Tag: hit&run

7/11/1921: Chief Justice William Howard Taft takes oath.

 

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“One of the things this crisis has taught us,” Peter Navarro, a top administration economic adviser, explained from behind the podium in the White House’s briefing room, “is that we are dangerously overdependent on a global supply chain.”

It was April 2, and, after weeks of largely ignoring COVID-19 as it spread around the world and into the United States, the Trump administration was finally taking the pandemic seriously. That is to say, it was responding in much the same way as it has throughout President Donald Trump’s tenure: by finding new ways to use old laws to expand federal power—particularly power over the free exchange of goods across international borders.

As the novel coronavirus swept the globe and jammed up international supply lines, Navarro was appointed policy coordinator for the White House’s use of the Defense Production Act—a relic of the Korean War era originally intended to allow the federal government to requisition goods to supply the military in a time of crisis. Trump and Navarro have used the law to redirect portions of the economy in an effort to address civilian needs, scrambling markets in the process.

Along the way, they targeted foreign trade too. For Trump, Navarro, and the other neo-nationalists increasingly setting policy for the post-2016 Republican Party, America’s modern problems mostly stem from goods and people coming across the country’s borders. If a problem can’t be blamed on immigration, it probably will get blamed on trade. Sometimes both. And the neo-nationalists weren’t about to let the coronavirus crisis go to waste.

“If we learn anything from this crisis,” Navarro said in April, “it should be: Never again should we have to depend on the rest of the world for essential medicines and countermeasures.”

This framing sounds like simple electoral politics. The Republican Party hopes to use the pandemic as an opportunity to double down on Trump’s “get tough on China” message that helped deliver key Rust Belt states in 2016.

But it’s more than that. Protectionism is now infecting the GOP to a degree that may be difficult to excise when the Trump era ends. Leading Republican lawmakers such as Sens. Josh Hawley (R–Mo.) and Marco Rubio (R–Fla.), who have been cheerleading Trump’s misguided tariff policy for years, are already positioning the coronavirus as an excuse to use federal power to reshape global trade. Even some formerly anti-Trump conservatives have been swayed into backing a nationalist vision of an America that must stand up to China or be swallowed by it. The COVID-19 outbreak has served only to confirm their fears.

“America must never again rely on China for our medical supplies,” Rich Lowry, editor of National Review and author of The Case for Nationalism (Broadside Books), wrote in an early April op-ed for the New York Post. Two weeks later, in an op-ed for The New York Times, Rubio claimed that America was “largely unable to import supplies from China” because China had “monopolized those critical supply chains” for “domestic consumption and their own fight against the virus.”

But this fantasy of a strong America that’s also fully self-sufficient and isolated from global supply chains—and, yes, it is a fantasy—ignores the tremendous benefits that expanded global trade has unleashed in recent decades. Under Trump, that vision was already gaining currency on the right. The pandemic, which originated in China and disrupted global trading, strengthened it further.

The right’s increasingly vocal trade skeptics have taken advantage of a crisis to advocate a national industrial policy designed not only to decouple the United States from the global trading network but to put America on dangerous Cold War–like footing with one of its biggest trade partners. In doing so, they’re pushing ideas that will leave America less prepared for the next pandemic—and have already left us less able to handle this one.

The Fallacy of Chinese Dependence

The argument that the United States ought to be striving for self-sufficiency rests on a story about our dependence on foreign producers for medical equipment, drugs, and other vital products. This is an extension of how Navarro and Trump have cast China as the boogeyman responsible for a broad swath of America’s economic problems. But that story is largely untrue—or at the very least more complicated than it first appears.

Data from the World Trade Organization (WTO) show that over the past three years—both before and during Trump’s trade war with China—American consumers and businesses imported an average of $13.5 billion per year in medical supplies from China. That’s good enough to put China in fourth place, behind Switzerland ($15.5 billion annually, on average), Germany ($19.6 billion), and Ireland ($27.9 billion). America imported less than half the value of medical supplies from China in 2019 as it imported from Ireland, yet you probably didn’t hear many politicians and media personalities grandstanding about an overreliance on Irish manufacturing.

Meanwhile, an April report from the St. Louis Federal Reserve found that 70 percent of essential medical supplies consumed in the United States in 2018—including gloves, hand sanitizer, masks, and other key coronavirus-fighting stuff—were produced in the United States.

China may be more dependent on American medical exports than the other way around. That same WTO report shows that China bought more medical supplies from America than it did from any country other than Germany in each of the past three years. Is this what Navarro means when he says we are “dangerously overdependent” on global supply chains? In reality, the world’s biggest economies are deeply interdependent.

It’s true that China is the top global exporter of personal protective equipment (PPE), hand sanitizer, and some other items necessary to combat the coronavirus. But the facts are more complicated than Rubio claims.

Exports of PPE from China to Europe and the United States fell by 17 and 19 percent, respectively, during the first two months of this year—but overall exports to those same destinations fell by 20 and 28 percent, respectively, during the same period. This suggests the drop was a reflection of global economic conditions rather than a protectionist measure imposed by China on its trade partners. Exports of PPE from China to the rest of the world then increased in March, as the virus abated there and factories reopened, according to data analyzed by Chad Bown, a senior fellow at the Peterson Institute for International Economics (PIIE), a trade-focused think tank. Still, massive worldwide demand has continued to outstrip supply.

What about pharmaceuticals? In February, the Food and Drug Administration (FDA) touched off a brief panic with a statement warning that the coronavirus outbreak in China could disrupt supply chains and lead to a shortage of drugs in America. The neo-nationalists pounced. In a February letter to the FDA, Hawley called America’s supposed dependence on Chinese-made drugs “inexcusable.” Part of the Coronavirus Aid, Relief, and Economic Security (CARES) Act, the $2.3 trillion aid bill passed by Congress and signed by Trump in March, calls for the Department of Health and Human Services to develop “strategies to…encourage domestic manufacturing” of pharmaceuticals. By May, the Trump administration had approved a $350 million grant for a little-known Virginia company that promised to make drugs in the United States. “This is a great day for America,” Navarro proclaimed at a press conference.

In the rush to throw taxpayer money at the problem, the White House didn’t wait to see if a problem actually existed. On June 2, an FDA official testified that the agency had found no evidence of shortages of drugs caused by foreign governments restricting exports.

The truth is that America’s global supply lines for pharmaceutical drugs are actually quite diverse and resilient. There are roughly 2,000 manufacturing facilities around the world authorized by the FDA to produce active pharmaceutical ingredients for American consumers; only 230 of those are in China. Some 510 are in the United States, and 1,048 are in the rest of the world. The supply chains for the 370 drugs on the World Health Organization’s list of “essential medicines,” which includes “anesthetic, antibacterial, antidepressant, antiviral, cardiovascular, anti-diabetic, and gastrointestinal agents,” are similarly global: 21 percent of production facilities are in the United States, with 15 percent located in China and 64 percent located somewhere else.

Diverse supply chains have benefits. They allow drug manufacturers to operate more nimbly and efficiently, which “also offers an advantage when confronting natural disasters and other crises,” says Sally Pipes, the president and CEO of the Pacific Research Institute, a free market think tank. Pipes, who also serves as the organization’s chief fellow for health care policy, points to the example of Hurricane Maria, which devastated Puerto Rico in 2017 and disrupted operations at dozens of pharmaceutical plants on the island. Shortly after the storm hit, Scott Gottlieb, then-commissioner of the Food and Drug Administration, told reporters there could be shortages of 40 different drugs.

Those shortages never materialized either, thanks to global supply chains that allowed drug manufacturers to shift production elsewhere and move supplies easily from one country to another. The same logic applies now. “The height of a deadly pandemic is the worst possible time to suddenly dismantle global drug supply chains,” Pipes says.

Casualties of a Trade War

If there is a second-worst time to start dismantling supply chains, it is immediately before a pandemic. Unfortunately, the Trump administration did that too.

As president, Trump has charted a go-it-alone strategy that emphasizes brute power over diplomatic finesse and that sees trade as a means by which other countries take advantage of the United States. Shortly after taking office in 2017, he yanked the United States out of the Trans-Pacific Partnership (TPP), a 12-nation trade agreement that was widely seen as the best way to put pressure on China to change some of its unacceptable behaviors. Instead of that multilateral effort, Trump sought a one-on-one confrontation that attempted to use tariffs to bully China into changing its ways. But his trade war has so far produced only meager results.

A “phase one” agreement signed in December 2019 did nothing to offset the huge costs to both economies of the tariffs the two countries have raised against one another. And the one big “win” secured by Trump—a promise that China would buy more American agricultural goods—seems unlikely to materialize in the face of a global recession.

That lone policy victory has been offset by numerous tangible losses. Since 2018, Trump has imposed tariffs on steel, aluminum, solar panels, and washing machines. Other tariffs have been aimed at roughly $300 billion in annual imports from China—covering everything from industrial equipment to children’s toys. All together, those tariffs have sucked an estimated $80 billion out of the U.S. economy, according to an estimate from the Tax Foundation, a nonpartisan tax policy think tank.

The tariffs have also imposed a human toll, one that became more obvious during the coronavirus outbreak.

“Any disruption to this critical supply chain erodes the health care industry’s ability to deliver the quality and cost management outcomes that are key policy objectives of the country,” Matt Rowan, president of the Health Industry Distributors Association, told the Office of the U.S. Trade Representative at a hearing back in August 2018.

At the time, the administration was weighing whether to include products like hand sanitizer, thermometers, oxygen concentrators, surgical gloves, and other types of medical-grade protective gear in the list of Chinese-made items to be subjected to new tariffs. Rowan emphasized that such supplies were “essential to protecting health care providers and their patients” and would remain “a critical component of our nation’s response to public health emergencies.”

The most instantly noticeable effect of Trump’s tariffs was to increase the price of goods imported from China, including medical equipment. Importers would have no choice but to “almost immediately” pass along those price increases to “hospitals, surgery centers, long-term care facilities, individual consumers, and government programs who purchase our products,” Lara Simmons, the president of Medline Industries, one of the largest medical supply companies in the United States, said during a June 2019 hearing on the tariffs.

But the Trump administration went ahead with the tariffs anyway. Imports of medical equipment from China fell after the tariffs were imposed, and imports from other parts of the world did not increase enough to make up the difference. It’s likely that hospitals and other health care providers were drawing down on existing inventories and hoping the trade war would end before they had to restock, says PIIE’s Bown, who has analyzed changing supply chain patterns in the last few years.

Trump finally lifted tariffs on medical equipment after the pandemic struck. Unfortunately, the administration did nothing to remove tariffs on chemicals used to manufacture disinfectants and antiseptics—items that will be in even higher demand as the economy reopens.

“The tariff is making it more difficult for companies to supply our nation’s essential workers with antiseptics and sanitizing products they need to protect themselves and others from COVID-19,” says Chris Jahn, president and CEO of the American Chemistry Council.

As the COVID-19 body count rose, Trump blamed China for making things worse by lying about the seriousness of the situation in December and January. The Communist regime in Beijing does deserve scorn for misleading the world about the pandemic’s true nature during the early days of the outbreak. But Trump is far too eager to deflect blame from how his own policies weakened America’s preparedness for the disease—and from how they might have made things much worse.

Pride, Patriotism, and Profits

Having successfully implemented policies that made America less ready for the COVID-19 outbreak by reducing imports, the White House has scrambled to respond to those shortcomings…by blaming exports.

The April 2 announcement that Navarro would be in charge of the Defense Production Act’s use came after a week in which Navarro, in comments to The New York Times, had pilloried an American company for “operating like a sovereign profit-maximizing nation” and for lacking “pride and patriotism.”

That company was the Minnesota-based 3M Corp. Best known for making sticky notes and other office products, 3M also happens to be one of the world’s largest suppliers of respiratory face masks. That includes both the medical-grade N95 masks for which demand has been surging amid the COVID-19 outbreak and run-of-the-mill surgical and industrial masks.

When the coronavirus outbreak hit, 3M sprang into action: The company doubled its global production to 100 million N95 masks per month, with 35 million of those made in America. In early April, the company’s CEO, Mike Roman, announced additional investments in mask-making capacity that will allow the company to produce 50 million N95s in the U.S. by June. For that remarkable mobilization of private capital and workforce productivity in the face of a deadly pandemic, 3M earned scorn from the economic nationalists in the White House.

When Trump signed the executive order implementing the Defense Production Act on April 3, he issued a blistering statement accusing “unscrupulous brokers, distributors, and other intermediaries” of operating like “wartime profiteers” simply for selling goods to buyers in other countries. “This conduct denies our country and our people the materials they need to win the war against the virus,” Trump said. Though the formal statement did not mention 3M specifically, Trump was less diplomatic on Twitter. “We hit 3M hard today,” he wrote in a follow-up tweet, as if the company’s Minnesota headquarters were a newly discovered terrorist training ground. “[They] will have a big price to pay!”

What was 3M’s alleged crime against America? Daring to sell face masks to distributors in Canada.

Set aside the belligerence of the president’s remarks, and there is an intuitive appeal to what he’s arguing: America is facing a pandemic, the thinking goes, and we can’t afford to let go of necessary supplies—not even to a close ally like Canada. It’s every nation for itself. Shouldn’t Americans have those masks instead?

But 3M didn’t stand for the president’s shaming. In a statement, the company noted that in order to meet Americans’ needs it was importing more masks than ever from its production facilities in China. “Ceasing all export of respirators produced in the United States would likely cause other countries to retaliate and do the same, as some have already done,” 3M said. “If that were to occur, the net number of respirators being made available to the United States would actually decrease.”

The knockout blow was 3M’s revelation that its American mask production facilities rely on a special wood pulp imported from—yes—Canada. It was an incident that perfectly captured the myopia of Trump’s anti-trade agenda.

The medical supplies subject to Trump’s April 3 executive order accounted for more than $1.1 billion of U.S. exports in 2019, according to Commerce Department data analyzed by the Peterson Institute. If Trump were both constitutionally and logistically capable of stopping all exports of PPE due to the pandemic, that would mean, theoretically, that there would be $1.1 billion in additional medical gear available for American health care workers.

That’s what Trump and his allies see. What they miss is that, in 2019, the U.S. imported more than $6 billion worth of PPE from around the world. If everyone followed the logic of “every country for itself,” America would end up with a net loss of equipment totaling nearly $5 billion. This year, the gap would probably be even larger, as production everywhere has increased in response to the pandemic.

The nationalists argue that we should be willing to trade generalized economic losses for the safety and security that comes from not being dependent on other nations for critical supplies during an emergency, and that the government should enact policies to support domestic manufacturing of critical supplies.

The risks in that approach should be evident. “Suppose we made all of the medical gear in the United States that we needed, and we did this through tariffs or ‘buy local’ provisions that made it either prohibitively costly or illegal for hospitals to purchase these from anyone but ourselves,” says Bown. That’s what Trump and his allies seem to want, a reality where America is fully self-sufficient but also cut off from the rest of the world. Just look at how domestic meat supplies have been disrupted when American factories were shut down by the epidemic. What would we have done if 3M’s respirator manufacturing plants in America were our only source, but had to be closed?

As a practical matter, it is obvious that the United States would be less capable of responding to the immediate COVID-19 crisis if it stopped trading with the rest of the world. “Re-shoring to America does not imply supply chain resilience,” Bown says. “In a pandemic, excessive reliance on anyone (including yourself) is bad.”

When Trade Restrictions Spark a Backlash

Trump intuitively understands why cutting off trade in the midst of a pandemic is a mistake, even if he doesn’t fully realize it. The story of hydroxychloroquine proves as much.

In early April, the president became enamored of the anti-malarial drug, which he believed could help treat COVID-19. As a result, the White House had a brief diplomatic row with India over Prime Minister Narendra Modi’s decision to block hydroxychloroquine exports (as part of a plan to reduce all drug exports from the country by 10 percent).

“If he doesn’t allow it to come out,” Trump told reporters on April 6, “of course there may be retaliation.”

Modi is a populist leader who has often been compared to Trump because of his nationalist rhetoric and willingness to demagogue against immigrants and minorities for political gain. He seems to view India’s domestic production of drugs such as hydroxychloroquine with the same shortsightedness that the American president applied to 3M’s mask-making operations. The dynamic was nearly identical, but the roles were flipped.

When it came to hydroxychloroquine, however, Trump was immediately able to discern why an Indian export ban was a terrible idea: It would mean American consumers might be cut off. And he was quick to threaten retaliation of the same sort the U.S. risks when denying trade to other countries.

Humanity’s fight against the coronavirus depends upon drugs made all around the world and as much PPE as can possibly be produced in short order, often by companies, such as 3M, that operate internationally. Export bans might look smart in the moment—keep those masks in America, where Americans need them—but the strategy can and will backfire. Indeed, in plenty of places, it already has.

Data collected by Simon Evenett, a professor of international trade at the University of St. Gallen and the coordinator of research for Global Trade Alert, show that 102 new limits on the export of medical gear have been imposed by 75 different governments since the beginning of the year. The results are counterproductive to fighting the coronavirus.

The Swiss medical supply outfit Hamilton Medical, for example, ramped up production by 50 percent in response to the outbreak in Europe. But then the company hit a snag. A key component of its ventilators came from Romania, a member of the European Union. Because the E.U. had imposed export restrictions on medical equipment and component parts, Hamilton Medical’s suppliers could no longer ship their wares to Switzerland, which is not an E.U. member.

“The premise of export bans—in this time of need, we need to keep our resources at home—is natural,” says Alex Tabarrok, an economist at George Mason University. “But the virus is a worldwide challenge that needs a worldwide response. We is everyone in the world.” Tabarrok says these kinds of “sicken thy neighbor” trade policies carry moral and ethical costs that go beyond the economic ones.

America’s protectionists have tried to ignore or downplay the economic harm that Trump’s go-it-alone policies have done to Americans. Those policies also mean America has less economic might with which to address a global crisis. The results could be catastrophic in humanitarian terms.

The Third World, in particular, is facing a potential perfect storm of bad trade policy. Export bans such as the ones Trump has pursued under the authority of the Defense Production Act obviously make fewer medical products available to the global market. By disrupting the flow of crucial components, trade restrictions such as the E.U.’s reduce the total amount of equipment the world can build during this time of crisis. And developing countries generally have higher tariffs to begin with—India, for example, imposes import duties on medical testing kits like the ones now being developed for detecting the coronavirus—a status quo that’s sure to hinder the flow of supplies to people who desperately need it.

“Developing countries have no production of ventilators, so they’re entirely dependent on importing the products,” says Clark Packard, trade counsel for the R Street Institute, a free market think tank. “If countries restrict exports of ventilators, it would be really gruesome.”

The Democratic Republic of Congo, one of the most populous nations in Africa, has about one such machine for every 10 million residents, according to World Health Organization data. By comparison, when the coronavirus first hit, the U.S. had about 160,000 ventilators, or roughly one for every 2,100 people. This is a problem that will not be solved with export restrictions and nationalist rhetoric in the developed world.

A Pandemic Is Not a War

Trade has been essential—and will continue to be essential—in combating the coronavirus pandemic. But tellingly, Trump views the outbreak as confirmation of his preexisting views.

“There’s nothing good about what happened with the plague,” Trump told Fox Business during a May 14 interview. “But the one thing is, it said ‘Trump was right'” about the risks of having “stupid supply chains all over the world.”

Nationalism always requires a political mobilization against some outside force. Trump has largely—though not exclusively—put China in that role. Long before he was declaring himself to be a “wartime president” in the fight against COVID-19, Trump was eager to declare what he thought would be a “good and easy to win” trade war with China as the primary opponent.

The coronavirus pandemic was not part of the plan, but it fit neatly into that narrative—and, indeed, the Chinese government’s attempt to keep the virus a secret during the early stages of the outbreak is a worse crime against the world than anything Trump has ever accused China of doing economically. It is also true, of course, that the Chinese government is a repressive dictatorship that abuses the rights of minorities and dissidents, disregards personal privacy and individual liberty, and violates international norms of commerce. And it is true, as the Trumpian nationalists like to point out, that the expansion of trade between that country and the global West has not ended these abuses.

But if you actually listen to what Trump and Navarro and the others are saying, it should become obvious that they see a confrontation with China and now the “war” against the virus as means to an end.

“We shouldn’t have supply chains. We should have them all in the United States,” Trump said in that same May 14 interview, spelling it out for all to hear. This has never been solely about strategically countering a competitor’s rise or trying to shift supply chains away from a potentially hostile communist country. It’s about autarky, or at least about detaching America from the global trading systems that have helped lift much of the world out of poverty.

That’s not a recipe for prosperity at home. It makes no more sense than suggesting that Ohio would prosper if it decided tomorrow to stop trading with the other 49 states.

Further trade restrictions will “hamstring the ability of U.S. pharmaceutical and medical equipment manufacturers to meet our future needs if firms are denied access to essential foreign supplies,” a group of more than 250 economists wrote in a May 13 letter to the White House, congressional leaders, and Trump’s top trade advisers. “Costly protectionism should not be foisted on patients at home and abroad.”

The same is true of Hawley’s latest idea: to yank the United States out of the World Trade Organization. Doing so would sever American businesses and consumers from the lower tariff rates that WTO member nations offer one another, potentially erasing $2.7 trillion in global gross domestic product, according to an analysis by two economists at the University of Indiana. Far from impoverishing Americans, as Hawley and others claim, the global trade that’s been unleashed since the WTO was founded in 1995 has contributed to a 17 percent increase in median weekly earnings for American workers. Leaving the WTO would also clear the way for China to expand its influence within that body, allowing it to dictate even more of the terms of global trade.

As the virus abates, the world will probably reconsider the approach it has taken toward China. If there are individual items for which America is heavily dependent on that country—particular medicines, perhaps—then manufacturers should look to further diversify supply chains. The federal government could encourage that behavior by lowering tariffs for imports from countries that compete with China to produce medical gear and pharmaceuticals. Pursuing nativist “buy American” policies or other forms of protectionism is neither the only solution nor the best one.

But the benefits of free trade and global economic integration created by decades of peaceful cooperation between nations should not be reconsidered. Taxing imports weakened America in advance of the pandemic. Raising barriers to trade made it more difficult to combat COVID-19 once the crisis hit. Nationalism will leave the world sicker and poorer.

Despite all that evidence to the contrary, Hawley, Trump, Navarro, and others seek to use the coronavirus as a cudgel to smash the system of global trade. They would replace it with an alternative that leaves America less free, less prosperous, and less capable of handling the next crisis.

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President Donald Trump issued a commutation today for his former campaign consultant Roger Stone, a notorious conservative political operative who was convicted last year of lying to Congress and witness tampering.

When Trump announced the commutation, Stone was days away from reporting to a federal prison in Jessup, Georgia, to serve 40 months behind bars. Stone’s allies had been lobbying Trump as Stone’s prison sentence approached, and Trump had hinted at the pardon in radio and TV interviews this week.

“Well, I’ll be looking at it,” Trump told reporters outside the White House Friday. “I think Roger Stone was very unfairly untreated, as were many people.”

The White House released a statement Friday night saying Stone was “a victim of the Russia Hoax that the Left and its allies in the media perpetuated for years in an attempt to undermine the Trump Presidency.”

“Mr. Stone was charged by the same prosecutors from the Mueller Investigation tasked with finding evidence of collusion with Russia,” the White House statement continues. “Because no such evidence exists, however, they could not charge him for any collusion-related crime.  Instead, they charged him for his conduct during their investigation. The simple fact is that if the Special Counsel had not been pursuing an absolutely baseless investigation, Mr. Stone would not be facing time in prison.”

The White House also cited the “egregious facts and circumstances surrounding his unfair prosecution, arrest, and trial,” such as the “spectacle” of Stone’s arrest by armed FBI agents, jury bias against Stone, and his advanced age, which puts him at risk of COVID-19 if he catches the virus in federal prison.

As with the Justice Department’s unprecedented attempt to dismiss charges against former national security adviser Michael Flynn after he pleaded guilty in open court to making false statements to the FBI, Stone’s pardon is a case of the Trump administration citing legitimate problems with the criminal justice system for nakedly cynical and self-serving ends. The Justice Department did not care about excessive sentencing or unfair prosecutions before. It does not care about them now, and it will not care about them when they’re used again to railroad defendants who aren’t Trump’s allies.

This isn’t the first time the Trump administration has stepped in to protect Stone. A federal grand jury indicted Stone last January on seven counts of obstruction of justice, false statements, and witness tampering stemming from Special Prosecutor Roger Mueller’s probe of Russian interference into the 2016 presidential election. Stone was convicted on all counts in November.

Federal prosecutors originally recommended a seven- to nine-year prison sentence for Stone, prompting Trump to fume on Twitter that this was “horrible and very unfair.” A day later, the Justice Department overrode the line prosecutors’ recommendations—an almost unheard of event—saying Stone deserved a far lighter sentence.

As Reason’s Jacob Sullum wrote, Stone’s sentence was indeed excessive, but the Justice Department’s sudden about-face was still “unseemly and smacks of legal favoritism.”

Stone’s lawyers tried to appeal his conviction, arguing the jury was politically biased against him. They also asked the court to delay sending Stone, 67, to federal prison because of the ongoing threat of COVID-19.

But U.S. District Judge Amy Berman Jackson rejected his appeal and his request for a two-month delay to the beginning of his prison sentence, instead granting him a two-week delay.

Stone got his start in politics in Richard Nixon’s infamous Committee for the Re-election of the President. From those auspicious beginnings, he carved out a career as a flamboyant campaign consultant, lobbyist, and “dirty trickster.” He got a tattoo of Nixon’s face on his back to complete the image.

Naturally, Stone gravitated toward Trump, whose tawdry brand of soap-opera politics and intrigue fit his style quite well. (“Politics with me isn’t theater. It’s performance art, sometimes for its own sake,” Stone told The Weekly Standard‘s Matt Labash in a definitive 2007 profile.) 

After he resigned from Bob Dole’s 1996 presidential campaign—following a National Enquirer story reporting that he had placed ads in several publications for swingers—Stone was a casino lobbyist for Trump and advised his brief Reform Party presidential campaign in 2000. 

Although Stone left Trump’s 2016 campaign under a cloud of recriminations and drama, he remained a staunch supporter of the president, and memorably showed up to the inauguration dressed like Snidely Whiplash, or perhaps the Babadook.

Success did not temper Stone’s passions. Once, on Twitter, he called former RNC chairman and White House chief of staff Reince Priebus “rancid penis.” Tragically, that tweet is now lost to the ether: Stone’s Twitter account was suspended in 2017, after he sent a series of profanity-laden messages to various CNN anchors. Judge Jackson later barred Stone from using social media, after he repeatedly violated a gag order during his trial.

The trial and Stone’s muzzling turned him into a martyr among hardcore Trump fans, complete with popular “Roger Stone did nothing wrong” t-shirts. 

Stone was no more a martyr than any other defendant who finds him or herself in the crosshairs of federal prosecutors—all the less so because he couldn’t seem to figure out that federal investigators, prosecutors, juries, and judges don’t appreciate political performance art.

Lucky for him, his old business associate Trump is a master of the medium.

“Roger Stone has already suffered greatly,” the White House statement concludes. “He was treated very unfairly, as were many others in this case.  Roger Stone is now a free man!”

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Daniel Lewis Lee is scheduled to be the first federal prisoner executed in 17 years on Monday, but this afternoon a federal judge put a temporary halt to it due to COVID-19 infection fears.

The judge is not concerned that Lee might get infected. Rather, the scheduling of his execution is being challenged by relatives of his victims. They have sued the Department of Justice to temporarily halt the execution because, while they are permitted to attend Lee’s execution, they are concerned that they risk coronavirus infection by traveling across the country from where they live to Terre Haute, Indiana, where Lee is incarcerated and will be executed. They argue the federal government cannot guarantee they will not be exposed to COVID-19.

Lee was convicted and sentenced to death for murdering a family of three in 1999—William Mueller, Nancy Mueller, and their 8-year-old daughter, Sarah Mueller—and dumping them in an Arkansas bayou. He has been sitting on death row for years because the federal government stopped executing prisoners back in 2003. Attorney General William Barr announced last year that he was restarting federal executions. Lee is scheduled to be the first.

But members of the victims’ family actually oppose Lee’s execution and want to see him remain in prison instead. The man who allegedly masterminded this crime, Chevie Kehoe, was sentenced to life in prison, and they believe Lee should get the same punishment.

An attempt to get the Supreme Court to intervene in these upcoming planned executions recently failed. But the relatives had another claim they were pushing. Under the Federal Death Penalty Act of 1994, when the federal government executes a prisoner, they must follow the statutory guidelines of the state where the inmate was sentenced to death. And Arkansas law requires that direct relatives of the victims “shall be present” at the execution if they wish to attend, unless the state can prove any of those relatives are a security risk.

Three relatives of the victims—Earlene Peterson (Nancy’s mother and Sarah’s grandmother), Kimma Gurel (Nancy’s sister), and Monica Veillete (Nancy’s niece) say they fall under this category, and therefore they must be allowed to attend. But they also say it’s dangerous to do so because of the potential COVID-19 infection dangers (Peterson is 81 and has congestive heart failure, putting her in a higher risk category). They asked a federal judge to delay Lee’s execution.

This afternoon, Chief Judge Jane Magnus-Stinson of the U.S. District Court for the Southern District of Indiana agreed. She writes, “In this case, the public’s interest in a prompt, orderly execution should give way to their interest in treating Ms. Peterson, Ms. Gurel, and Ms. Veillette with fairness, respect, and dignity.” She enjoined the Department of Justice from carrying out Lee’s execution Monday and will keep the injunction in place until the government can show that they can execute Lee while still allowing the family to attend safely.

Assuming this injunction holds through Monday, Wesley Ira Purkey is the next federal prisoner set for execution on Wednesday. Purkey’s spiritual advisor, a Buddhist priest, is suing for a similar delay because he, too, claims that he is at risk of COVID-19 infection should he attempt to visit Purkey.

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A gang of anti-liberal cancel culturalists came for Harvard linguist Steven Pinker in the form of an open letter to the Linguistic Society of America (LSA) calling for his removal as one of the LSA’s distinguished fellows and as a listed linguistics media expert. Why should be Pinker be “canceled” by the group? Because, the writers allege, Pinker “has a history of speaking over genuine grievances and downplaying injustices, frequently by misrepresenting facts, and at the exact moments when Black and Brown people are mobilizing against systemic racism and for crucial changes.” Interestingly, while the letter claims that Pinker’s nefarious behavior is taking place at the “exact moments” of anti-racist mobilization, most of the allegedly egregious instances it cites occurred years earlier.

The letter, which lists nearly 600 signatories, cites six instances of when Pinker purportedly engaged in “a pattern of drowning out the voices of people suffering from racist and sexist violence.” Let’s take a brief look at each assertion.

As mentioned above, though the letter claims Pinker’s nefarious behavior is taking place at the “exact moments” of anti-racist mobilization, the first censure cites a 2015 tweet in which Pinker declares that the “police don’t shoot blacks disproportionately.” In support of that claim, Pinker links to a 2015 New York Times op-ed by Harvard economist Sendhil Mullainathan in which he reports the findings of his research on racial discrimination and policing. Mullainathan forthrightly states, “Police killings are a race problem: African-Americans are being killed disproportionately and by a wide margin.” But his crucial point is that that is because black citizens have a disproportionate number of encounters with police. Given that any encounter with police could turn violent, Mullainathan’s data suggest that police are no more likely to shoot black citizens per encounter than they are to shoot white citizens. The causes for those extra encounters are rooted in structural social and economic problems, not least of which are poverty and the drug war. Pinker agrees that “the racial bias came into the formation of crime prone neighborhoods. Not in the behavior of the police once they’re actually in a confronting a suspect.”

The LSA member scolds’ second attempt at indicting Pinker of downplaying violence and injustice cites the fact that that the police had shot and killed nearly 1,000 people in 2017. Pinker is blamed for referencing a 2017 New York Times op-ed that suggested a way to reduce that terrible toll of killings by police: “Police kill too many people, black & white,” tweeted Pinker. “Focus on race distracts from solving problem, as we do w plane crashes.” Basically Pinker was endorsing the idea that to reduce police killings, each shooting episode should undergo in-depth independent forensic investigation the way that teams from the National Transportation Safety Board (NTSB) examine airplane crashes. Just as NTSB investigations try to figure out how to prevent future crashes, the goal of independent investigations of police shootings should be to devise new policing procedures that aim to minimize the chances of violence occurring between citizens and cops.

According to his critics, Pinker’s 2017 tweet citing the Times op-ed supposedly amounts to an “all lives matter trope.” In an interview with Reason Pinker agrees that “uttering it as a retort to the statement Black Lives Matter would seem to downplay the victimization of African Americans,” but insists that he has never repeated that slogan in any context. Pinker points out that all lives matter to researchers on the topic of police violence because “you’re literally committing logical blunder if you hold a belief that police are more likely to shoot unarmed African Americans and you don’t count up all the people that the police shoot.”

For their third example of Pinker’s alleged penchant for downplaying injustices, the letter’s writers object to a passage from his 2011 book The Better Angels of Our Nature: Why Violence Has Declined in which he noted that “in 1984 Bernhard Goetz, a mild-mannered engineer, became a folk hero for shooting four young muggers in a New York subway car.” Referring to Goetz as “mild-mannered” purportedly illustrates Pinker’s “tendency to downplay very real violence.” Pinker responds, “I was repeating the common characterization” of Goetz at the time in many news outlets. Indeed, it was.

For example, a 1985 New York Times article referred to Goetz as “mild-mannered” while also reporting that he had now become known as the “‘Death Wish Vigilante,’ folk hero of millions and for the moment, perhaps, the most talked-about man in the country.” The New York Times was not alone in referring to Goetz as mild-mannered. So did articles published in The Washington Post, the Los Angeles Times, Time magazine, and many other publications. Pinker mentions Goetz as an anecdote to illustrate his data about how fears occasioned by rising violent crime rates in the 1960s, ’70s, and ’80s had adversely affected the psychological, social, and economic well-being of the residents of many of America’s largest cities. “It was totally disingenuous to use that adjective as an insinuation that I thought that it was okay for a vigilante to shoot some muggers. It’s quite obvious from the context that I do not think that it was okay, but I was trying to give people a vignette of what it was like to live in American cities at the time.”

In their fourth point of indictment, the letter-writers focused on the 2014 rampage killing by a male student at the University of California, Santa Barbara, in which the murderer posted a clearly misogynistic rant. The virulence of the manifesto provoked some commentary asserting in the U.S. that the “expectation that violent misogyny in young men is normal and expected.” The LSA critics say Pinker downplayed “the actual murder to six women as well as systems of misogyny,” via a 2014 tweet in which he declared, “The idea that the UCSB murders are a part of a pattern of hatred against women is statistically obtuse.” When the letter-writers accuse people of bad faith, they should be more careful to get at least their basic facts right: In this case, the shooter/stabber killed four male students and two female students, not six female students.

“I think to credit rampage shooters as part of a system [of misogyny] is statistically obtuse,” says Pinker. He points out that rampage shootings are responsible for a tiny fraction of homicides and consequently he is “opposed to over-interpreting rampage shooters” as evidence that the patriarchy endorses the idea that “innocent women should be murdered by shooters” and is “a rather poor way to understand cultural trends.” In fact, a 2019 review of the motivations of mass shooters in the U.S. found that misogyny was the leading factor in only one case—the Santa Barbara rampage. Pinker notes the cultural trends with respect to violence against women in the U.S. are happily the opposite implied by the letter-writers. “In general, the trend for domestic violence is downward,” he says. “It’s a triumph of the women’s movement that fewer wives and domestic partners are killed and there is less spousal and girlfriend abuse.”

Pinker is right. A 2019 Congressional Research Report noted, “From 1993 to 2017, the rate of serious intimate partner violence victimization declined by 70% for females, from 5.7 victimizations per 1,000 females aged 12 and older in 1993 to 1.7 per 1,000 in 2017.”

As their fifth allegation, Pinker’s critics charge him with choosing to “publicly co-opt the academic work of a Black social scientist to further his deflationary agenda.” Pinker’s misdeed was a June 2020 tweet in which he characterizes a recent interview with his colleague Lawrence Bobo, a Harvard sociologist, as one in which Bobo “reflects (w cautious optimism) on race relations in the context of police killings of black men.” The article to which Pinker links explicitly characterizes the interview as one in which Bobo “dissects police killings of black men and the history and cognitive forces behind racial bigotry and violence, and why he sees signs of hope.” Pinker includes graphs displaying data from Bobo’s research showing the decline in overt racism over time among white people in America.

With respect to the claim that Pinker seeks to “publicly co-opt” the work of a colleague, Pinker responds, “Yeah, in the new Orwellian vocabulary citation is now appropriation.” He adds, “Bobo, my colleague and my dean, has presented data showing that fortunately overt racism has been in decline.” He does further note, “It’s a legitimate question whether the answers to the questions in the General Social Survey where Bobo got his data simply reflect the disappearance of overt racism and that the underlying attitudes are as racist as they ever were.” However, Pinker points to such evidence as declining Google searches for racist jokes that suggest that private racist attitudes are also ebbing. “As someone who frequently cites data on improvement, I’m used to this understanding that a reduction is not synonymous with disappearance,” he says. “Something can be better, not perfect; something evil can be reduced but not eliminated.” Still, Pinker argues that the decline in overt racism is “something we should celebrate because it means for the civil rights movement that the attempts to eradicate racism have not been a waste of time.”

In their sixth charge against Pinker, his opponents accuse him of racist “dogwhistling,” which they define as “a deniable speech act ‘that sends one message to an outgroup while at the same time sending a second (often taboo, controversial, or inflammatory) message to an ingroup.'” Pinker’s purported dogwhistles involved using the words “urban violence” and “urban crime” in two tweets citing two different Washington Post op-eds by two different sociologists who argue that defunding the police would pose problems. In the minds of those who seek to remove him from the LSA, those phrases are coded racist references in support of “views that essentialize Black people as lesser-than, and, often, as criminals.” As evidence of Pinker’s dogwhistling, the letter writers point out that neither commentator used those exact phrases in their op-eds.

Princeton sociologist Patrick Sharkey did state, “Violence is the fundamental challenge for cities: Nothing works if public space is unsafe.” Let’s see, urban is an adjective generally defined as relating to a city or of a city. As it happens, Sharkey, author of the book Uneasy Peace: The Great Crime Decline, the Renewal of City Life, and the Next War on Violence, wrote a 2018 New York Times op-ed entitled, “Two Lessons of the Urban Crime Decline” in which he argued (as he did in the Post op-ed) that community organizations working with the police could play a vital role in “combating urban violence.”

In his Post op-ed on the dangers of under-policing, Northeastern University criminologist Rod Brunson references longstanding complaints about ineffective policing by the “residents distressed urban neighborhoods.” He also pointed to the recent focus on “the dangers of police abuses for African Americans and other people of color, especially in lower-income neighborhoods,” further observing that the sort of violent crimes that the police have the greatest difficulty in solving “primarily cluster in the same communities.” Interestingly, Brunson is co-author of a 2019 article, “Race, Place, and Effective Policing” in the Annual Review of Sociology which notes, “Poor analyses and inappropriate descriptions of urban violent crime problems can lead to the adoption of problematic policing policies and programs that exacerbate racial disparities in the criminal justice system and diminish confidence and trust in its institutions.” Are Sharkey and Brunson dogwhistling too?

It apparently never occurred to the zealous letter-writers that instead of dogwhistling, Pinker might merely be using shorthand phrases on Twitter to alert readers to op-eds that he thinks shed light on contemporary questions about race and policing. “Dogwhistling is an intriguing exegetical technique in which you can claim that anyone says anything because you can easily hear the alleged dogwhistles that aren’t in the actual literal contents of what the person says,” observes Pinker. “I think that you could replace dogwhistle with auditory hallucination and the accusation would be exactly the same.”

So what motivated the letter-writers to launch their righteous attack on Pinker? “It is part of a larger movement to try to accuse as many people as possible of various forms of prejudice and bigotry in the belief that is the way to make the world a better place,” argues Pinker. His critics are embracing a mindset that “does not see the world as having complex problems that we ought to understand better, the better to diagnose and treat, but rather as a kind of warfare between powerful elites and oppressed masses.”

“In this mindset,” he notes, “analysis, debate and evidence are just tools of propaganda exercised by those in power and that what has to happen is not a deeper understanding of social problems but a wresting of power from elites and redistributing it to disenfranchised.”

Pinker believes he was targeted as part of a larger movement “seeking monsters to destroy.” That is practitioners of what has been called “Offense Archaeology” go after prominent people by “trolling through tweets and through statements seeking to find evidence—however tortured—that there are signs of prejudice behind them.”

He adds, “It’s also part of these new exegetical tools that woke culture has deployed where disagreement is now labeled ‘silencing’ and ‘drowning out’ and ‘harm.’ Now the false ascription of belief is now the detection of ‘dogwhistles’—an intriguing tool of hermeneutics in which you can accuse anyone of saying anything even if they didn’t say it because you can always hear the dogwhistle if you yourself are a canine with hypersonic hearing.”

On July 8, the LSA’s executive committee issued a letter to Pinker affirming that the group “is committed to intellectual freedom and professional responsibility. It is not the mission of the Society to control the opinions of its members, nor their expression. Inclusion and civility are crucial to productive scholarly work. And inclusion means hearing (not necessarily accepting) all points of view, even those that may be objectionable to some.”

Round one to Pinker, but the woke culture war against liberalism is far from over.

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There is much disagreement about other aspects of the Supreme Court’s recent performance, few commentators doubt the crucial significance of Chief Justice John Roberts’ role in determining the outcome of major cases. But while it’s difficult to deny Roberts’ importance, there are widely divergent interpretations of what he is doing and why.

In an insightful recent New York Times op ed, co-blogger Jonathan Adler argues that Roberts is a “judicial minimalist” who “seeks to avoid sweeping decisions with disruptive effects.” On this account, he  wants “to resolve cases narrowly, hewing closely to precedent and preserving status quo expectations.” Some conservative critics of Roberts’ jurisprudence argue that he lacks “courage” and therefore avoids making decisions likely to anger the left. Northwestern University law professor John McGinnis contends that Roberts is balancing a number of different considerations, trying to “maximize” some combination of achieving conservative jurisprudential goals and protecting the Supreme Court’s institutional standing.

Each of these theories have useful insights, particularly the first and third. But none fully accounts for Roberts’ major decisions since he became Chief Justice.

Jonathan Adler has effectively shown that judicial minimalism really is an element of Roberts’ thinking. But as he recognizes, “there are significant exceptions (most notably, Shelby County v. Holder, which invalidated a major component of the Voting Rights Act).” If Shelby County were the only such exception, or one of only a very small number, it could perhaps be discounted. But, in reality, there are a great many important cases where Roberts has cast crucial votes to overrule precedent, upset existing expectations or both. Notable examples include Parents Involved in Community Schools v. Seattle (2007) (severely limiting affirmative action programs in primary and secondary schools); Citizens United v. FEC (2010) (overturning precedents and laws limiting corporate speech rights), Janus v. AFSCME (2018) (overturning longstanding precedent allowing states to mandate mandatory union dues for public employees), Knick v. Township of Scott (2019) (reversing longstanding precedent barring most takings cases against state and local governments from federal court). This year, Roberts cast the decisive vote in Espinoza v. Montana Department of Revenue, which is likely to lead to the invalidation of Blaine Amendments barring state assistance to religious schools in 37 states; he also voted with the majority in Bostock v. Clayton County, a decision overturning many years of lower court (though not Supreme Court), executive branch, and  congressional precedent holding that sexual orientation discrimination is not forbidden by the Civil Rights Act of 1964. And this list could easily be extended.

My point here is not to criticize Roberts’ decisions in these cases. I actually agree with nearly all of them (Janus is a possible exception). In the Knick case, I authored an amicus brief urging the result the Court reached, have written articles defending the result and explaining why the Court was justified in overruling precedent in this instance. Rather, my point is that these decisions are hard to defend on  grounds of judicial minimalism. If Roberts has a commitment to minimalism, he also evidently has other commitments that he values more. When the two come into conflict, the latter often prevail, including in a wide range of high-profile cases.

The list of Roberts’ non-minimalist decisions also undermines claims that he lacks the “courage” to reach decisions that seriously offend the left. With the notable exception of Bostock, all of the cases I listed attracted widespread liberal criticism, often even anger. The same, of course, is true of Shelby County v. Holder. Citizens United generated more outrage on the left than any other Supreme Court ruling of in many years; it was also  unpopular with the general public. These reactions were predictable. Yet Roberts still cast a decisive vote for what became the majority opinion.

It’s worth noting that Roberts’ also deeply offended the left with his decision in the 2018 travel ban case (it angered me as well). I continue to believe it was one of the worst Supreme Court decisions of my lifetime. But one criticism I can’t make against it is the claim that it was a written by a Chief Justice who lacks the courage to offend the political left.

The idea that Roberts seeks to offend the left may contain one small kernel of truth: he does not want to completely alienate the left to the extent that they come to see the court he leads as illegitimate. He likely recognizes that the Court could potentially suffer a “legitimacy crisis,” which could lead to measures such as court-packing or politicians refusing to obey judicial decisions that go against them. But, by the same token, he also would prefer to avoid alienating the political right to such an extreme degree, either.

In sum, I think Roberts has only a modest and limited commitment to judicial minimalism, one that in his mind often gets outweighed by other considerations. And while I don’t claim that he’s a profile in courage, he’s also more than willing to attract left-wing criticism.

McGinnis’ strategic maximization theory perhaps comes closest to accounting for Roberts’ jurisprudence. As he points out, Roberts’ willingness to balance jurisprudential and strategic considerations is not unusual for a chief justice. He is in this respect following in the footsteps of previous chiefs, including John Marshall and his own immediate predecessor William Rehnquist (for whom Roberts clerked). McGinnis also notes that Roberts is in an unusually strong position to engage in balancing, because he’s not only the chief justice but—since the retirement of Justice Anthony Kennedy in 2018)—also the key swing voter on the Court:

His performance this term has been completely in keeping with that distinctive self-consciousness and concern with protecting an institution that he no doubt sees under threat. Court packing again poses a substantial threat. Several Democratic candidates for president called for it, and Democratic senators have threatened to eliminate the filibuster, so it might be achieved.

No chief justice wants to be remembered as the one who presided over court packing. Thus, it is not surprising that in high-profile issues Roberts moved decisively left, particularly in cases that concerned DACA and abortion rights. Dreamers and the right to abortion command majorities in the country and overwhelming majorities among Democrats who will decide whether court packing moves forward in a unified Democratic government.

On the other hand, Roberts wrote two opinions delivering long-sought victories to conservatives in Seila v. CFPB, where he broadened the President’s power to fire the heads of administrative agencies and in Espinoza v. Montana Department of Revenue where he held that religious schools could not be prohibited from participating in programs in which a state contributed to private school funding. No one outside the beltway cares much about the removal power of the President, and the exclusion of religious schools is unpopular among the public, though not among academics of course.

Even in the DACA and abortion cases, Roberts may have been creating a foundation for conservative victories at a more propitious time. The DACA case strengthened the requirements for agency explanations of its decisions, which may be used to constrain the administrative state. His decisive opinion for himself alone in the abortion case subtly cut back on the balancing test that would likely invalidate more restrictions on abortions. John Roberts was a history major at Harvard and his model is John Marshall. He wants to leave the Court as strong as he found it, even if that means bobbing and weaving to achieve his jurisprudential and ideological goals.

I think John underestimates the extent of left-wing opposition to the Espinoza decision, and the degree to which state support for religious schools has (however unfortunately) gotten caught up in our culture wars. But the general thrust of this seems right.

As he explains, Roberts has conservative jurisprudential goals that he seeks to achieve. But he also wants to preserve the Court’s institutional standing, both for its own sake, and because he knows he is unlikely to achieve any of his objectives if the Court’s position is seriously undermined by court-packing or some other similar development.

At the same time, this theory cannot easily account for the pattern of his decisions. It isn’t the case that he gives the left what they want in every particularly high-profile case, or that he does so in those where the liberal position is popular with the general public.  Citizens United, Janus, and Shelby County are all notable counterexamples.

Thus, it seems likely to me that Roberts’ decisions in high-profile cases are also in large part dictated by how strongly he cares about the legal issues at stake. For example, cases like Janus and Citizens United (as well as many of his other votes), suggest that he has a strong commitment to a broad conception of freedom of speech, and is willing to offend both the left and the general public in order to promote it.

All of this is consistent with the strategic maximization theory, at some level.  The theory does not claim that institutional and reputational concerns will always outweigh jurisprudential ones. But it does make it difficult to test the theory, or to use it to generate determinate predictions about future cases.

Unlike justices such as Stephen Breyer and the late Antonin Scalia, Roberts has never systematically articulated a general judicial philosophy, unless you count his famous statement analogizing judges to umpires calling balls and strikes. He has also been careful not to tip his hand too much about which areas of law he considers especially important. Thus, it is hard to tell when institutional concerns will outweigh other considerations in his mind.

If I had to pick, I would say that Roberts is more a strategic balancer of multiple values than he is either a judicial minimalist or a coward fearful of offending the left. But his jurisprudence is not easy to pin down. Of course, that might be a strategic choice, too.

 

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Seven students are joining a National Women’s Law Center (NWLC) lawsuit challenging new guidelines related to Title IX, the federal law that prohibits education discrimination on the basis of sex. Some of their stories suggest that Democrats’ distorted descriptions of the changes could be doing real damage.

U.S. Secretary of Education Betsy DeVos formally issued the new rules—set to take place August 14—in May 2020, following a massive influx of public comments since she first proposed them back in 2018. But her proposal also ushered in a wave of hyperbolic, misleading, and dishonest claims about what these proposed changes would mean.

Reality-challenged rhetoric about the rule changes has come from folks claiming to represent students’ best interests, like the NWLC. But it’s hard to see how letting young people think the federal government wants schools to stop punishing rapists benefits students—or anyone but Democrats looking to portray the Trump administration as soft on campus rape.

In the NWLC lawsuit, “plaintiffs include a fifth grader in Michigan who fears that her elementary school will not be required to formally investigate and punish her classmate for assaulting her four times over two months” and “a recent graduate of the University of California, Santa Barbara, who decided not to formally report her rape at an off-campus apartment because she believed that the final rule rendered her complaint futile,” according to The New York Times.

That’s incredibly sad, since of course there’s nothing in the new rules saying schools shouldn’t investigate and punish students for sexual assault. (Read more details about what the changes will do here.) Students are being misled by what’s turning out to be a damaging disinformation campaign.

Shiwali Patel, senior counsel at the National Women’s Law Center, told the Times “the fear these students are living with show how real the consequences are of DeVos’s rule.”

But much of this student fear isn’t rooted in what the DeVos rules actually say, it’s driven by Democratic politicians and groups like the NWLC fearmongering about them. When the new rules were first released, Sen. Mark Warner (D–Va.) said they would “undoubtedly make students less safe,” while Rep. Barbara Lee (D–Calif.) called them an attack on “student survivors’ rights.” And Fatima Goss Graves, president and CEO of the National Women’s Law Center, said they send “the message loud and clear that there is no point in reporting assault.”

The NWLC is far from alone in legally challenging the Department of Education’s new Title IX guidance. In May, the American Civil Liberties Union (ACLU) filed a lawsuit against DeVos and the Education Department, on behalf advocacy group Know Your IX.

And 18 state attorneys general (AGs) are challenging the new rules, in an action filed June 4 in the U.S. District Court for the District of Columbia and led by Democratic attorneys general Xavier Becerra of California, Josh Shapiro of Pennsylvania, and Gubir Grewal of New Jersey.

Attorneys general for Colorado, Delaware, Illinois, Massachusetts, Michigan, Minnesota, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington, Wisconsin, and Washington, D.C.—all Democrats—are also part of the lawsuit.

New York is also (separately) challenging the rules, with state Attorney General Letitia James explicitly invoking Trump in her explanation.

“The president has repeatedly shown that he doesn’t think sexual harassment is a serious matter, but his callousness now threatens our youngest and most vulnerable and could increase the likelihood of sexual harassment and abuse of students in schools,” James said in an announcement about the suit. The announcement misleadingly describes DeVos’ rules as “undo[ing] protections required by Title IX,” as if prohibitions of gender and sex discrimination at schools will no longer exist.

Presumptive Democratic Party presidential candidate Joe Biden has already vowed to reverse the rule changes if elected.

It seems pretty clear that despite the seriousness of the issues involved, Title IX has become yet another set of partisan talking points to tussle over. But those using the DeVos changes to spread misinformation about campus assault might want to think about who is really being harmed by their rhetoric.

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Daily COVID-19 deaths in the United States, which have fallen dramatically since the spring and continued to drop even as newly identified cases surged, are now rising.  According to the Worldometers tally, COVID-19 deaths averaged 948 during the last three days, compared to 302 during the previous three days. That’s a pretty alarming increase in a short time, and it will have a significant impact on the total death toll if it proves to be more than a temporary spike.

The seven-day average of daily deaths, which is a better indicator of trends, has increased less dramatically. According to data scientist Youyang Gu’s calculations, that number fell from 1,122 on May 25 to a low of 510 on July 4 and has since risen to 641, which is still more than 70 percent lower than the peak average of 2,238 on April 18. “Health experts cautioned that it was too early to predict a continuing trend from only a few days of data,” notes The New York Times.

Gu, who has a good track record of predicting COVID-19 fatalities, is now projecting that daily deaths will rise to 774 in late August, then gradually fall to fewer than 500 by the end of October. He has increased his estimate of total deaths by October 1 from about 186,000—his projection at the beginning of this week—to about 192,000, rising above 200,000 by mid-October.

Because newly identified infections have more than tripled since Memorial Day, from fewer than 20,000 to more than 60,000 yesterday and the day before, daily deaths were bound to rise eventually. (According to the Centers for Disease Control and Prevention, the lag between laboratory confirmation and death is about two weeks.) Yet the nationwide crude case fatality rate—deaths as a share of confirmed cases—continues to fall. It is now 4.3 percent, down from more than 6 percent in mid-May. That trend likely reflects not only broader testing but also a younger mix of patients and improved treatment.

If the patient mix remains about the same, the case fatality rate could keep dropping even as daily deaths rise. But if the young and healthy people who seem to be driving the recent jump in cases pass the virus on to a lot of people who are more vulnerable to COVID-19, the case fatality rate could go up, as it did from late March to mid-May, when the patient mix was older and less healthy. Much will depend on precautions aimed at protecting people in high-risk groups.

The upward national trend in COVID-19 infections is largely due to dramatic increases in several Sunbelt states. On Wednesday, for example, California, Florida, and Texas, where a little more than a quarter of Americans live, accounted for more than two-fifths of newly confirmed cases.

“The current surge in coronavirus cases in the United States is being driven by states that were among the first to reopen their economies, decisions that epidemiologists warned could lead to a wave of infections,” the Times says. But California’s prominence in the recent wave of infections complicates that narrative.

California, which led the nation in imposing a lockdown and has been lifting it only gradually, nevertheless saw newly identified cases rise more than fivefold between Memorial Day and July 7, from 2,175 to 11,694. It recorded about 7,000 cases on Wednesday. “The state was once seen as a model for how to contain the virus,” the Times says, “but experts blame the current surge on an inconsistent adoption of prevention strategies and a haphazard reopening process that gave people a false sense that they were in the clear.”

Still, California does seem to be doing better in some respects than Texas and Florida, which have seen even bigger increases in newly identified cases and daily deaths since Memorial Day. The seven-day average of COVID-19 deaths in California rose from 70 on May 25 to 85 yesterday. During the same period, the average rose from 26 to 66 in Texas, and from 36 to 56 in Florida.

Then again, Texas and Florida have lower case fatality rates: 1.3 percent and 1.7 percent, respectively, compared to 2.3 percent in California. That suggests patients are doing somewhat worse in California, especially since it has tested a larger share of its population than Texas or Florida has, which would tend to reduce the apparent fatality rate. And according to Gu’s estimates, the COVID-19 reproductive number—the number of people infected by the average carrier—is slightly higher in California than in Texas or Florida.

What about states that never imposed stay-at-home orders? Since Memorial Day, daily new cases are up dramatically in Arkansas, Iowa, North Dakota, South Dakota, and Wyoming, but not in Nebraska. It sure looks like politicians’ decrees play a smaller role in this pandemic than The New York Times thinks.

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

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Restaurants across the country have had their dining rooms shuttered or been forced to operate under restrictive, profit-crushing social distancing protocols. City politicians are trying to throw them a lifeline in the form of price controls on delivery apps.

On Wednesday, the Portland City Council voted unanimously to cap the fees third-party delivery apps like Uber Eats and DoorDash can charge restaurants to no more than 10 percent of an order. The emergency law, which goes into effect immediately, limits these apps to a 5 percent fee for meals that are ordered through the app but delivered by restaurant employees.

It also prohibits companies from reducing delivery workers’ pay to cover lost fees.

“Local restaurants are a vital community asset that provide food and jobs and contribute to the culture of Portland,” said Portland City Commissioner Chloe Eudaly, who sponsored the legislation alongside Mayor Ted Wheeler, in a press release. “This ordinance protects restaurants from price-gouging during a declared emergency while protecting workers from reductions to their compensation.”

Portland is hardly the first city to adopt commission caps. San Francisco, Los Angeles, Washington, D.C., and New York City have all done so as well, although these cities have limited fees to 15 percent of an order. They come at a time when restaurants are unusually dependent on delivery orders.

The counties of Multnomah, Washington, and Clackamas, which collectively cover the city of Portland, remain in phase one of the state’s reopening tiers.

That means restaurants are allowed to serve customers inside but only if they are able to keep six feet of distance between tables. The maximum number of people allowed in a restaurant is either 250 or one person per 35 square feet of floor space, whichever is less. On-site food and drink service has to stop at 10 p.m.

These guidelines really restrict how many customers are able to be served. “Most floor plans pre-COVID were designed for efficiency,” Nick Zukin, owner of Mi Mero Mole in downtown Portland, told Reason back in June, explaining that the phase one guidelines meant he had to downsize from 60 to 20 seats in his restaurant. (Mi Mero Mole announced in late June that it was closing for good.)

Before COVID-19 hit, there were already simmering tensions between restaurants and these apps over the fees that they charged, which could be as much as 30 percent of the cost a dish.

Katy Connors of the Portland Independent Restaurant Association (PIRA), told OPB that those fees often erased businesses profit margins, but that they were willing to accept them because delivery apps were good advertising. Someone who ordered an unprofitable delivery meal might be more willing to patronize the restaurant in person, she said.

With restaurants being forced to operate at reduced capacity, and customers less willing to eat out in public, the promotional benefit of delivery apps is essentially erased. Portland’s reservations were down about 80 percent from this time last year, according to data from the restaurant reservation app OpenTable.

In response, PIRA and the Asian Pacific American Network of Oregon pushed lawmakers to adopt a cap on delivery fees.

Delivery app companies have said in written testimony to the city council that the 10 percent fee they are allowed to charge customers doesn’t cover their costs and will require them to increase prices for consumers, OregonLive reports. They warn that the knock-on effect could be that fewer people will end up ordering from restaurants.

It’s also hard to argue that restaurants are being gouged by delivery apps that are themselves losing money. Uber reported that Uber Eats lost over $300 million in the first quarter of 2020. Grubhub lost $33 million in the first quarter of 2020, despite seeing its revenues grow.

“Although delivery apps have proved quite popular, no one has devised a decent business model for them. At the moment, they’re kept afloat thanks to lavish subsidies from investors,” wrote Bloomberg‘s editorial board in late May. “That means consumers get deliveries for much less than they’d otherwise have to pay, and restaurants, far from being scammed, are in fact paying significantly below what the market would demand absent such support.”

The fact that restaurants don’t feel like they can just walk away from their relationship with delivery apps suggests that they do in fact still derive benefits from them.

That doesn’t mean restaurants aren’t struggling right now. The industry is in crisis, with some analysts estimating that up to 20 percent of eateries will never reopen.

But price controls are always a blunt tool. They could end up tanking delivery apps that were losing money even during much rosier economic times. A more constructive approach would be for politicians to lift lockdown orders so that restaurants can reopen the actually profitable portions of their business.

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