Tag: hit&run

Have you ever wondered why it seems like some places have a high concentration of elected officials with little to no economic knowledge whatsoever? I have. While I don’t have a solution for this deficiency, I’d like to highlight one city in particular where this seems to be the case: San Francisco.

The COVID-19 pandemic now underway in the United States is, of course, wreaking havoc throughout our economy. Fortunately, entrepreneurs and corporate managers have been trying to figure out how to transform their operations in order to keep their businesses afloat. Thank goodness for the profit motive!

One industry has moved impressively fast: food service. It didn’t take long for restaurants to shift their energy and resources toward selling food for pickup or delivery. Throughout the country, consumers are now as never before ordering food from their favorite joints—fancy and greasy spoons alike—to enjoy in the comfort of their homes.

This has caused a surge in demand for drivers to deliver the food. Pre-coronavirus, many restaurants didn’t deliver at all, so they had to create home-delivery capacities from scratch. Others have had to step up capacity by adding more drivers. And many restaurants now increasingly rely on delivery services like UberEats and Grubhub. Following this sharp increase in demand for driving services, delivery fees have risen. This increase in fees is exactly what economics predicts will happen and recommends should happen. The higher fees reflect the increased demand for delivery services while simultaneously giving stronger incentives to more people to become delivery drivers.

However, San Francisco legislators don’t get it. On April 10, the city of San Francisco issued an emergency order mandating that delivery companies that wish to continue to operate in the city cap the fees they charge restaurants at 15 percent of each order’s amount. Mayor London Breed explained, “These fees typically range from 10 percent to 30 percent and can represent a significant portion of a restaurant’s revenue, especially at a time when the vast majority of sales are for delivery. This commission fee can wipe out a restaurant’s entire margin.”

Yes, these fees will eat up some of the restaurants’ profits if restaurants decide not—or are unable—to shift at least some the higher costs on to their customers. But having too few or no delivery drivers won’t help their business either, and this government-imposed cap on fees will reduce the number of drivers. Unable to charge higher fees, delivery services cannot pay drivers higher wages. This results in fewer drivers and longer delivery times.

Capping these fees also reduces incentives for entrepreneurs to start new delivery services—new services that would ensure fees stay as low as possible over time.

Meanwhile, following San Francisco’s emergency order, companies like Grubhub and UberEats explained why the fee cap would force them to reduce the scope of their services. UberEats noted that the limit on fees makes it difficult to cover operating costs, so they would need to stop delivering food to Treasure Island, a lower-income neighborhood further away from the city center. This predictable response triggered an equally predictable but economically ignorant outrage from politicians.

San Francisco Supervisor Matt Haney tweeted, “This is DESPICABLE, outrageous behavior from @UberEats.” According to him, “The caps on commissions are to protect small businesses and ensure they can survive during a GLOBAL PANDEMIC.” Haney’s disregard for the law of supply and demand underscores the fact that when governments make it impossible for companies to cover the costs of supplying some service, they’ll stop supplying that service.

San Francisco politicians constantly treat reality as if it’s optional. For instance, through strict zoning and other land-use regulations, they have artificially inflated the wealth of single-family homeowners by obstructing the building of multifamily homes. As a result, San Francisco is one of the least affordable cities for younger and lower-income people. Its politicians then double down with rent-control regulations to try to fix the negative impacts of their zoning rules. Yet these regulations only further reduce the supply, and further raise the price, of housing in the city. Yet to this day, elected officials there persist in their misguided policymaking, against the advice of every economist.

If politicians in San Francisco really want to help their citizens, they may want to brush up on basic economics. That would be a treat.

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Numerous “nonessential” businesses around the country have been shuttered by state and local government “lockdown” orders in an attempt to control the spread of the coronavirus pandemic. This has inflicted huge losses on their owners and employees. Some have filed lawsuits arguing that they are entitled to compensation under the Takings Clause of the Fifth Amendment. In a March 20 post, I explained why the vast majority of such claims are highly unlikely to succeed under current Supreme Court precedent. Since then, the Pennsylvania Supreme Court has issued a decision rejecting coronavirus takings claims based on reasoning similar to that I outlined in my post. My sense is that most experts on the subject hold similar views.

But Prof. F.E. Guerra-Pujol of the University Central Florida has written an article, published by the Mercatus Center at George Mason University, which takes a contrarian position. He argues not only that businesses closed by shutdown orders are entitled to takings compensation, but that that outcome is required by an unlikely source: the Supreme Court’s 2005 ruling in Kelo v. City of New London:

[T]here is a handy and well-known precedent that supports lockdown compensation under the takings clause. Consider the leading Supreme Court case on the takings clause, Kelo v. City of New London. In this 2005 ruling, the Supreme Court held that the city of New London, Connecticut, could acquire 15 residential properties without the owners’ consent in order to transfer them to a private developer. However, the city had to compensate the owners for the value of the taken property.

How did the Supreme Court reach such an egregious result in that case? By taking a very broad and expansive interpretation of the “public use” requirement of the takings clause. In the Kelo Court’s words, “When this Court began applying the Fifth Amendment to the States at the close of the 19th century, it embraced the broader and more natural interpretation of public use as ‘public purpose.’. . . Without exception, our cases have defined that concept broadly, reflecting our longstanding policy of deference to legislative judgments in this field.”

Although many conservative jurists, including [Ilya] Somin himself, have criticized this controversial Supreme Court decision for giving the government too much leeway, Kelo can be turned on its head to support the argument that the takings clause, including its requirement of just compensation, applies to coronavirus lockdowns. After all, the sole rationale of these lockdown orders is to promote public health. Accordingly, if “public use” under the takings clause means any legitimate public purpose, per Kelo, then what greater “public purpose” is there than public health?

Having written a book and numerous articles about the Kelo decision and its impact, I thought I was familiar with all of the different possible interpretations of that ruling. Still, I admit Guerra-Pujol’s theory took me by surprise. It’s definitely a creative and original idea. But, unfortunately, it has no basis in the Court’s decision.

Kelo simply does not address the issue of what qualifies as a “taking”—the main point in contention in the shutdown cases. In Kelo, both sides agreed that the use of eminent domain to seize fifteen residential properties for “economic development” purposes was a taking requiring compensation. The point at issue whether it was for a “public use” or not. If the courts had ruled that the purpose of the taking was not a public use (which would have been the correct decision, in my view), the government would have been forbidden to take the property even if it did pay compensation. On the other hand, the absence of a public use would be irrelevant if the government action in question was not a taking in the first place.

By contrast, in the shutdown cases, the whole point at issue is whether the government has “taken” the property in question at all, as that term is understood under the Fifth Amendment. Kelo simply did not address that question. It is true, as Guerra-Pujol notes, that the Kelo majority points out that eminent domain can sometimes be used for “police power” purposes, including promoting “public health.” But the Court did not overrule or limit earlier decisions holding there is no taking in many situations where the government restricts property rights for police power purposes. As I explained in my earlier post on takings and shutdowns, this is especially true in situations where the property in question—or the owner’s use of it—itself poses a threat to public health, as opposed to one where the the government restricts property rights in order to combat a threat elsewhere. In the latter scenario, courts are more willing to grant takings compensation, but the coronavirus situation is an example of the former.

This distinction also undercuts Guerra-Pujol’s reliance on the 2012 Arkansas Game and Fish Commission case, in which the courts ruled takings compensation was required when the federal government deliberately flooded land in order to prevent potentially more severe flooding elsewhere. In that case, the land destroyed by the federal government did not in any way itself threaten public health or safety. It was just in the wrong place at the wrong time. That isn’t true of a business whose continued operation might facilitate the spread of a deadly disease.

Guerra-Pujol also argues that shutdown takings plaintiffs can prevail under the Penn Central test, which applies to takings challenges government regulations that are not automatic “per se” takings. For reasons laid out in my earlier post, I think most shutdown plaintiffs are likely to lose under that test—which, in general, tends to be applied in ways favorable to the government. Admitted, as I and other critics have long emphasized, the Penn Central is often vague and unclear. But unless the Supreme Court decides to reinterpret it in a way more favorable to property owners, it’s unlikely that any but very atypical shutdown plaintiffs can prevail under it.

Even more importantly, the Penn Central test only comes into play if the plaintiffs can get around the police power issue. And that is itself highly unlikely. Guerra-Pujol speculates that “conservative” judges might be willing to reinterpret both Penn Central and the police power cases to enable the plaintiffs to prevail. But if these judges were going to greatly strengthen constitutional protection for property rights under the Takings Clause, it’s highly unlikely they would use this particular set of cases to do so—a situation where the government has a much stronger than usual public health rationale for its actions, and large numbers of lives could be at stake.

As I previously noted, there might be unusual cases where shutdown plaintiffs could potentially prevail, as in situations where the public health benefits of shutting down a category of businesses might be extremely low, or situations where the shutdown has deprived plaintiffs’ property of virtually all economic value. But such cases are likely to be rare.

Guerra-Pujol also errs in describing me as a  “conservative” legal scholar. I am, in fact, a libertarian—a distinction that is especially important in the Trump era, where the two differ on major issues such as immigration, trade, law enforcement abuses, and government spending; though admittedly it is the case that the two groups still largely agree on Kelo (with the notable exception of Donald Trump, who is a longtime defender of that decision).

From the outset, I have emphasized that there is a strong moral case for compensating at least some victims of shutdown orders. But the Takings Clause is unlikely to be an effective vehicle for getting it.

 

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So reports the Boston Globe (Deirdre Fernandes):

[O]n Saturday night, BU chemistry professor Binyomin Abrams sent an e-mail to one of his classes warning them that he had become aware of potential violations of the code of conduct and that there are consequences to cheating.

“We have learned that some of you have used various means, including websites such as Chegg [a tutoring and homework help service], to get help during the quizzes given remotely,” Abrams wrote. “Doing so is a clear violation of the academic conduct code.”

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From Judge David J. Hale’s order in Maryville Baptist Church, Inc. v. Beshear (Apr. 18), rejecting a challenge to the Gov. Beshear’s shutdown order that included religious worship:

Plaintiffs first argue that the Governor’s orders amount to unconstitutional restrictions on their rights to free speech and assembly…. [T]o support their argument that the orders “are content-based restrictions on constitutionally protected liberties,” Plaintiffs appear to mischaracterize the Commonwealth’s prohibition on gatherings.

The order in question states in no uncertain terms that “[a]ll mass gatherings are hereby prohibited.” This prohibition applies not only to faith-based gatherings, but to “any event or convening that brings together groups of individuals, including, but not limited to, community, civic, public, leisure, … or sporting events; parades; concerts; festivals; conventions; fundraisers; and similar activities.” The “19 categories of businesses” allowed by subsequent order to continue operating are not, as Plaintiffs repeatedly suggest, exceptions to the prohibition on mass gatherings. Rather, by the plain terms of the March 19 Order, “[a]ll mass gatherings are … prohibited.”

Plaintiffs seek to compare in-person attendance at church services with presence at a liquor store or “supercenter store[].” The latter, however, is a singular and transitory experience: individuals enter the store at various times to purchase various items; they move around the store individually—subject to strict social-distancing guidelines set out by state and federal health authorities—and they leave when they have achieved their purpose. Plaintiffs’ desired church service, in contrast, is by design a communal experience, one for which a large group of individuals come together at the same time in the same place for the same purpose.

A more apt comparison, then, is a restaurant or entertainment venue—where patrons are gathered simultaneously for a longer period of time to eat and socialize—or a movie, concert, or sporting event, where individuals come together in a group in the same place at the same time for a common experience. And all such activities are temporarily prohibited.

Similarly unpersuasive is Plaintiffs’ contention that the orders violate their right to freely exercise their religion by discriminating against religious conduct. Again, the order temporarily prohibits “[a]ll mass gatherings,” not merely religious gatherings. Religious expression is not singled out. And further, contrary to Plaintiffs’ assertions, there are no identified exceptions to the prohibition on mass gatherings [such as for liquor, warehouse, and supercenter stores]. {In service of their argument, Plaintiffs make liberal use of the term “gather.” Merriam-Webster defines “gather” as “to come together in a body”; a “gathering” is an “assembly” or “meeting.” These terms do not, as generally understood, encompass separate, uncoordinated shopping trips by unrelated individuals. Presumably, no coordinated gathering in a grocery or liquor store would be permitted under the temporary restrictions.}

Finally, to the extent Plaintiffs argue that the orders violate the Kentucky Religious Freedom Restoration Act by substantially burdening the exercise of their sincerely held religious beliefs, the Court finds, based on the materials submitted by Plaintiffs, that the Governor will likely be able to meet the Act’s requirement of “clear and convincing evidence that [the government] has a compelling governmental interest in” the restrictions “and has used the least restrictive means to further that interest.” Plaintiffs do not contend that the Commonwealth lacks a compelling governmental interest in restricting mass gatherings to prevent the spread of COVID-19.

As to whether the Commonwealth has employed “the least restrictive means to further that interest,” Plaintiffs merely point to orders issued in other states that declared religious gatherings exempt from mass-gathering prohibitions. They offer no evidence that such exemptions are equally effective in preventing the spread of the disease. Given that COVID-19 is widely understood to be transmitted through person-to-person contact, including persons with and without symptoms of illness, Beshear will likely be able to demonstrate that restricting large in-person gatherings is the least restrictive means of accomplishing the Commonwealth’s objective.

Now, from the Kentucky AG’s friend-of-the-court brief for the Commonwealth in Maryville Baptist Church, Inc. v. Beshear, filed today, supporting plaintiffs’ motion for an injunction pending appeal:

On March 19, Governor Beshear banned Kentuckians from participating in all faith-based gatherings of any kind. Six days later, he ordered the closure of any business or organization that he does not consider “life-sustaining”—a vaguely defined term that includes newspapers, law firms, liquor stores, and hardware stores, but not churches, synagogues, or mosques. These restrictions apply no matter how large the gathering might be, no matter where the people might get together, and regardless of whether they practice safe social-distancing and good hygiene. This is unconstitutional….

The Court made two overarching errors in declining to grant a restraining order. First, the Court mistakenly found that Governor Beshear’s restrictions are neutral toward religion and generally applicable, overlooking well-established precedent to the contrary that requires the Court to “survey meticulously the circumstances”ofthecase.

Second, the Court mistakenly declared, without significant analysis, that the Governor’s orders are likely the “least restrictive means” of addressing the Covid-19 pandemic. And it did so despite the availability of clear, reasonable alternatives to such a sweeping prohibition, which other states currently use. Both errors merit this Court’s reconsideration and entry of an injunction pending appeal.

[I.] Governor Beshear’s executive orders target religious activity for disfavored treatment.

This case is primarily about two executive orders that Governor Beshear issued in response to the current Covid-19 pandemic. Together, these two orders amount to an outright ban on traditional, in-person religious services of any kind.

The first order, issued on March 19, prohibits “[a]ll mass gatherings.”  Unlike other states adopting similar measures, “mass gathering” is not defined. Rather, Governor Beshear vaguely describes the scope of his order as “includ[ing] any event or convening that brings together groups of individuals, including, but not limited to, community, civic, public, leisure, faith-based, or sporting events; parades; concerts; festivals; conventions; fundraisers; and similar activities.” The broad sweep of this prohibition is undeniable: It applies to gatherings of any number of people. It applies to gatherings in confined spaces as well as the outdoors. It applies to gatherings in which people remain 6 feet apart, and it applies to gatherings in which people drive up and never leave their cars. This order is written as broadly as possible, and it leaves no doubt that all “faith-based” gatherings are illegal.

That’s not to say, however, that the order is without exception. It in fact contains two. First, the order states that “a mass gathering does not include normal operations at airports, bus and train stations, medical facilities, libraries, shopping malls and centers, or other spaces where persons may be in transit.” Second, the order provides that a mass gathering “does not include typical office environments, factories, or retail or grocery stores where large numbers of people are present, but maintain appropriate social distancing.” Religious activities are not included in either exemption.

Six days after prohibiting the vaguely-defined-but-broadly-applicable “mass gatherings,” Governor Beshear issued an executive order closing all organizations that are not “life-sustaining.” “Life-sustaining” is defined in the order as any organization “that allow[s] Kentuckians to remain Healthy at Home.” It includes approximately 19 different categories of businesses and organizations. Religious organizations are not among them.

What does Governor Beshear consider life-sustaining? “Media,” is one example, which he defines as, “Newspapers, television, radio, and other media services.” Also included on the list are law firms, accounting services, real estate companies, liquor stores, and hardware stores.

The lone reference to religious organizations in the March 25 order allows for religious charities to continue operating to the extent that they “provid[e] food, shelter, and social services, and other necessities of life for economically disadvantaged or special populations, individuals who need assistance as a result of this emergency, and people with disabilities.” So while the order does not permit religious organizations to provide religious services to their parishioners and members, it does allow them to provide the kinds of services that the Governor has pre-approved.

Together, the March 19 and March 25 orders impose a sweeping prohibition against religious activity throughout every corner of the Commonwealth. Even though these same orders broadly permit individuals to crowd into hardware stores and law offices, or newsrooms, liquor stores and grocery stores, they do not permit people to attend religious services at a church, mosque, synagogue, or other house of worship, even if they follow social-distancing guidelines. This is, without question, an unconstitutional targeting of religious activity.

The Court mistakenly found that the executive orders do not target religious conduct because “[r]eligious expression is not singled out.”  It went on to state that “there are no identified exceptions to the prohibition on mass gatherings.” This is, respectfully, not accurate. As explained above, the mass-gathering ban permits gatherings in airports, grocery stories, office spaces, and other places “where large numbers of people are present.”

Only wordplay allows one to reach a different conclusion. The Court explained that to “gather” ordinarily means “to come together in a body,” and that a “gathering” is an “assembly” or “meeting.” So, the Court reasoned, “uncoordinated shopping trips by unrelated individuals” at a grocery store or liquor mart do not qualify.

That conclusion, however, overlooks a significant carve-out from the March 19 order. The order permits people to continue their daily routine in “typical office environments,” which surely includes “meetings” as the Court explains it. In a “typical office,” employees show up together, working for a common purpose during similar hours and often in close proximity. It is exactly the kind of coordinated activity that the Court says is a prohibited mass gathering. Yet the March 19 expressly exempts “typical office environments” from its coverage, while simultaneously singling out “faith-based” activities for no such exemption.

“If the law appears to be neutral and generally applicable on its face, but in practice is riddled with exemptions … the law satisfies the First Amendment only if it advances interests of the highest order and is narrowly tailored in pursuit of those interests.” Said another way, even orders that appear facially neutral are not treated as such when they are filled with exemptions for secular activities. Governor Beshear’s orders single out faith-based activities for prohibition, while simultaneously allowing similarly risky secular activities to continue. This is quintessential discrimination against religion requiring the state to meet the high burden of strict scrutiny.

Just as troubling is Governor Beshear’s refusal to define religious activity as “life-sustaining” for those Kentuckians with sincerely held beliefs about communal worship. Not every state has taken the same discriminatory path. Ohio, a state that has also implemented aggressive social-distancing protocols and shelter-in-place orders, recognized the danger in categorizing some activities as essential but excluding religion from that list …. Governor Beshear issued a similar order three days later, when he set out the 19 differentcategoriesof”life-sustaining”businessesthatcanremainopen.Whilemuch of the wording is the same, Governor Beshear excluded religious organizations from the list of permissibleactivity ….

The exclusion of religious organizations from the list of “life-sustaining” activities is no small matter. Governor Beshear has publicly declared that attending worship service is not life-sustaining, while allowing liquor stores and retailers to continue operating. It is mind-boggling discrimination. Or as the court noted in a similar case, “if beer is ‘essential,’ so is Easter.” On Fire Christian Ctr., 2020 WL 1820249, at *7. The fact that Governor Beshear has identified 19 categories of activities that are, in his judgment, more essential than in-person church services is proof positive of impermissible targeting of religious exercise.

{Nor does it lessen the discriminatory sting that Governor Beshear has recommended Kentuckians attend virtual services as an alternative. With respect, the point of the First Amendment is that Governor Beshear does not get to decide whether a virtual gathering is sufficient for every person of every faith. On this issue, Governor Beshear has gone remarkably far in dictating how Kentuckians should exercise their religion. At his Good Friday daily press conference, the Governor chastised people about what a true “test of faith” is. He proclaimed: “It is not a test of faith in whether you’re going to an in-person service, it’s a test of faith that you’re willing to sacrifice to protect your fellow man, your fellow woman, your fellow Kentuckian, and your fellow American.” Yet the First Amendment exists precisely to protect the beliefs of those who disagree.}

The thrust of the March 19 and March 25 orders are clear: Despite the First Amendment and Kentucky’s own uniquely strong protections for religious liberty, Governor Beshear has failed to adopt neutral or generally applicable laws to address the current crisis, instead choosing to target religious organizations for disfavored treatment. It is, “‘beyond all reason,’ unconstitutional.” On Fire Christian Ctr., 2020 WL 1820249, at *2 (quoting Jacobson v. Massachusetts, 197 U.S. 11, 31 (1905)).

[II.] The ban on religious worship is not narrowly tailored….

The First Amendment prohibits the government from burdening one’s “free exercise” of religion…. In practice, that means the government cannot implement laws “targeting religious beliefs as such.” But it also means that “[o]fficial action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality.” Public officials, in other words, cannot target religion through selective enforcement of otherwise neutral laws. Rather, laws must be neutral and generally applicable in both text and reality to survive constitutional scrutiny. And “[a] law that targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases.”

No one doubts that the government has a compelling interest in preventing the spread of Covid-19 during the current pandemic. But so far, Governor Beshear has offered no explanation as to why it is necessary to prohibit religious activities that pose exactly the same risk as similar, non-religious activities. And in denying the Plaintiffs a temporary restraining order, this Court never even addressed the issue. Instead, the Court reasoned in a conclusory fashion that the Governor was likely to prevail in his assessment that the broad, ill-defined prohibitions against all religious gatherings are the least-restrictive means of prohibiting the spread of Covid-19.  That is, at best, highly implausible.

The error here is most pronounced in the Court’s assessment of what it means to “gather.” As the Court explains it, a “gathering” is distinct from an “uncoordinated shopping trip[] by unrelated individuals.” But presumably, the coronavirus does not care about whether people are “coordinating” or not. And it does not care whether they are in a store as friends, neighbors, or individuals. Rather, as the Court explained, Covid-19 “is widely understood to be transmitted through person-to-person contact,” regardless of whether those people came into contact in a “meeting” or in a grocery aisle. So the obvious, least-restrictive means of preventing the spread of Covid-19 is not to target the purpose for which people come into close contact, as Governor Beshear’s March 19 order does, but to target the close contact itself. By simply implementing the same social-distancing measures for religious gatherings as for liquor stores, retail chains, and offices, the Governor could achieve the same state interest in a less-restrictive manner.

In fact, the Court’s decision implicitly reveals just how imprecise and overbroad the March 19 order is. The Court held that “Beshear will likely be able to demonstrate that restricting large in-person gatherings is the least restrictive means of accomplishing the Commonwealth’s objective.” But the word “large” is nowhere to be found in the March 19 order’s definition of “mass gathering.” The term is used in defining one of the exemptions—”office environments … where large numbers of people are present.”

So in finding that Governor Beshear’s order is the least-restrictive means, the Court actually showed that there are additional ways in which Governor Beshear could restrict his order further. Presumably, for example, the order could permit small gatherings, or gatherings based upon the size of the space in which people meet. Could a congregation of ten individuals, for example, meet for worship in a large auditorium? Surely this would pose no more serious risk of transmitting the virus than an office where “large numbers of people are present.” But under the March 19 order, it is impermissible.

Moreover, there is ample evidence to suggest that broadly banning church services is not the least restrictive way of preventing further danger from Covid-19. Tennessee, for example, has not closed its places of worship. Yet Kentucky’s hospitalization rate for Covid-19 is more than twice that of Tennessee’s, and Tennessee has had 40 percent fewer deaths per capita. And to this date, Governor Beshear has failed to offer any evidence of any kind that closing religious services is more effective than mandatory strict social distancing.

And on the point of geography, Governor Beshear’s orders face other problems as well. Governor Beshear has insisted on maintaining a statewide lockdown that does not take into account varying infection rates in different places. Currently, there are 8 counties in Kentucky that have zero reported cases and another 56 counties that have between one and ten. While residents of Jefferson County are free to continue shopping at big box retailers and grocery stores, where they might run into countless strangers as they turn the corner of an aisle, residents in Harlan where there are no reported cases are forbidden from attending church on Sunday. It defies logic to label this as the least-restrictive means of stopping the spread of Covid-19.

Nor can Governor Beshear find support in Jacobson v. Massachusetts. Even under Jacobson, a law is invalid if “purporting to have been enacted to protect the public health, the public morals, or the public safety, [the law] has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” That is precisely the problem with Governor Beshear’s executive orders here. Singling out religious activity for disfavored treatment is the kind of “palpable invasion of rights” that even a pandemic cannot justify. On Fire Christian Ctr., 2020 WL 1820249, at *8 n.73.

[III.] Constitutional requirements aside, the Kentucky Religious Freedom Restoration Act requires enjoining the Governor’s orders.

Kentucky law could not be more clear: “Government shall not substantially burden a person’s freedom of religion.” “Burden” is defined to include “indirect burdens such as withholding benefits, assessing penalties, or an exclusion from programs or access to facilities.” There is no question that the worshippers of Maryville Baptist Church have been assessed a penalty due to their exercise of sincerely held religious beliefs—they were, after all, ordered to quarantine. There is also no question that the Governor’s orders burden “access” to the facilities of Maryville Baptist Church—the Governor has, after all, ordered that no one attend service at the church.

The question, then, is whether the Governor is likely to prove “by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest.” Rev. Stat. 446.350. He has not, and he cannot meet his evidentiary burden in light of his orders—particularly his decision to permit the continued operation of “typical office environments, factories, or retail or grocery stores where large numbers of people are present, but maintain social distancing.”

Simply put, permitting worshippers to attend a service where everyone typically remains in the same spot throughout (all the while social distancing) will logically place fewer Kentuckians within six feet of one another than shopping at a grocery store, hardware store, or other retail business where they will continuously pass one another, stand in line together, or bump into one another as they turn a corner. And that is not to mention that in such retail establishments shoppers will pick up and put back goods, push the same shopping carts, and touch the same credit card machines….

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After weeks of downplaying the threat posed by COVID-19 as it spread across the world and into the United States, President Donald Trump was finally taking it seriously on March 18.

“I view it as, in a sense, as a wartime president,” he told reporters in the White House’s briefing room that day. “I mean, that’s what we’re fighting,” he said, before invoking a now-oft-repeated metaphor about the virus as “an invisible enemy.”

Framing the pandemic as a war serves mostly as a way for the president—and the government more generally—to sweep aside skepticism and dodge difficult questions about handling the crisis. Should we think twice before imposing export restrictions that will weaken global resilience to the virus? No time, this is a war! Should the government be able to order workers to stay home, then order them back to work against their will? Generally no, but this is war! Can we protect privacy while building a massive surveillance apparatus to track the spread of the disease? That might be nice, but this is war!

Some of that might make sense during an actual war—you don’t want your domestic manufacturers selling goods to your enemies, for one—but it misses the point in our current crisis. There is no us-versus-them happening here. A virus cannot be cowed. It doesn’t want our land or to change our regime, and it cannot be forced to surrender by throwing bodies at it.

As Daniel Larrison noted in an excellent piece for The American Conservative earlier this month, “declaring war on abstractions and inanimate objects has become a bad habit” for the American government.

Indeed, America has spent 20 years fighting an amorphous “war on terror” that’s outlived all of our initial enemies, consumed trillions of taxpayer dollars, and actually created new enemies by destabilizing the Middle East and North Africa. The federal government’s “wars” on poverty and drugs have been equally unsuccessful and now serve mostly as federal jobs programs for bureaucrats and cops.

Less than three months after the first American died of COVID-19, and six weeks after Trump declared himself a wartime president, the disease has now claimed more than 58,318 American lives—the number that perished in the Vietnam War. Passing that symbolic threshold provides a useful way to comprehend the severity of the disease, but it doesn’t make the war analogy useful.

Writing at The Bulwark, Jonathan Last notes that both the Vietnam War and the COVID-19 pandemic were made worse by incompetent government officials who lied to the American people. That’s a worthwhile observation. Both crises undermined Americans’ trust in institutions and presidents, and both overlapped and amplified existing cultural faultlines.

But the metaphor’s usefulness ends there. For starters, Vietnam killed mostly young Americans, while COVID-19 is mostly killing the old—a distinction that might seem callous, but one that nevertheless changes how the crisis effects the national psyche. In many other senses, the war metaphor actually primes Americans to expect more bad government. Unlike an actual war, we shouldn’t be calling for the government to do whatever it takes to keep us safe. Not only can it not actually do that, but its record of trying to is also rather bad.

“Comparing the pandemic to war is also somewhat demoralizing when we reflect on our government’s record of waging war over the last half-century. There are scarcely any true successes in that record that we can point to that would give us confidence that the government can ‘win’ now,” Larrison writes. “Unfortunately, the only things that the government’s response has in common with previous war efforts is that the U.S. was badly unprepared for what came next and the president had an unrealistic expectation of how quickly the problem would be taken care of.”

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The antiviral drug remdesivir will be given an emergency use authorization as a treatment for COVID-19 by the Food and Drug Administration (FDA) shortly, reports The New York Times. Gilead Science, the maker of the compound, noted in a press release earlier today that it was “aware of positive data emerging from the National Institute of Allergy and Infectious Diseases’ (NIAID) study of the investigational antiviral remdesivir for the treatment of COVID-19. We understand that the trial has met its primary endpoint and that NIAID will provide detailed information at an upcoming briefing.”

Apparently, that briefing may occur at the White House later today with President Trump and Dr. Anthony S. Fauci, the head of the NIAID.

In addition, Gilead Sciences reported that an open-label observational trial found that five days of treatment with the intravenous drug for COVID-19 was essentially as effective as 10 days.

Scott Gottlieb, the former commissioner of the FDA, told the biomedical news site STAT that “remdesivir isn’t a home run but looks active and can be part of a toolbox of drugs and diagnostics that substantially lower our risk heading into the fall.”

An earlier Chinese study reported that remdesivir was no more effective than placebo in treating severe cases of COVID-19. However, that study did note that patients treated earlier in the course of the disease did seem to fare somewhat better.

Using the drug to treat patients earlier in the course of their disease may result in better outcomes. “We know that with most antiviral medications the earlier you give it the better it is,” said Boston Medical Center researcher Nahid Bhadelia to STAT. She suggested that means that treatment with the drug will likely be most effective in patients who have been infected more recently. “What will be important is that we find people on the outpatient side,” Bhadelia said. “Again, testing becomes important, we want to have them come to the hospital as soon as possible.”

A hopeful result, if still not an anti-COVID-19 silver bullet.

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The National Labor Relations Board (NLRB) has ordered Ben Domenech—publisher of the conservative website The Federalist, and a friend of mine—to take down a June 2019 tweet in which he joked about sending employees who wanted to unionize to work in “the salt mines.” Domenech has refused, and the case is now making its way through the courts.

Domenech’s tweet came in response to news that employees of Vox Media Inc. walked off the job in support of unionization. No one at The Federalist had publicly expressed any interest in unionizing, and two of the website’s six employees filed affidavits attesting that they viewed the tweet as a joke. As far as I know, Domenech doesn’t own any salt mines.

Kenneth Chu, an NLRB administrative law judge, nevertheless ruled that Domenech violated the 1935 Wagner Act, which prohibits employers from interfering with employees’ unionization efforts. Domenech explains what happened in an article for The Wall Street Journal:

The NLRB proceeded to invade our publication, heedless of the freedom of the press. Members of my staff were subpoenaed to testify in New York, where none of them lived and we had no office. The NLRB attempted to subpoena all emails and communications between staff members going back years—including about editorial decisions, hiring decisions, and confidential sources during our coverage of the Russia-collusion hoax.

Help arrived in the form of the New Civil Liberties Alliance, a nonprofit set up by legal scholar Philip Hamburger that defends constitutional rights against overreach by the administrative state.

The NLRB proposed a settlement: I delete the joke, I post information on the rights of employees to unionize, and the complaint goes away. I said no.

That meant the NLRB’s case against me would be adjudicated by an NLRB employee, Administrative Law Judge Kenneth Chu. As expected, we lost. The board called no witnesses. It submitted my tweet and printouts of Federalist articles and asserted we were not a publication but an “anti-union website.”

The government lawyer claimed that “the editorial positions of the website are reasonably . . . understood as Mr. Domenech’s own,” even though we publish thousands of conflicting opinions under various bylines. Federalist employees filed affidavits stating they viewed my tweet as a joke. Mr. Chu dismissed their opinions as subjective and irrelevant.

The NLRB does not claim that anyone at The Federalist complained about Domenech’s tweet. This entire action is the result of complaints filed with the NLRB by the leftist writer (and former NLRB attorney) Matt Bruenig and an attorney named Joel Fleming, both of whom acted based solely on the tweet. It’s concerning that two individuals who have nothing to do with a company can assert on behalf of its employees that their employer has violated their rights, but this is the reality permitted under the Wagner Act’s ambiguous, open-ended language.

Domenech is fighting the government’s decision. “Eventually we’ll get to a real court, where we’ll be able to assert our rights and prove our case,” he writes.

Bruenig, the original complainant, argues that Chu’s ruling is in keeping with decades of legal precedent:

“I was just joking” is not an uncommon thing people say in response to unfair labor practice charges based on coercive statements. This is not usually tolerated as a defense because, as the Eight Circuit (326 F.2d 910) wrote quite elegantly in 1964, “executives who threaten in jest run the risk that those subject to their power might take them in earnest and conclude the remarks to be coercive.”

Even as far back at 1977, NLRB joke cases (231 NLRB No. 40) were repeating boilerplate like “it is well established that the coercive and unlawful effect of a statement is not blunted merely because interrogations of, warnings to, or disparaging statements about union adherents are accompanied by laughter or made in an offhand humorous way.” In that case, the manager had asked some workers why they were wearing union buttons, and when they replied “because everyone else is,” the manager said “I’ll be damned if y’all can’t fuck up a wet dream,” which caused the workers to laugh. Following precedent, the NLRB ruled that the manager’s statement violated the [Wagner Act].

That there’s a long history of judges punishing employers for dumb jokes makes the matter more concerning, not less. In any case, Chu’s ruling contains a number of questionable statements: He held that the tweet “had no other purpose except to threaten the FDRLST employees with unspecified reprisal.” This is nonsense: Domenech is the only person who knows why he sent the tweet and what effect he intended it to have, and he has said he sent it as a joke. Chu’s assessment that the tweet would make a “reasonable” Federalist employee feel coerced is at odds with the fact that none of them say they felt coerced. Chu is insisting that he knows more about Domenech’s internal thought processes than Domenech does, and more about The Federalist‘s virtual office climate than the people who work there.

The free speech implications of the government’s position are obvious. The Wagner Act was intended to prevent employers from hampering unionization efforts. But if mere satirical condemnations of unionization are impermissible, then the First Amendment rights of employers and managers don’t seem to exist. That Chu’s ruling reflects a long history of legal precedent doesn’t make those earlier rulings worth protecting.

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Earlier today, the US Court of Appeals for the Ninth Circuit refused to grant en banc reconsideration of a three judge panel decision in Cedar Point Nursery v. Shiroma,  an important takings case where the panel had ruled there was no taking of private property requiring “just compensation” under the Fifth Amendment in a situation where the government had mandated that agricultural employers grant union organizers regular access to their property. The panel ruled that there was no taking largely because state regulations did not require owners to give union organizers the right to “unpredictably traverse their property 24 hours a day, 365 days a year.” Instead, they are only allowed to access the property at specified times, amounting to “360 hours a year out of a total 8,760 hours (and only 120 of those hours would be during the workday).” Thus, there is no “permanent physical occupation” of property, of the sort required by Supreme Court precedent for this to be considered a “per se” (automatic) taking, as opposed to one subject to the complex Penn Central balancing test, that usually comes out in favor of the government.

Today, a majority of the full Ninth Circuit ruled that the case would not be reconsidered en banc, by a much larger panel. However, eight judges joined a dissenting opinion authored by Judge Sandra Ikuta. Here is a summary of their position:

Once again, the Ninth Circuit endorses the taking of property without just compensation. See Horne v. U.S. Dep’t of Agric., 750 F.3d 1128 (9th Cir. 2014), rev’d sub nom. Horne v. Dep’t of Agric., 135 S. Ct. 2419 (2015). California property law and Supreme Court precedent make clear that an easement is private property protected by the Takings Clause. See, e.g., L.A. Terminal Land Co. v. Muir, 136 Cal. 36, 48 (1902); Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 831 (1987). In opposition to this precedent, the majority concludes there is no taking because the state’s appropriation of an easement is not a “permanent physical occupation.” Cedar Point Nursery v. Shiroma, 923 F.3d 524, 531–34 (9th Cir. 2019). This decision not only contradicts Supreme Court precedent but also causes a circuit split. See Hendler v. United States, 952 F.2d 136, 1377–78 (Fed. Cir. 1991). We should have taken this case en banc so that the Supreme Court will not have to correct us again….

To the extent there was any doubt as to whether the appropriation of an easement constitutes a taking, it was dispelled by Nollan [v. California Coastal Commission].There, the Court stated that if California were to require landowners to “make an easement across their beachfront available to the public,” there is “no doubt there would . . . be[] a taking.” Nollan, 483 U.S. at 831. According to the Court, “[t]o say that the appropriation of a public easement across a landowner’s premises does not constitute the taking of a property interest but rather . . . ‘a mere restriction on its use,’ is to use words in a manner that deprives them of all their ordinary meaning.” Id. (citation omitted).

The Federal Circuit’s decision in Hendler v. United States, 952 F.2d 1364 (Fed. Cir. 1991), is in accord with these precedents. There, the Federal Circuit held that the federal government had acquired an uncompensated easement when “Government vehicles and equipment entered upon plaintiffs’ land from time to time, without permission, for purposes of installing and servicing . . . various [groundwater] wells.” Id. at 1377. Entry onto private property, “even though temporally intermittent,” effected a taking because “the concept of permanent physical occupation does not require that in every instance the occupation be exclusive, or continuous and uninterrupted.” Id.

The issue here comes down to whether a “permanent physical occupation” occurs only when it is literally continuous, or when the right to occupy continues indefinitely, but does not apply to all hours of the day, all the time. The Supreme Court precedent on this subject—like on a number of other takings issues—is far from a model of clarity, and this is one of the questions on which it is ambiguous. That said, I largely agree with the dissenting Ninth Circuit judges, and with the 1991 Federal Circuit decision they cite above. A permanent right to an easement to enter or occupy an owner’s land is a severe infringement on property rights even if applies only to certain hours of the day, and even if the intrusion is not continuous. Moreover, the right to exclude unwanted entrants is a central element of property rights in the Anglo-American legal tradition. So it is hard to argue that a major restriction on it is not a taking of property rights.

It’s also worth noting that this case has implications that go far beyond the union organizing context. If the Ninth Circuit majority’s position prevails, it could allow the government to impose a wide range of access requirements on owners without paying compensation.

As the dissenting judges point out, this Ninth Circuit ruling has a created a split with the Federal Circuit. This—combined with the intrinsic importance of the issue—makes it more likely that the Supreme Court will take the case, though of course it is far from certain they will do so.

 

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Rep. Justin Amash of Michigan has announced his campaign for the Libertarian Party’s presidential nomination, which will be decided at the L.P.’s convention in May. Originally elected as a Republican in 2010, Amash left the GOP last July and became an independent. By dint of his new party affiliation, he has also become the first Libertarian member of Congress.

On today’s podcast, Nick Gillespie talks with his Reason colleagues Matt Welch, who interviewed Amash just hours after his announcement, and Brian Doherty, who talked with his L.P. rivals shortly after the news of Amash’s campaign became public. They discuss Amash’s platform, his likely reception among L.P. activists, and what sort of impact the congressman’s presence is likely to have on the 2020 presidential race. They also each suggest a possible campaign song for the 40-year-old Grand Rapids native.

Audio production by Ian Keyser.

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Eight of the top 10 hotspots for the COVID-19 cases in the U.S. are connected to jails and prisons, according to data from The New York Times.

The largest COVID-19 cluster in the country is at Marion Correctional Institution in Marion, Ohio, where there are 2,197 infected inmates—more than 80 percent of the prison’s population.

“As recently as yesterday, we have inmates in here that can’t even walk and breathe because of the virus,” Austin Cooper, an inmate at the prison, told local news outlet ABC News 5. “Medical just keeps sending them back out here to the camp, talking about they can’t do nothing for them.”

Other clusters include Lakeland Correctional Facility in Michigan, where more than 600 inmates have tested positive; the Cook County Jail in Illinois, which is nearing 1,000 positive cases; and Pickaway Correctional Institution in Ohio—the second-largest COVID-19 cluster in the country with 1,629 cases.

The only two hotspots on the top 10 list that aren’t prisons or jails are a pork processing plant in South Dakota and the U.S.S. Theodore Roosevelt aircraft carrier.

The numbers and dire news stories underscore what civil liberties groups and correctional officer unions have been trying to warn local, state, and federal agencies about since COVID-19 reached the country: that jails and prisons were woefully unprepared to handle an epidemic, and that those institutions would inevitably spread the virus into nearby communities unless drastic measures were taken.

WBUR reported Tuesday that COVID-19 has infected nearly 15,000 inmates and corrections staff across the country and killed more than 130.

More worryingly, the infection numbers above are likely undercounts because of the lack of widespread testing in federal, state, and local lockups.

Last week, the American Civil Liberties Union (ACLU) released new epidemiological models estimating that, unless jail populations are dramatically reduced, COVID-19 could kill 100,000 more people than current projections, even with social distancing protocols.

“We are likely facing massive loss of life—both in jails and in communities around the country—if dramatic steps aren’t taken to reduce the incarcerated population in this country,” Udi Ofer, director of the ACLU’s Justice Division, said in a press release. “Mass incarceration was a major public health crisis before the outbreak of COVID-19, but this pandemic has pushed it past the breaking point. The revolving doors of jails make them a tinderbox for COVID-19 spread within our communities. This data is a wakeup call as to the true cost of 50 years of mass incarceration and its impact on communities across the nation, disproportionately communities of color.”

Many district attorney’s offices, jails, and prisons took unprecedented steps to halt the flow of more people into the criminal justice system and get some at-risk inmates out of harm’s way, but it still hasn’t been enough to stop the virus from tearing through many facilities.

In the Federal Bureau of Prisons (BOP), 1,314 inmates and 335 staff have tested positive for the virus. Federal Medical Center Fort Worth, a federal prison in Texas, announced on Monday that 234 inmates had tested positive, following expanded testing.

“We live shoulder to shoulder,” Coty Franks, an FMC Fort Worth inmate, told NBC DFW. “Literally the only time I’m not standing or sitting next to someone is in the shower.”

As Reason reported, the BOP announced the first female federal inmate died Tuesday. She was 30 years old and delivered a child via an emergency cesarean section while ventilated.

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