are…Joe Biden and Donald Trump. Of the two old white guys, one made a lifetime of outgroup-unfriendly gaffes, the other has choked off the inflow of refugees and demonized people from various “shithole” countries. Amash, by contrast, is the overachieving son of two Middle Eastern immigrant success stories, one of whom was a Palestinian refugee.

It’s not just personality that makes this path, it’s context. We are only beginning to feel the ripple effects from the coronavirus, which are certain to get much worse. The 2008 financial crisis and policy response thereof produced not just one but two backlash political movements (the Tea Party on the right, Occupy Wall Street on the left); the rescue package passed last month is already more expensive on a per-capita basis than the 2008-2009 bailout/stimulus combined.

The persistently unpopular Trump, after effecting a hostile takeover of the GOP in 2016, continues to forge a Republicanism antithetical to traditional conservative values. Sen. Bernie Sanders (I – Vt.) may have failed twice now to take over the Democratic Party, but the unlovable centrists who bested him have been effectively saddled with most of his bad economics and almost none of his movement’s enthusiasm.

Weak, increasingly statist parties led by off-putting ancients—why, it’s like they’re saying “Run, Justin, run!” Surely, he will tip the scales in the swing state of Michigan!

OK, that’s the positive case for Amash to greatly improve on Gary Johnson’s 3.27 percent from 2016. What’s the counter-argument?

Basically, this: The conditions for nontraditional candidates in times of high negative polarization are particularly brutal, as we saw in the 2018 midterms. This is particularly true in cycles immediately following a razor-thin presidential race. Even people who love Amash are going to be begging him not to run if there is any chance of him impeding the all-or-nothing quest to drive Trump out of the White House.

3) Would he even win the Libertarian nomination?

While opinions vary here as well, and Libertarians don’t take too kindly to coronations, my money is on yes, as I explain in this article today in The Dispatch.

An interesting parallel question is how Amash—or anyone else—will win, given the Libertarian Party’s coronavirus conundrum, which is: The party makes 100 percent of its nominating decision by voting in person at the quadrennial convention, yet it’s unclear at the moment whether that physical gathering will be allowed to take place next month in Austin.

“Currently, the plan for the 2020 Libertarian National Convention that is still in place is to convene in Austin, Texas at the JW Marriott on May 22nd,” the convention web page updated yesterday. “This can and likely may change. We have been continually monitoring the situation through posted government orders, and have been communicating with both the venue and the Austin Convention and Visitors Bureau. It has been communicated to us that the JW Marriott in Austin plans to reopen May 8th, and that as current orders stand, they will be fully operational for our convention.”

Libertarian Party Executive Director Daniel Fishman told The Dispatch Tuesday, “Many of our delegates have already had flights canceled….One way or another, I’m pretty sure that we’re going to not be allowed to have our convention in Austin.” The party will reassess on May 2.

4) Does this mean Amash has given up on winning re-election as an independent?

Don’t be so sure. Amash out-fundraised his Democratic and Republican opponents in the fourth quarter of 2019. On one hand, he faces the difficult obstacle of competing in one of the few states that has the straight-ticket ballot option, by which voters can check one box to vote for every candidate from a given party (“Straight-ticket voting makes it prohibitive to run outside of the major parties,” Amash told me in 2018). On the other hand, he enjoys the power of incumbency and has both the track record and cockiness of someone who has won one election after another in his district.

At the risk of taking a politician at least somewhat at his word, I reckon that Amash’s calculation here in these final decision-making days is the same as he told Nick Gillespie way back in the summer of 2019, multiplied by the exponential power of the coronavirus: “If I can be most effective on the national stage spreading the message of liberty and the message of respect and love, then that’s what I do.”

You can watch that interview here:

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