Sen. Mitch McConnell (R–Ky.) took to the Senate floor this morning to inveigh against what he called the “most rushed, least thorough, and most unfair impeachment inquiry in modern history.”
“Last night, House Democrats finally did what they have decided to do a long time ago,” said McConnell. “They voted to impeach President Trump.” The majority leader’s speech echoed weeks of House GOP objections, accusing Democrats of searching for an impeachable offense before Trump even clinched the 2016 Republican presidential nomination.
It is the “first purely partisan presidential impeachment since the wake of the Civil War,” McConnell lamented. “Opposition to impeachment was bipartisan.” The latter notion has become a go-to talking point among the GOP, although it neglects the fact that Justin Amash (I–Mich.), a founder of the House Freedom Caucus, left the Republican Party just last July in part over its unwillingness to grapple with what he sees as Trump’s clearly impeachable offenses.
Two Democrats voted against the first article of impeachment and three voted against the second. One of the Democrats who voted against both, Rep. Jeff Van Drew (D–N.J.), has announced that he will leave the party and become a Republican.
McConnell tried to throw cold water on both of the articles, reducing the first charge—abuse of power—to what he says is a mere contempt on behalf of Democrats for Trump’s style of governance.
“The Framers of our Constitution very specifically discussed this issue—whether the House should be able to impeach the president just for maladministration,” said McConnell. “In other words, because the House simply thought the president had bad judgement or was doing a bad job.”
Amash has argued that this comparison doesn’t stand historical scrutiny. “[Alan] Dershowitz and many Rs have tried to conflate maladministration and abuse of power,” he tweeted on Monday. “The Framers rejected maladministration—being ineffective or inefficient—as grounds for impeachment. In contrast, they saw abuse of power as central to the meaning of high crimes and misdemeanors.”
McConnell also claimed that impeachment should turn on “clear, recognizable crimes.” That is historically inaccurate as well: “High crimes and misdemeanors” includes abuses of power, and even McConnell conceded this morning that meeting a criminal threshold is not a requirement for impeachment.
As for obstruction of Congress, McConnell likens the charge to impeaching the president “for asserting presidential privilege.” Democrats argue that Trump inappropriately stonewalled their investigation when he blocked the release of requested documents and forbade several key witnesses—such as acting Chief of Staff Mick Mulvaney, Secretary of State Mike Pompeo, and former National Security Advisor John Bolton—from testifying.
“That’s not a constitutional crisis,” said McConnell. “It’s a routine occurrence.”
The Kentucky senator criticized Democrats for what he says is a hasty rush forward. If the majority party wants to parse the information currently being obstructed by Trump, he said, they should take the issue to the courts, which may lead to documents being released and witnesses compelled to testify. McConnell isn’t wrong here. As Jacob Sullum points out, the evidence as it stands may implicate Trump, but the record is almost certainly too thin at present to lure anyone from their partisan vantage points.
Democrats “chose to stick to their political timetable at the expense of pursuing more evidence through proper legal channels,” said McConnell.
Looking to the future, he told Senate President Pro Tempore Chuck Grassley (R–Iowa) that Democrats are on the precipice of taking “unbelievable new power to paralyze the Senate at their whim.” (The legislative body already has a strong record of doing that on its own, regardless of who is in charge.)
That crippling threat, McConnell declared, will come because Democrats were “willing to trample our constitutional order to get their way,” leading to what he sees as a future string of never-ending impeachments. And it is only the Senate, McConnell argued, that is equipped to effectively and impartially check “violent factionalism.”
“The moment the framers feared has arrived,” he said. “A political faction in the lower chamber has succumbed to partisan rage.” In the Federalist Papers, McConnell noted, Alexander Hamilton warned of an impeachment “regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.” Few would dispute that partisanship has driven much of the impeachment process, but that phenomenon hardly seems unique to Democrats.
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Last night, I wrote a three-part series on the Fifth Circuit’s ACA decision. I agree with much of the opinion. But on further reflection, I agree with a criticism from co-blogger Steve Sachs and Nick Bagley: Footnote 3 is inappropriate.
It provides:
Some opponents of the ACA assert that the goal was not to lower health insurance costs, but that the entire law was enacted as part of a fraud on the American people, designed to ultimately lead to a federal, single-payer healthcare system. In a hearing before the House Committee on Oversight and Government Reform, for example, Representative Kerry Bentivolio suggested that Jonathan Gruber, who assisted in crafting the legislation, had “help[ed] the administration deceive the American people on this healthcare act or [told] the truth in [a] video . . . about how [the Act] was a fraud upon the American people.” Examining Obamacare Transparency Failures: Hearing Before the H. Comm. on Oversight and Government Reform, 113th Cong. 83 (2014) (statement of Rep. Kerry Bentivolio).
The footnote accurately quotes a Committee Report about Obamacare. But there is no reason to include this passage, or to explain what “some opponents of the ACA” thought. This footnote–an unforced errror–takes away from the otherwise sober approach of the decision.
Recently, another member of the Fifth Circuit, Judge Don Willett, reconsidered his opinion in an important First Amendment case. The majority here should remove Footnote 3 from the final published opinion.
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Over at the New York Times, I have an op-ed on Article II of the impeachment of President Trump. This article charges the president with obstruction of Congress because of his refusal to provide witnesses and documents to the House as part of its impeachment inquiry.
The House Democrats have not done a particularly good job of laying the groundwork for this article. They devoted hardly any time in congressional committees to the issue of presidential obstruction. They largely ignored it in their presentation of the president’s misconduct. They muddied the waters by also pursuing a lawsuit hoping the courts will weigh in in favor of their right to this material. They are “threatening” to sit on the articles of impeachment unless the Republicans agree to hear in trial the very testimony that forms the basis of the obstruction charge.
Nonetheless, the president’s unusual and extreme defiance of Congress demands a response if Congress is going to be able to preserve its own constitutional prerogatives. Impeachment is not the only possible response to such obstruction, but it is a possible response. Hopefully, the Republicans in Congress will not succumb to the temptation to defend the president by arguing that it is actually a good thing for a White House to engage in blanket obstruction of congressional oversight, up to and including impeachment inquiries.
Here’s a taste:
The White House has claimed that it is not for Congress to question how executive officers are conducting their duties, but rather that it is for the executive to judge whether legislators are performing theirs — and to ignore, stonewall and obstruct Congress when the executive is not satisfied with the answer. In doing so the Trump administration is, in effect, seeking to undo the constitutional checks put in place at our founding.
Josh and Ilya have already analyzed the Fifth Circuit’s ACA opinion; I’ll add three more points.
1. The good. The decision is a real step forward on severability. It’s rightly skeptical of the claim that the 2017 Congress, when it dropped the mandate penalty to $0, feared the entire 900-page statute would crumble unless people felt compelled to buy insurance anyway. In particular, the court noted that the 2017 Congress “was able to observe the ACA’s actual implementation,” so it wasn’t bound by an earlier Congress’s assumptions of how important the mandate would be. The district court should never have found the entire statute inseverable, and sending the case back down for a redo is a good result.
(There’s much more to be said about the government’s incoherent position on severability. The DoJ maintains that the statute is wholly inseverable—that no part of the Patient Protection and Affordable Care Act of 2010, Pub L. No. 111–148, 124 Stat. 119, is actually valid law—and also that U.S. attorneys may still bring criminal prosecutions for false-statement offenses created solely by that Act. The enforce-what-you-claim-isn’t-law approach was wrong when the Obama administration did it in Windsor, and it’s wrong when the Trump administration does it here. The government says the judgment in this case should only address the plaintiffs’ injury, and not unrelated things like false-statement offenses; but the issue is the legal position of the United States, not the scope of this particular judgment. If the statute really is inseverable, then the criminal defendants all can make the same arguments the government does here, and on the government’s view they ought to win.)
2. The bad. The decision is a step backward on individual standing. There’s a lot wrong with modern standing doctrine, but the court’s individual-standing analysis takes us further down the wrong road. The opinion, as Josh describes, argues that the plaintiffs really are disadvantaged by the mandate: they’re legally obliged to buy insurance when they don’t want to. I don’t disagree; people ought to take their legal obligations seriously, even if there aren’t any penalties attached. (NB: if anyone were ever injured as a proximate result of the plaintiffs’ failure to carry health insurance, this breach of legal duty might be held negligence per se.)
But the Fifth Circuit was asking the wrong question. It asked whether the plaintiffs need protection from the statute, when it ought to be asking whether they need protection from the defendants. After all, the defendants in this case are the United States and various agencies and government officials. Putting sovereign immunity issues aside, what exactly are the plaintiffs afraid that the IRS or the HHS Secretary will do to them? Sue them for $0? Charge them an extra $0 in taxes? I can’t remember who’d first used this line, but it strikes me that the plaintiffs’ quarrel is with the statute book, not with the defendants.
Elsewhere the court cites Jonathan Mitchell’s great paper on the “Writ of Erasure” fallacy. Mitchell explains that courts don’t really ‘strike down’ statutes, stripping them out of the U.S. Code. They simply decline to apply invalid provisions in particular cases and controversies already before them. So if there’s nothing these defendants are going to do to the plaintiffs, there’s no reason to award a judgment against them—and no reason to file a declaratory-judgment action if there’s no conceivable enforcement action either. (Cf. the Bray/McConnell/Walsh amicus brief.)
The same problem infects the court’s state-standing analysis. The state plaintiffs say their employees’ compliance with the mandate increases their costly reporting obligations. That may be true, but what do these defendants have to do with it? What the states seem to want from the court is a really reassuring advisory opinion, one that would convince their employees that it’s safe to ignore the mandate. But that doesn’t make the opinion any less advisory. My civ pro students would really have liked a court’s reassurance about Hanna and Shady Grove in time for their exam, but that’s not grounds for a lawsuit.
3. The ugly. The decision should have done more, in this highly controversial case, to stay above the political fray. Consider footnote 3 and accompanying text:
Other reforms sought to lower the cost of health insurance by using both policy “carrots” and “sticks.”[FN3]
[FN3]: Some opponents of the ACA assert that the goal was not to lower health insurance costs, but that the entire law was enacted as part of a fraud on the American people, designed to ultimately lead to a federal, single-payer healthcare system. In a hearing before the House Committee on Oversight and Government Reform, for example, Representative Kerry Bentivolio suggested that Jonathan Gruber, who assisted in crafting the legislation, had “help[ed] the administration deceive the American people on this healthcare act or [told] the truth in [a] video . . . about how [the Act] was a fraud upon the American people.” Examining Obamacare Transparency Failures: Hearing Before the H. Comm. on Oversight and Government Reform, 113th Cong. 83 (2014) (statement of Rep. Kerry Bentivolio).
I don’t really know what this fraud allegation is doing there, other than to advance a policy argument—and that’s putting it mildly—against the ACA. The allegation is given no legal significance in the opinion, and it plays no role in the court’s subsequent reasoning. (Footnote 5 adds a similar “Opponents … argue” paragraph, this time on the “If you like your doctor, you will be able to keep your doctor” claim.)
I happen to believe the ACA has a lot of problems. But in a case with major policy consequences, courts should be especially careful to stick to the law and not to venture into the policy dispute. The legal question is whether Congress was allowed to enact the ACA, not whether it was wise to do so. In that context, the Fifth Circuit’s footnote strikes me as unfortunate, even injudicious.
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In an earlier post, I suggested that the lawsuit in Doe v. Mckesson should lead to a victory for Mckesson—but on a legal theory (the professional rescuer’s doctrine, which sharply limits negligence claims brought by police officers) that hadn’t been raised in the case, though it still might be in later phases. The opinion, though, raises an interesting and complicated question that can’t always be dealt through that doctrine. Let me talk about this, in the context of a hypothetical.
Say that John Smith organizes an illegal protest in an abortion clinic’s parking lot—illegal because it’s a trespass (analogously to how Mckesson’s protest was, according to the Fifth Circuit, plausibly pleaded to be an illegal blocking of a public street). Unsurprisingly, and thus foreseeably, some clinic employees come out to try to get the protesters to leave, and even use lawful defensive force (pushing) to eject the protesters. Unsurprisingly, and thus equally foreseeably, one of the protesters (Mary Baker) punches the employee who is pushing him. (Indeed, perhaps this has happened before at this group’s protests, so it is indeed foreseeable.)
Would Smith be liable under normal tort law negligence principles for the injury to the employee? Yes, I think so. By organizing the protest, he caused a foreseeable risk that an employee will be injured. And because the protest involved trespass, it’s pretty likely that this would be viewed as unreasonable conduct.
(This is not just on the so-called “negligence per se” theory, under which criminal conduct is treated as automatically negligent; that theory isn’t recognized in Louisiana, and in any event might not apply here. Rather, it’s because of broader unreasonableness principles: It’s unreasonable to violate the law in a way that puts third parties in a position where they have to lawfully use force to defend their or others’ rights against the crimes your followers are committing, and where they therefore risk injury from other foreseeable crimes.)
Nor does it matter that the injury comes from a third party (here, Baker), so long as the third party’s conduct is foreseeable. As the Restatement (Second) of Torts put it,
An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal.
This is particularly so when “the actor acts with knowledge of peculiar conditions which create a high degree of risk of intentional misconduct,” for instance (continuing from the Restatement),
The employees of the A Railroad are on strike. They or their sympathizers have torn up tracks, misplaced switches, and otherwise attempted to wreck trains. A fails to guard its switches, and runs a train, which is derailed by an unguarded switch intentionally thrown by strikers for the purpose of wrecking the train…. C, a traveler upon an adjacent highway, [is] injured by the wreck. A Company may be found to be negligent toward … C.
Note that this is not an affirmative duty to protect third parties from crimes as such: That is generally imposed only when there is a “special relationship” between the plaintiff and the defendant, for instance when the defendant is a commercial property owner and the plaintiff is a customer. I don’t have a duty to protect you from being attacked on the street, even if I’m nearby and can easily save you (or at least call the police to save you).
Rather, this is a duty not to unreasonably create a risk of crime (or increase such a risk). In the Restatement example, the railroad is affirmatively running a train on a track that it knows can be easily and foreseeably sabotaged. This affirmative act, which creates “an unreasonable risk of harm to another through the conduct of … a third person which is intended to cause harm, even though such conduct is criminal,” is what makes the railroad potentially liable. Or, to give an example from a famous 1918 case, which held a railroad liable when its train had struck a wagon and injured the driver, thus also leading bystanders to steal the contents of the wagon:
The negligence which caused the collision resulted immediately in such a condition of the driver of the wagon that he was no longer able to protect his employer’s property; the natural and probable result of his enforced abandonment of it in the street of a large city was its disappearance; and the wrongdoer cannot escape making reparation for the loss caused by depriving the plaintiff of the protection which the presence of the driver in his right senses would have afforded.
“The act of a third person,” said the Supreme Court of Massachusetts, “intervening and contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer, if such act ought to have been foreseen.”
The Doe v. McKesson dissent argued that a distinction between “a duty to protect against the criminal acts of a third party absent a special relationship” and a “duty not to negligently cause a third party to commit a crime that is a foreseeable consequence of negligence” “is a semantic distinction without an analytic difference.” But I don’t think that’s right: Rather, it’s the fundamental distinction—long recognized by American tort law—between an affirmative duty to protect against risks that you didn’t help create or increase, which indeed doesn’t exist absent a special relationship, and an affirmative duty not to help create or increase such risks, which does exist.
Likewise, in our hypo, Smith is affirmatively creating a risk, by organizing a protest under circumstances where it’s very likely that the abortion clinic’s employees will try to eject the protesters, and that some of the protesters will react violently. And the risk is unreasonable, because he’s deliberately organizing the protest as a trespass on the clinic’s property. Under the Doe v. Mckesson panel decision, this would expose Smith to liability for his own negligence in bringing about the circumstances that caused the employee’s injury. I think that is correct under standard American tort law.
Of course, there is then the question whether the First Amendment should preempt this standard negligence rule when the defendant’s (Smith’s or Mckesson’s) conduct, though unlawful, nonetheless involves organizing a political protest. I will turn to that in an upcoming post.
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Tom Clause is not the kind of person you’d expect to give up his Friday night to hear a speech from former Vice President Joe Biden.
Clause attended the 2016 Democratic National Convention as a delegate for Sen. Bernie Sanders (I–Vt.). He says he “wholeheartedly” supports progressive health care and gun control policies that would typically steer him toward supporting Sanders or Sen. Elizabeth Warren (D–Mass.) when Iowans caucus on February 3 in the nation’s first presidential nominating contest.
But if Biden is going to become the 46th president of the United States next year—or, for that matter, if he’s going to at least avoid a potentially disastrous defeat in Iowa—it will likely be due to people like Clause.
“My own personal beliefs are more progressive. But that doesn’t mean I’m going to vote for the most progressive candidate if we can’t unite behind that person,” Clause, a 74-year-oldarchitect from Winterset, Iowa, tells Reason. Nearby, Biden is shaking hands and taking selfies with a dwindling crowd at the Madison County Fairgrounds, about 45 minutes southwest of Des Moines. “I really want to find somebody that the American electorate can follow, that we can unite behind. This tribalism that we’ve got going now is just nuts.”
Biden argues that the lifetime he spent in the U.S. Senate, an institution that values deliberation and consensus-building above all else, holds the key to understanding how to put our broken politics back together. This isn’t something Biden has stumbled onto out of convenience on the campaign trail. It’s a narrative that intentionally positions Biden as the guy fighting not just President Donald Trump and the conservative populists, but the progressive wing of his own party.
“Some of these people are saying ‘Biden just doesn’t get it. You can’t work with Republicans anymore. That’s not the way it works anymore,'” Biden said on a sunny day in May as he announced his candidacy to a cheering crowd in Philadelphia. “I know how to make government work—not because I’ve talked or tweeted about it, but because I’ve done it. I’ve worked across the aisle to reach consensus, to help make government work in the past. I can do that again with your help.”
It’s true that Biden is a centrist in the sense that he’s an anti-tribalist politician driven by a desire to build consensus—but his career also serves as a reminder that even when politics works, it doesn’t deliver optimum outcomes. Indeed, Biden has been a fixture in Democratic politics for decades because of his ability to deliver some of the most significant, bipartisan, federal policies of the past few decades—from the PATRIOT Act to the “tough on crime” policies of the 1990s. He played a central role in building a political consensus that voters on both sides of the partisan divide have been rejecting in recent years, and now he’s promising to do more of the same:pitching tax and health care policies that can be described as “moderate” only in relation to the rest of the Democratic primary contest, which is characterized by progressive one-ups—fiscal reality be damned.
If nothing else, Biden is a reminder of the Democratic Party’s trajectory over the last half century, and a symbol of the policy baggage that its establishment carries with it today. And Biden’s pleasant-sounding, centrist appeals to consensus and getting along can mask a darker reality: that bipartisan politics comes with plenty of downsides.
The Kid From Scranton, the Senator From Delaware
If you know anything about the life of Joe Biden, it’s probably that he was born in Scranton, Pennsylvania. Biden was not yet 11 years old when his family left the working-class city in the coal-laden northeastern corner of the Keystone State so his father could seek better job prospects in Claymont, Delaware, but Scranton continues to play an outsized role in Biden’s political persona. Even now, 66 years after he moved away, Biden calls Scranton “my home” in one current campaign ad in which he talks about the “values” the city “instilled in me.”
Today, Biden is worth an estimated $9 million and owns two homes valued at over $4 million each, according toForbes. But the narrative about Biden as a middle-class guy from coal country sticks.
The story was never fully accurate. By the time Biden made his first run for Senate in 1972, he had graduated from the University of Delaware (in 1965), matriculated through Syracuse University School of Law (in 1968), passed the Delaware bar exam (in 1969), and won his first political election to the town council in New Castle, Delaware, in 1970. In between all that, he’d married his college girlfriend, Neilia Hunter, whom he’d met on a spring break trip to the Bahamas. In his 2007 memoir, Biden claims he struck up a poolside conversation with Neilia after flipping a coin with a buddy to decide which of two girls they would approach. By 1972, the couple had two sons, Beau and Hunter, and a daughter, Naomi.
That was also the year Biden was first elected to the U.S. Senate, a full decade before Pete Buttigieg—the mayor of South Bend, Indiana, and one of Biden’s top rivals for the Democratic nomination—was even born.
Biden’s victory in the 1972 Senate race helped establish his outsider, underdog brand. He’d been approached in mid-1971 by two party elders who encouraged Biden to run against Sen. J. Caleb Boggs, a two-term incumbent Republican senator and former governor.
In a 2008 interview with NPR, Biden’s longtime friend and former chief of staff Ted Kaufman said he dismissed Biden’s 1972 campaign, even though he was working for it. “I really don’t think you have much of a chance,” Kaufman recalled telling Biden at the time. Boggs was well-known, and incumbent President Richard Nixon was cruising towards a landslide re-election. The campaign faced long odds.
Biden had no money and few staff beyond immediate family and close friends. His age meant he was only barely viable as a candidate. Senators must be 30 years old, and Biden wouldn’t hit his third decade until a few weeks after the election—but just in time to be inaugurated in January 1973.
And yet, despite the fact that Nixon carried Delaware by 20 points in 1972, Biden won by about 3,000 votes. He’d campaigned hard, pressing the flesh and looking voters in the eye. He’d prioritized civil rights, ending the Vietnam War, and stressed that Boggs was too old to continue representing Delaware effectively.
The stunning victory was soon matched by a staggering loss: On December 18, 1972, Biden’s wife and 1-year-old daughter were killed when their station wagon was struck by a tractor trailer. When Biden was sworn in as the fifth youngest senator in U.S. history less than a month later, the ceremony took place in the hospital room where 4-year-old Beau was still healing from a broken leg suffered in the accident. “We had a number of plans, Neilia and I, for the swearing-in day,” Biden said, according to an Associated Press report from the day. “My children were to have been with us on that day. I felt I should be sworn in with my children today.”
Presidential Aspirations Undone
If it seems like Joseph Biden has been a fixture in Democratic Party politics for forever, it’s because he has. Biden’s current presidential campaign is his third. Each campaign is separated by more than a decade, and the first two were marked by early stumbles that derailed promising beginnings.
Biden had already spent well over a decade in the Senate when he ran for president for the first time in 1988—and yet, at just 44 years old, he was still regarded as an upstart who, if elected, would have been the third-youngest president in American history at the time.
His campaign collapsed in September 1987, months before the Iowa caucuses, when The New York Times reported that Biden had, during his closing statement of an August 23 debate at the Iowa State Fair, lifted several passages from a campaign speech given in May of that same year by a leader of the British Labour Party. On September 23, Biden called a press conference inside the U.S. Capitol and announced that he was withdrawing due to the fervor created by the plagiarism scandal.
“I’ve done some dumb things, and I’ll do dumb things again,” he said. “There will be other presidential campaigns. And I’ll be there. I’ll be there. There will be other opportunities. There will be other battles in other places, other times. And I’ll be there.”
Biden flirted with running for president on several occasions in the 1990s and early 2000s, but wouldn’t officially toss his hat in the ring again until 2008. There were no major scandals, but his campaign never took off, and Biden dropped out after a disappointing fifth-place finish in Iowa. He would win a consolation prize 11 months later, when he was elected as Barack Obama’s vice president.
This time around, Biden is running as a consensus builder who can unite a country polarized by Trump on the one hand, and the Democrats’ rising socialist faction on the other.
“The fact of the matter is that you have to elect someone who could bring the country together. Get Democrats and Republicans and work together again,” Biden said at a recent fundraiser in New York City. “Now if you conclude, as some of my opponents—all good people—think that that’s not possible then you might as well give up.”
President Barack Obama presents the Medal of Freedom to US Vice President Biden on January 12, 2017.
Many Biden supporters seem to believe that is the candidate’s strongest quality. Outside a Biden campaign event in Des Moines, Iowa state Rep. Bruce Hunter (D–Des Moines), a longtime Biden supporter who also backed the failed 2008 campaign, sums it up: “I think Joe has—moreso than any other candidate in there right now—the experience and the inner moxie, or whatever you want to call it, to actually unite this country.”
But the experience argument cuts both ways. Unlike in 1972 and 1988, Biden is no longer the youthful figure promising a better future for the Democratic Party and America at large. Now, he’s saddled with legislative and political baggage that comes from spending decades at the forefront of Democratic policymaking, where Biden pressed for legislation now widely, and appropriately, reviled.
The Crime Bill
“We have predators on our streets,” Biden warned in a 1993 speech on the Senate floor, a day before the chamber would vote to overhaul the federal criminal justice system.
Biden was defending the Senate bill’s harsh “three strike” rule, which imposed life sentences for anyone convicted of a violent felony if they had two prior offenses on their record—including drug crimes. For Biden, prison was the only surefire way to avoid an inevitable tragedy. The government must keep potential criminals away from “my mother, your husband, our families,” he said. “We have no choice but to take them out of society.”
“If we don’t,” he said, “They will, or a portion of them, will become the predators 15 years from now.”
Biden was the chairman of the Senate Judiciary Committee, and he led the fight for the crime bill, but its passage was the product of a bipartisan consensus. Only four members of the Senate voted against it, and support in the House was so overwhelming that it passed with only a voice vote. President Bill Clinton signed it into law in September 1994.
By 2000, violent crime in Americahad fallen about 30 percent. But the decline was already underway before the bill passed. And the bill came with a tremendous cost.
In the 15 years after the law’s passage, the number of federal prisoners doubled. The law encouraged states to impose similar “three strike” rules for non-federal offenses, which only added to the wave of lockups. The bill also cut funding for inmates to pursue college degrees while behind bars, created the federal sex offender registry, and added dozens of offenses to the list of crimes for which an inmate could be put to death.
Today, the 1994 crime bill is viewed critically by lawmakers and interest groups on both sides of the partisan divide. Even Trump, a Republican president who campaigned with a law and order message, has gone along with piecemeal reforms aimed at reducing incarceration rates.
Yet Biden has struggled to adapt. When he ran for president 11 years ago, he was unwilling to issue a mea culpa for his leadership in passing the 1994 crime bill and related pieces of legislation. “I knew more people would be locked up across the board,” he told The New York Times in 2008. “I acknowledged that, but I also said it would drive down crime.”
This time around, Biden has faced harsh criticism from fellow Democrats. At a debate in August, Sen. Cory Booker (D–N.J.) slammed Biden’s support for tough-on-crime policies that Booker, a native of Newark, said “destroyed communities like mine.”
In response to critics, Biden has either denied that the 1994 bill was the true cause of mass incarceration, blaming states for following Congress’ example, or dodged questions about his vocal support for the measure by claiming Democrats have been “conditioned” to think the bill was bad when it actually wasn’t. A Biden spokesperson suggested to CNN that his “strong rhetoric” was merely in response to Republican critiques that he had been too soft on crime.
Biden is running as a throwback to an earlier era when members of Congress worked across the aisle to get big things done. But the crime bill and its consequences are a reminder of how fraught that approach could be.
Disastrous Consequences of Biden’s Centrism
Despite Biden’s rhetoric about centrism and consensus, his career is littered with situations where he championed expansions of government, often with bipartisan support, that eventually produced disastrous consequences. That was a track record already well established by the time the 1994 crime bill passed.
Ranking Republican Strom Thurmond, of South Carolina, and Senate Judiciary Committee Chairman Joe Biden, presiding over the confirmation hearing for Supreme Court Justice Clarence Thomas in 1991.
Ten years earlier, newly installed as the highest ranking Democrat on the Senate Judiciary Committee, Biden worked closely with Dixiecrat-turned-Republican Sen. Strom Thurmond of South Carolina to craft the Comprehensive Crime Control Act. The bill established mandatory minimums for many drug offenses and effectively created the modern civil asset forfeiture system that has since been regularly abused by law enforcement to seize cash, cars, homes, and other valuables from individuals who are often never charged with a crime.
Earlier this year, Bidencalled his efforts to pass that bill “a big mistake.”
But it was the sort of mistake he made frequently. In 1986, Biden co-sponsored the Anti-Drug Abuse Act, spurred by a moral panic over several high-profile deaths caused by cocaine. The bill added more mandatory minimum sentences for drug crimes—including the now-infamous provision requiring a five-year prison term for anyone possessing 5 grams of crack cocaine or 500 grams of powdered cocaine. That massive discrepancy “unjustly and disproportionately” penalized African Americans and poor communities, the American Civil Liberties Union said in a 2006 report on the law. “With regard to crack, more than 80% of the defendants sentenced for crack offenses are African American,” the ACLU found, despite the fact that a majority of cocaine users are white or Hispanic.
This too was an exercise in consensus-building. It passed the Republican-controlled Senate with just two “nay” votes, and easily cleared the Democratic-controlled House.
He also co-sponsored a follow-up bill—the Anti-Drug Abuse Act of 1988, because the name was too good not to use it twice—that bolstered prison sentences for drug possession crimes and established the Office of National Drug Control Policy, effectively creating an internal lobbying organization to defend the drug war against critics.
“Every major crime bill since 1976 that’s come out of this Congress, every minor crime bill, has had the name of the Democratic senator from the State of Delaware: Joe Biden,” Biden said on the Senate floor in 1993.
Having cranked up America’s war on drugs, Biden soon transitioned to doing the same for the war on terror.
He played a key role in passing the Antiterrorism and Effective Death Penalty Act of 1996, which effectively “gutted the federal writ of habeas corpus” by making it more difficult for federal inmates to challenge that they were wrongly convicted. Biden wasone of five senators to serve on the conference committee that shaped the bill into its final form—and it passed both chambers of Congress with broad bipartisan support.
Parts of the bill that got left on the committee room floor were revived a few years later for the next major, bipartisan effort at sacking Americans’ civil liberties. “I drafted a terrorism bill after the Oklahoma City bombing. And the bill [Attorney General] John Ashcroft sent up was my bill,” Biden, then the chairman of the Senate Foreign Relations Committee, bragged to TheNew Republic in 2001. That bill was the PATRIOT Act.
And when America’s war on terror turned into a series of ill-advised overseas military excursions, Biden again played a crucial role from a prominent Senate perch—this time as chairman of the Senate Foreign Relations Committee. On March 13, 2003, just weeks before the invasion of Iraq was launched, Biden delivered a nearly hourlong speech that grappled with the seriousness of the war President George W. Bush wanted Congress to authorize. In the end, he gave his assent, saying that the United States “has a special, unilateral capacity, and indeed obligation, to lead in implementing its convictions.”
Ever the believer in consensus, Biden voted for the war because he believed that “congressional unity in threatening war would compel sufficient international resolve as to somehow compel Saddam’s peaceful disarmament,” wrote The Daily Beast‘s Spencer Ackerman in a detailed examination of Biden’s record on Iraq—and his defenses of the vote in the years since.
In attempting to find common ground, Biden now admits he may have conceded too much. In an interview with NPR earlier this year, Biden said he had a “commitment” from Bush that the authorization to use military force was only necessary to allow for more effective diplomacy.
The mistake, he told NPR, was trusting Bush. Biden’s mistake, in other words, was his reflexive instinct for consensus.
Once a Centrist, Always a Centrist?
But while Biden’s record during his tenure in the Senate is that of a consensus-seeking centrist, his campaign for the White House this year has veered farther to the left. Biden’s stump speeches are chock full of promises to use federal power to address every problem.
Joe Biden speaks to voters in Winterset, Iowa, on November 22.
At a campaign event in Winterset, Iowa, in late November, a woman notes that the town—with a population of 5,200 and within easy driving distance of Des Moines—has only a single OB-GYN doctor. How would a President Joe Biden make sure there are more, she wants to know. Biden isn’t willing to commit to personally assigning specific doctors to rural towns, but he assures the crowd that he would propose spending $100 million to open more rural health clinics and would push for tax breaks that encourage doctors to relocate. There’s never so much as a suggestion that a problem might be better solved by state or local officials, much less by loosening the thicket of health care industry rules and regulations that have created shortages in the supply of rural doctors.
For Biden, no problem is too small to warrant federal attention. “There is so much we can do, without spending a lot of money, to revive small towns,” Biden says in response to a question about poorly-paved roads. But if small towns in Iowa are dependent on the goodwill of the occupant of the Oval Office, they are probably in worse shape than most residents would think.
It’s not just campaign trail talk. Biden’s recently unveiled tax proposal, released in early December, is far more progressive than anything Congress has considered in decades. He wants to hike the corporate income tax rate from 21 to 28 percent, and raise the top individual income tax rate from 37 to 39.6 percent. He would cap the number of deductions wealthy individuals could claim, and would make investment income subject to the same tax status as earned income for individuals making over $1 million annually (right now, capital gains are taxed at a lower rate).
It’s certainly not as dramatic a proposal as what Warren and Sanders have pitched, but Biden is still calling for a whopping $3.2 trillion in tax increases over the next 10 years, more than double what Hillary Clinton proposed as a presidential candidatein 2016. As longtime progressive commentator Paul Waldman wrote in The Washington Post, Biden’s plan “would have been considered radical, certainly too much for Barack Obama to have signed into law, or in some cases even suggested.”
When it comes to health care policy—one area where Biden is most likely to be attacked by progressives for challenging the notion that a single-payer or Medicare for All model is affordable or workable—his views can be called “moderate” only in relation to what some of his opponents are proposing.
Biden wants to preserve most of the Affordable Care Act, the passage of which he calls “the proudest moment” of his political career—and which he was caught by a hot mic describing as “a big fucking deal” when Obama signed it in 2010.
But he’s also pushing past it. His proposal calls for letting all Americans buy into Medicare if they choose, effectively recreating the “public option” that was originally supposed to be part of the ACA, but was scrapped during the legislative process. Under what he usually calls “The Biden Plan,” anyone who likes their private insurance will be able to keep their private insurance, he promises.
Biden’s shift to the left reveals something important about the current Democratic field: Biden’s strength as a politician has long been to find the popular middle ground in Democratic Party politics. He’s the party’s human weather vane. Now, even running as a moderate, his campaign has moved notably to the left of the party’s most recent nominee. Yet this shift has also created some tension with Biden’s consensus-driven, deal-making persona. It’s hard to occupy the middle ground when the rest of your party is retreating from it.
The Limits of Civility
In his epic poem “The Cure At Troy,” Irish poet Seamus Heaney wrote that “History says don’t hope on this side of the grave; but, then once in a lifetime the longed for tidal wave of justice can rise up, and hope and history rhyme.”
Joe Biden loves that line from that poem. He’s quoted it in commencement addresses and in an official statement from the Office of the Vice President memorializing Nelson Mandela. He invokes those words on the campaign trail, in both his memoirs, and—a bit weirdly—in speeches to South Korean diplomats and Israeli lobbyists. Perhaps he dips into that well so often because those lines seem to fit Biden’s ethos: fatalist, tinged by tragedy, yet optimistic anyway.
And Biden is optimistic. In an age of brutal partisanship, he’s promising to be the one guy who can work with both sides.
In the early days of the Obama administration, Biden did exactly that. Freshly plucked from the Senate to the executive branch, Biden called upon his old relationships to help build support for the stimulus package, and unsuccessfully courted Republican support for health care reform. Even where there were disagreements, Republican senators and their staffs generally preferred working with Biden than the White House, says Brian Riedl, a former staffer for Sen. Rob Portman (R–Ohio).
But as the partisan battle lines hardened, even Biden’s bonhomie wasn’t enough. Obamacare passed without a single GOP vote. The Senate repeatedly stopped up Obama-era policy goals and a Supreme Court appointment. Biden was the Obama administration’s top cheerleader for the Trans-Pacific Partnership (TPP) trade deal, a 12-nation pact meant to balance the growing influence of China in Asian markets. Congressional support for the deal collapsed amid the 2016 presidential race, when Trump’s protectionist views overwhelmed the Republican Party. Nothing about politics in 2019 suggests that partisan animus will pass soon.
Biden tells voters he will puncture that reality, but he also seems to know it’s beyond his power to change.
“At the end of the last year of the [Obama] administration, I decided to go up to the private senators’ dining room just to sit and have lunch with some of my Republican friends and my Democratic friends,” he recalls in the pages of Tim Alberta’s 2019 book American Carnage, which covers the rise of Republican populism during the 2010s. “And as I walked in—I realized it doesn’t exist anymore. There’s no place for Republican senators and Democratic senators to sit down and eat together.” He was being literal. The private dining room that used to be shared by senators, regardless of political affiliation, is gone.
One can picture him practically brought to his knees, like Charlton Heston glimpsing the destroyed Statue of Liberty. “What the hell has happened, man?” he asks Alberta. “We’ve stopped talking to each other.”
It’s a lament that is quintessentially Biden, and one that sums up his place in American politics in 2019. In Promises To Keep, his 2007 memoir, Biden refers to the Senate as his “second home” and heaps praises on his colleagues as his senatorial brothers—and the Senate was almost entirely men at that time—who helped him cope with the overwhelming loss of his wife and daughter. It was the camaraderie and civility of the Senate—at least as it operated in the late 20th century—that gave Biden his deep appreciation for the importance of compromise and consensus.
Now the world he used to inhabit quite literally does not exist anymore.
It’s difficult to imagine Biden, through nothing more than the power of his smile and personal commitment to finding common ground, convincing the current crop of Republican senators to back a multi-trillion-dollar tax increase. And if that leaves the next Democratic administration with the choice of doing nothing or embracing executive authority, where does that mean for Biden?
The Senate lifer isn’t a go-it-alone leader who sets out to impose his programs at the expense of tradition or democratic norms. If his reverence for the procedural deliberations of the upper chamber and his commitment to consensus are truly his highest values, then his administration might result in an essentially frozen political environment anchored by partisan gridlock—and, perhaps, an ever so slightly less expansive presidency. Indeed, Biden has occasionally criticized his Democratic rivals for wanting to do too much by executive order. It’s not exactly a full-throated defense of restricting executive power, but it is probably the most modest vision of the presidency in the Democratic field.
On the other hand, Biden has repeatedly led the way—or done his part to move things along—when there is a perceived moral crisis and the political elites manage to converge on what to do about it. After all, the consensus view is rarely, if ever, “Do nothing.”
And as Biden likes to often remind us, history says don’t hope.
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The individual mandate is invalid, says court. While the chattering class was focused mostly on the pageantry in Washington yesterday, some more momentous news (in terms of practical impact) may have been happening further south. On Wednesday, a federal appeals court in New Orleans held that the controversial part of the Affordable Care Act (ACA) known as the individual mandate is unconstitutional.
A signature part of Obamacare, the individual mandate requires every American to have health insurance or pay a fine. In a 2–1 ruling issued yesterday, the U.S. Court of Appeals for the 5th Circuit held that this requirement is not a “constitutional exercise of congressional power.”
“If Congress can compel the purchase of health insurance today, it can, for example, micromanage Americans’ day-to-day nutrition choices tomorrow,” the judges wrote.
California Attorney General Xavier Becerra said he would lead state prosecutors in asking the Supreme Court to overturn the appeals court ruling.
For now, the panel of appellate judges remanded the case to the U.S. district court in Texas where it originated, so a judge there could “conduct a more searching inquiry” into the viability of other parts of the law. (Volokh Conspiracy bloggers Josh Blackman and Ilya Somin offer more on what the judges wrote and what it means.)
Last year, that court held that the individual mandate was not only unconstitutional but also essential to the functioning of Obamacare overall. Without it, the court said in December 2018, the whole health care law must be invalidated.
Speaking of things getting canceled: The Democratic-led House of Representatives voted yesterday to impeach President Donald Trump, making him the third person in U.S. history to get this far in a congressional effort to deplatform someone from the presidency. But the matter now goes to the Republican-led Senate, where no one expects enough votes to remove Trump from office.
QUICK HITS
French sex workers are taking their country’s prostitution laws to court, telling the European Court of Human Rights that “it is urgent that the sacrifice of sex workers on the altar of morality end!”
Attorneys general from Alabama, Louisiana, and South Dakota are suing to stop the Equal Rights Amendment from moving forward.
“To say Trump deserves impeachment is different from saying that impeachment is good for the country. It might, in fact, turn out quite badly,” argues Shadi Hadid at The Atlantic.
Trump now says impeaching presidents is unconstitutional, full stop. However…
Check out this exchange I had with then private citizen @realDonaldTrump on Oct. 15, 2008. We spoke about House Speaker Nancy Pelosi and he then offered his thoughts about impeachment. pic.twitter.com/mXlsG9SjbB
On July 9, 2016, a protest illegally blocked a public highway in front of the Baton Rouge Police Department headquarters. This demonstration was one in a string of protests across the country, often associated with Black Lives Matter, concerning police practices…. DeRay Mckesson, associated with Black Lives Matter, was the prime leader and an organizer of the protest…
At some point, an unidentified individual [allegedly, one of the protesters] picked up a piece of concrete or a similar rock-like object and threw it at the officers making arrests. The object struck Officer Doe’s face. Officer Doe was knocked to the ground and incapacitated. Officer Doe’s injuries included loss of teeth, a jaw injury, a brain injury, a head injury, lost wages, “and other compensable losses.” …
Doe sued Mckesson for, among other things, negligence: “Mckesson was negligent for organizing and leading the Baton Rouge demonstration because he ‘knew or should have known’ that the demonstration would turn violent.” Mckesson moved to dismiss, arguing that, as a matter of law, he couldn’t be held liable; but the Fifth Circuit rejected Mckesson’s argument on this point:
Officer Doe has plausibly alleged that Mckesson breached his duty of reasonable care in the course of organizing and leading the Baton Rouge demonstration. The complaint alleges that Mckesson planned to block a public highway as part of the protest. And the complaint specifically alleges that Mckesson was in charge of the protests and was seen and heard giving orders throughout the day and night of the protests.
Blocking a public highway is a criminal act under Louisiana law…. It was patently foreseeable that the Baton Rouge police would be required to respond to the demonstration by clearing the highway and, when necessary, making arrests. Given the intentional lawlessness of this aspect of the demonstration, Mckesson should have known that leading the demonstrators onto a busy highway was likely to provoke a confrontation between police and the mass of demonstrators, yet he ignored the foreseeable danger to officers, bystanders, and demonstrators, and notwithstanding, did so anyway.
The court concluded that, “[b]y ignoring the foreseeable risk of violence that his actions created, Mckesson failed to exercise reasonable care in conducting his demonstration.” More precisely, given the procedural posture and an earlier note in the court opinion, the court concluded that Doe has plausibly alleged that Mckesson failed to exercise reasonable care.
This is huge, you might be thinking (whether or not you agree with the court): Under the court’s analysis, police officers could sue citizens about all sorts of injuries the officers get in the course of duty, on the theory that the citizen indirectly but foreseeably brought about the need for the police to get involved, and the injury (intentional or accidental) to the police. Why aren’t we seeing more such cases?
Because police officers generally can’t sue for negligence over on-the-job injuries. This used be called the “fireman’s rule” and is still often called the “firefighter’s rule,” but it also covers police officers. Louisiana law calls it the “Professional Rescuer’s Doctrine“:
[A] professional rescuer, such as a fireman or a policeman, who is injured in the performance of his duties, “assumes the risk” of such an injury and is not entitled to damages … [when the] risks arise from the very emergency that the professional rescuer was hired to remedy. The assumption rationale bars recovery from most [such] risks except when (1) the … risks encountered by the professional rescuer are so extraordinary that it cannot be said that the parties intended the rescuers to assume them, or (2) the conduct of the defendant [is] so blameworthy that tort recovery should be imposed for the purposes of punishment or deterrence.
Police officers are hired to protect others from criminal activities, are expected to effect arrests as part of their duties, and could expect a criminal to resist arrest. Accordingly, the risk of being injured while carrying out an arrest is a … [risk] arising out of the specific problem which the police officer was hired to remedy. Therefore, in order for a police officer to recover for injuries received while attempting to arrest a criminal who is resisting, the risk created by the arrestee’s conduct must either be so extraordinary that it cannot be said that the parties intended the police officer to assume them, or the conduct of the arrestee in resisting must be so blameworthy that tort recovery should be imposed for purposes of punishment or deterrence.
In the case I’m quoting, the Louisiana Court of Appeals applied this reasoning to conclude that a police officer couldn’t recover damages from a drunk arrestee who injured the officer (apparently accidentally) while the officer was handcuffing him. But the underlying doctrine applies more broadly, to all sorts of ways that police officers or firefighters can get injured.
Under this doctrine, Mckesson should win easily: The police officers were acting in the line of duty, dealing with the very sorts of risks they were hired to deal with; the risks were certainly not “extraordinary.” Mckesson’s conduct, according to Doe’s theory, was negligent, so it wasn’t especially “blameworthy” (the way the rock-thrower’s conduct may have been). Clear result under Louisiana law (which is consistent with the dominant tort law view throughout the country).
But you can search in vain through the Fifth Circuit opinion for any discussion of the professional rescuer’s doctrine or the firefighter’s rule—because, as best I can tell, you can search in vain through the briefing before the Fifth Circuit or in the District Court for any such discussion. For whatever reason, Mckesson’s lawyers didn’t raise the argument, and, unsurprisingly, the courts didn’t consider it. (I expect that, if the Fifth Circuit had certified the state law question to the Louisiana Supreme Court, as Judge Willett suggested, the Louisiana Supreme Court wouldn’t have considered it, either, because Mckesson hadn’t sufficiently raised it.)
Not all is lost for Mckesson: If the Supreme Court doesn’t agree to hear the case, then the matter will go back to the federal trial court, where Mckesson can raise the professional rescuer’s doctrine in ongoing proceedings (e.g., in a motion for summary judgment).
Yet so far, the case has been litigated in this highly artificial posture, which makes it hard for us to speculate about its implications. We often, for instance, reason that some legal analysis—especially a common-law analysis—is wrong because it would lead to results we view as unsound. But the Fifth Circuit’s analysis might well not lead to any results in this case or in cases just like it, precisely because ultimately those cases would be thrown out on a different basis. If we think that there should be some protection against excessive negligence lawsuits brought by police officers in case such as this, then perhaps that protection is offered precisely by the professional rescuer’s doctrine, and not by the more general negligence arguments that Mckesson was making and that the Fifth Circuit rejected.
Still, I’m a law professor, so I get to change the hypo, so that we can evaluate the Fifth Circuit’s analysis without the professional rescuer’s doctrine overshadowing this. More on that in a later post.
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Between 2018 and 2019, according to the latest results from a government-sponsored survey, illegal drug use rose slightly among eighth-graders and 10th-graders while falling slightly among 12th-graders. None of the changes was statistically significant, and the story for marijuana is similar. Meanwhile, drinking and smoking continued to fall in all three grades, and there were statistically significant drops in heroin use by 10th-graders and prescription opioid use by 12th-graders.
If you are thinking there is not much cause for panic in those findings, you are of course wrong. The press release about the Monitoring the Future Study, which is funded by the National Institute on Drug Abuse (NIDA), highlighted increases in vaping, and so did the New York Times story, because that is what public health officials, politicians, and journalists are freaking out about lately.
“Increases in adolescent marijuana vaping from 2018 to 2019 ranked among the largest single-year increases ever observed by Monitoring the Future in the past 45 years among all outcomes ever measured,” the University of Michigan researchers who conduct the survey breathlessly report. “Nicotine vaping in the last 12 months also significantly increased in 2019.”
Those results, according to lead investigator Richard Miech, show that “current policies and procedures to prevent youth vaping clearly aren’t enough.” Hence “we need new policies and strategies to prevent unscrupulous businesses from making billions of dollars by addicting children to nicotine.” You can be pretty sure those “new policies and strategies” will not be good for the millions of Americans who have switched from smoking to vaping, or the millions of others who might be interested in following suit. The leading proposals include bans on e-liquid flavors, which eliminate the options that former smokers overwhelmingly prefer, and an outright ban on e-cigarettes, which the American Medical Association has endorsed.
Times reporter Matt Richtel’s take on the survey results is similar to Miech’s. “Teenagers are drinking less alcohol, smoking fewer cigarettes and trying fewer hard drugs,” he writes. “But these public health gains have been offset by a sharp increase in vaping of marijuana and nicotine” (emphasis added).
That is an odd way of framing the data. This year the prevalence of past-month marijuana vaping, which the survey first asked about in 2017, rose from 7.5 percent to 14 percent among 12th-graders, from 7 percent to 12.6 percent among 10th-graders, and from 2.6 percent to 3.9 percent among eighth-graders. Those are all substantial and statistically significant increases. But overall marijuana use stayed pretty much the same, so we are mainly talking about a shift in modes of consumption.
Should we be alarmed by that shift? There are legitimate reasons to be concerned about the potential hazards of black-market cannabis extracts, especially if they contain vitamin E acetate, a cutting and thickening agent that has been implicated in the recent outbreak of vaping-related lung injuries. But leaving aside that government-engineered danger, vaping is a less risky route of administration than smoking, because it does not involve sucking combustion products into your lungs.
That is especially true if you are comparing nicotine vaping products to conventional cigarettes, which are indisputably much more hazardous. This year the prevalence of past-month cigarette smoking reached record lows among high school sophomores and seniors. Since 1997, that rate has fallen from 36.5 percent to 5.7 percent among 12th-graders—an 84 percent drop. Furthermore, the downward trend accelerated as the popularity of e-cigarettes rose.
To the extent that we are witnessing a shift from smoking to vaping among teenagers, that is manifestly a positive development in terms of health risks. It therefore makes little sense when The New York Times says the increase in vaping “offset[s]” the decrease in smoking, just as it makes little sense when public health officials say “past progress in reducing youth use of [tobacco] products has been erased” by the recent surge in e-cigarette use.
“Teen Marijuana Vaping Soars, Displacing Other Habits,” says the headline over the Times story. Yet surely it matters which habits are being displaced. If teenagers are vaping marijuana instead of sucking on lollipops, that is one thing. But if they are vaping marijuana instead of smoking it (again, leaving aside the black-market risk created by prohibition), or if they are vaping marijuana instead of drinking or using heroin, that seems like a pretty good tradeoff. All the more so if they are vaping nicotine instead of smoking cigarettes.
“One of the reasons they are embracing these devices is because they are new technology,” NIDA Director Nora Volkow worriedly tells the Times. “It resonates.” But if the welfare of teenagers is the main concern, the government and the press should be focusing on drug-related harm rather than newfangled consumption methods. A different calculus applies, of course, if the main concern is justifying budgets and grabbing readers’ eyeballs.
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