Tag: hit&run

Anti-Trump D.C. lawyer George Conway, who somehow has managed to remain married to senior White House adviser Kellyanne Conway, offers a characteristically harsh take on the president in a recent Washington Post op-ed piece. His assessment of Donald Trump as a narcissistic, erratic, impulsive, mendacious, petty bully with modest intellectual abilities is familiar and, I think, essentially accurate. But in the midst of describing the conspicuous evidence of these character traits, Conway tries to bolster his portrayal by citing “tens of thousands of mental-health professionals” who have “test[ed] the bounds of professional ethics” by “warn[ing] for years about Trump’s unfitness for office.”

Far from clinching Conway’s evaluation, that citation makes it less credible. If Trump’s “unfitness for office” is as glaringly obvious as Conway argues, why would we need “mental-health professionals” to verify that conclusion? And what do those experts add to our understanding of Trump’s manifold shortcomings, which were clear long before he was elected and have been on public display every day of his presidency? Absolutely nothing. By dressing up a political judgment as a quasi-medical diagnosis, Conway, who describes Trump as “deranged” and “nuts,” clouds the issue while alienating anyone who is appropriately skeptical of psychiatry’s audacious claim to dominion over all human foibles and failings.

The most commonly suggested psychiatric label for Trump is “narcissistic personality disorder,” which is diagnosed based on five or more of these eight criteria:

1) a grandiose sense of self-importance

2) a preoccupation with fantasies of unlimited success, power, brilliance, beauty, or ideal love

3) a belief that one is special or unique and can be understood only by, or should associate with, other special or high-status people

4) demands for excessive admiration

5) a sense of entitlement

6) taking advantage of others for one’s own advancement

7) lack of empathy

8) envy

The “mental-health professionals” who impress Conway so much are not wrong in thinking that Trump seems to display these traits. But in taking the further step of saying he therefore suffers from a “mental disorder” that renders him unfit for the presidency, they are not only violating the American Psychiatric Association’s stricture against diagnosing people from afar; they are lending a pseudoscientific veneer to a judgment that mere laymen are perfectly capable of rendering on their own.

The qualities that offend Conway were readily apparent to anyone who paid attention to the 2016 presidential campaign, or for that matter to Trump’s decades as a public figure prior to that. Almost half of voters nevertheless were willing to give him a try. Conway argues that Trump’s performance in office, and especially his response to the COVID-19 pandemic, shows they were dangerously mistaken. That is a plausible political argument, but appeals to psychiatric authority do not make it any stronger.

Even voters who are persuaded by Conway’s case against Trump can hardly be enthusiastic about the leading alternative. Joe Biden’s nomination, like Trump’s, demonstrates nothing so much as the pathetic inadequacy of his rivals and the party from which they emerged. The former vice president’s main qualification, aside from a long résumé featuring myriad terrible policy judgments, is that he is not Donald Trump. And while Trump’s opponents lean heavily on a psychiatric construct that tells us nothing about him we did not already know, Biden, long notorious for gaffes and weird speech patterns, lately has been showing signs of an age-related cognitive decline that could make the 77-year-old candidate, who would be the oldest president Americans have ever elected, mentally unfit for office.

Based on what I know about both of these men, I am not comfortable trusting either of them to preside over the federal government. Justin Amash, the Michigan congressman seeking the Libertarian presidential nomination, is vastly preferable by pretty much every measure. And while a President Amash might be no more than a pleasant fantasy, that is all we are left with in a political system that persistently produces choices that are not just uninspiring but alarming.

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The coronavirus pandemic has led lots of people—myself included—to loudly insist our pet policy proposals are the right way to react to the virus. This week the bingo ball hopper has, inexplicably, landed on “expand national service programs.”

Sen. Chris Coons (D–Del.) and a bipartisan group of 35 lawmakers introduced a bill in late April to double the size of AmeriCorps from 75,000 people to 150,000 in a year—and then double that to 300,000 for years two and three. He also wants to increase the participants’ “living allowance” to 175 percent of the federal poverty line, dramatically increasing the amount they’d get paid. (The poverty line currently rests at $12,760.)

Coons argues that AmeriCorps can help with the coronavirus response by using its workers for contact tracing. Andrea Mitchell interviewed him about his plan on MSNBC yesterday:

Here’s a partial transcript of Coons’ justification:

If you wait and think about it for a second, Andrea, contact tracing is a hard thing to do. You’re calling someone to tell them they’ve been infected and ask them to share with you confidential information about where they live, where they work, where they’ve traveled, where they’ve shopped and then information about how to contact the people they’ve been around. This requires skill and it requires someone who is really connected to those communities that have been most heavily impacted by the pandemic, so that’s often communities of color and communities where bilingual skills will be necessary.

New York Times columnist David Brooks doesn’t think Coons’ program goes far enough. In an op-ed titled “We Need National Service. Now,” Brooks argues that AmeriCorps should expand into smaller organizations in rural parts of the country:

We Americans suck at regimentation and blindly following orders from the top down. But we’re pretty good at local initiative, youthful dynamism and decentralized civic action. We need a Covid response that fits the kind of people we are. National service is an essential piece of that response.

My immediate response to this paragraph, sentence by sentence, was “Yes. Yes. Yes. Wait, what?” How does a need for customized local response justify the expansion of a federal make-work program?

More importantly: How do you feel about the level of “national service” the federal government has given us in its dealings with the coronavirus thus far? (If you’re not sure, read Reason‘s documentation of the disastrous federal response here.)

Yes, it’s true that we need contact tracing and that it should have happened quickly (with appropriate privacy protections). The operative word here is “quickly.” It’s May. The federal government has already dropped the ball on contact tracing, and it’s already too late for “quickly” implementing anything by the feds. Nor does that training and deploying tens of thousands of people with no experience in this area sound very quick—especially in contrast with the work tech companies have been doing to safely (and anonymously) trace infection spread.

But Brooks and Coons always think it’s time to expand these national service programs; COVID-19 is just their latest excuse. Unsurprisingly, former presidential candidate Pete Buttigieg, who called for national service in the Democratic primaries, is promoting Coons’ bill.

By all means, direct federal money back to communities so they can manage the right responses to COVID-19 based on local needs. But nothing about this pandemic should give us high hopes for national management of such a program. The feds have done a terrible job of providing us with “national service.” We absolutely should not be “unifying” behind them now.

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Many Americans are losing patience with statewide shelter-in-place orders.

“We don’t have months or weeks—businesses are hurting,” says Jim Desmond, a San Diego county supervisor who unsuccessfully attempted to introduce legislation hastening the re-opening of businesses in his county despite the statewide lockdown in California.

“[Those] hurt the most in this are the poor people, the people that rent, that worked in the hospitality sector and the restaurants, and a lot of single moms….We have people on the phone crying saying, ‘Hey, I got a kid to feed,'” Desmond tells Reason.

So have the lockdowns actually saved lives? There’s a debate over how to analyze the data.

“Lockdowns just don’t actually alter behavior all that much,” says Lyman Stone, an economist and demographer who’s an adjunct fellow at the American Enterprise Institute and a research fellow at the Institute for Family Studies. He argues that there’s no correlation between the timing of statewide or regional shelter-in-place orders and a decline in the COVID-19 death rate.

“We can basically build a theory and assert that the world obeys our theory and just go looking for any scrap of evidence that supports it,” says Stone, “or we can start by looking at what are the trends we actually observe.” 

Stone looked at the date governments issued shelter-in-place orders compared to the total daily deaths 20 days later, the minimum amount of time medical experts believe it would take for initial exposure to the virus to lead to death.

In every case, he found the decline came long before the 20-day threshold. Stone says voluntary social distancing is effective: Cell phone tracking data indicate that people were socially distancing before the shelter-in-place orders, and the orders had a negligible effect on the extent of that distancing.

“People were already socially distancing before the lockdown. Social distancing works,” says Stone.  

University of Colorado Denver economist Andrew I. Friedson disagrees. He co-authored a working paper for the National Bureau of Economic Research that says California’s lockdown, the first in the nation, may have prevented more than 1,600 COVID deaths.

“California is a location where this could have gotten really bad, really quickly,” he says. 

Friedson’s model created a “synthetic” version of California that never locked down by taking the weighted average of other states that didn’t impose shelter-in-place orders. Stone says the model is less useful than looking at actual outcomes and argues that their findings don’t support the use of shelter-in-place orders.

“They find that their shelter-in-place reduced deaths beginning four days after it was implemented, which means that you must assume that…a considerable share of COVID-19 cases die four days after infection,” says Stone. “The problem is that’s not even long enough for the incubation time.” 

Friedson concedes that social distancing behavior increased before the lockdowns, but he argues that the lockdowns increased the magnitude of the effects by forcing noncompliant individuals to stay home more.

“What we’re talking about with this lockdown is that we’re putting some extra juice behind this,” says Friedson. 

The NBER paper estimates about one life saved for every 400 jobs lost, though Friedson says that as the total death toll rises over time, it’s possible that job losses per life saved could be even higher.  

“What makes these numbers particularly slippery is that it’s difficult to know how many of the job losses are temporary and come back when the disease is defeated,” says Friedson. “It’s also unclear how many of these lives saved are just deaths that are delayed.” 

Stone says that what likely flattened the curve was voluntary social distancing, prompted by information about the dangers of the virus, in conjunction with the closure of schools and large assemblies.

Instead of shelter-in-place orders, he says the rest of the world should learn from the approach taken by Hong Kong, which never issued a stay-at-home order and has just four documented COVID-19 deaths. He says the city accomplished this by banning all travel from China early on, encouraging universal use of masks, and implementing mandatory, centralized quarantines of sick or exposed individuals.

The majority of US states have now significantly modifed their shelter-in-place orders. Even California, which never came close to seeing its hospitals overrun, began allowing more retailers to re-open for curbside pickup on May 8. But it remains committed to a largely top-down, technocratic approach.

“Unfortunately life comes with some risks,” says Desmond. “To me it looks like the goalposts keep moving back….We shut these business down in a day. Why is it taking us so long to open them back up? We need to start.” 

Produced by Zach Weissmueller. Graphics by Joshua Swain. 

Music Credits: “Comets and Sparks” by Sergey Cheremisinov is licensed under a Creative Commons license; “Hibernation” by Sergey Cheremisinov is licensed under a Creative Commons license; “By the Winds” by Sergey Cheremisinov is licensed under a Creative Commons license.

Image credits: “Woman pushing stroller,” Vanessa Carvalho/ZUMA Press/Newscom; “Kemp signs bill,” Bob Andres/TNS/Newscom; “Kemp in front of sign,” Miguel Juarez/ZUMA Press/Newscom; “Newsom holds sanitizer,” Ren E.C. Byer/ZUMA Press/Newscom; “Newsom enters presser,” Sacramento Bee/ZUMA Press/Newscom; “No longer essential street art,” Jim Ruymen/UPI/Newscom; “Politicians are not essential protest sign,” Max Herman/Sipa USA/Newscom; “Taped off pier,” Stanton Sharpe/ZUMA Press/Newscom; “Taped off playground,” Image of Sport/Newscom; “Taped off bench at sunset,” K.C. Alfred/ZUMA Press/Newscom; “Social distancing food line,” Anthony Behar/Sipa USA/Newscom; “Masked South Carolina man,” Alex Milan Tracy/Sipa USA/Newscom; “Surgery in San Diego,”  U.S. Navy/ZUMA Press/Newscom; “Empty California beach,” Ringo Chiu/ZUMA Press/Newscom; “Masked man at Costco,” GREG LOVETT/TNS/Newscom; “Re-Open California Sign,” David Crane/ZUMA Press/Newscom; “Funeral procession in New Jersey,” Brian Branch Price/ZUMA Press/Newscom; “Newsom in front of medical ship,” Carolyn Cole/TNS/Newscom; “Little girl holding mask,” Allan Kosmajac/Newscom; “Natalie Fedosenko/TASS/Sipa USA/Newscom; “Little girl in quarantine,” Sebastien SALOM-GOMIS/SIPA/Newscom; “Empty Subway,” Ron Adar/M10s/MEGA/Newscom; “Beach bike path closed sign,” Stanton Sharpe/SOPA Images/Sip/Newscom; “Masked hair stylist,” Russell Hons/Cal Sport Media/Newscom; “”Closed restaurant,” Richard B. Levine/Newscom; “Masked waitress,” Russell Hons/Cal Sport Media/Newscom

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Federal appeals courts regularly grant police officers immunity from civil rights lawsuits under a doctrine known as “qualified immunity.” According to a Reuters investigation published today, they grant it in more than half the cases where it is invoked.

Reuters analyzed 252 federal appellate opinions from 2015 to 2019 where law enforcement defendants claimed qualified immunity. The courts ruled in the police’s favor in 57 percent of the cases.

They have done this more often in recent years, establishing what Reuters calls a “growing tendency, influenced by guidance from the Supreme Court, to grant police immunity.” The courts also increasingly avoid ruling on whether the alleged conduct violated the Constitution, “thereby avoiding establishing a precedent for future cases and making it harder to win cases against the police.”

Under the 50-year-old doctrine of qualified immunity, police and other government employees are shielded from lawsuits where the civil right they allegedly infringed hasn’t been “clearly established,” or where a reasonable officer wouldn’t have known about it. 

The investigation comes as the U.S. Supreme Court will decide whether to hear 13 different petitions concerning qualified immunity at a conference later this month. The high number may be a sign that the justices are finally ready reconsider the doctrine.

On its face, qualified immunity is supposed to protect public officials from frivolous lawsuits related to their official job duties, but the confusing precedent has been construed so pedantically by some courts that plaintiffs must find precedents that match the exact circumstances of their case. Qualified immunity effectively short-circuits civil litigation against individual police officers, ensuring that the cases never make it to trial or settlement.

Reason Foundation (the nonprofit that publishes this website), the Cato Institute, and the American Civil Liberties Union (ACLU) have all filed petitions and amicus briefs asking the Supreme Court to review the current standard for qualified immunity.

Reason has written extensively about how qualified immunity protects individual police officers from liability in case of clearly excessive and abusive conduct. Most recently, a U.S. District Court judge in South Dakota granted qualified immunity to several police officers who forced plaintiffs to undergo involuntary catheterizations—despite finding that the forced catheterizations violated the Fourth Amendment—simply because there have been no other cases of cops and nurses holding down suspected drug users and shoving tubes up their urethras.

Last September, the Ninth Circuit Court of Appeals ruled that Fresno police officers accused of stealing more than $225,000 while executing a search warrant were protected by qualified immunity. A month before that, a Ninth Circuit panel granted qualified immunity to an officer who without warning shot a 15-year-old holding an airsoft gun. 

“Under the circumstances, a rational finder of fact could find that [Officer Michael] Gutierrez’s use of deadly force shocked the conscience and was unconstitutional under the Fourteenth Amendment,” the panel wrote. But “because no analogous case existed at the time of the shooting, the district court erred by denying Gutierrez qualified immunity for this claim.”

The Reuters analysis found about three dozen cases where courts found that police violated plaintiffs’ constitutional rights but nonetheless granted them qualified immunity:

Outside of Dallas, Texas, five officers fired 17 shots at a bicyclist who was 100 yards away, killing him, in a case of mistaken identity. In Heber City, Utah, an officer threw to the ground an unarmed man he had pulled over for a cracked windshield, leaving the man with brain damage. In Prince George’s County, Maryland, an officer shot a man in a mental health crisis who was stabbing himself and trying to slit his own throat.

The ACLU’s Supreme Court petition is on behalf of Alexander Baxter, a Nashville man who was bitten by a police dog while he had his hands in the air, surrendering. Baxter sued, alleging excessive force, but the 6th Circuit Court of Appeals ruled in 2018 that it wasn’t clear using a police dog to apprehend him while his hands were raised was unconstitutional.

Sitting members of the federal judiciary have also assailed the doctrine. U.S. Circuit Judge Don Willett wrote in a 2018 decision that “to some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly.”

There are some sympathetic ears on the Supreme Court for overhauling, or at least reconsidering, qualified immunity. Justice Clarence Thomas wrote in 2017 that the doctrine should be revisited, while Justice Sonia Sotomayor has bemoaned its effects on lawsuits over police misconduct.

“Such a one-sided approach to qualified immunity transforms the doctrine into an absolute shield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment,” Sotomayor wrote in a 2018 dissent. “It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”

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“The current pandemic makes it all the more necessary for the federal government to tighten restrictions on immigration.”

That was the resolution of a public debate hosted via Zoom by the Soho Forum on Wednesday, May 6, 2020. It featured Mark Krikorian, executive director of the Center for Immigration Studies, and Bryan Caplan, professor of economics at George Mason University. Soho Forum director Gene Epstein moderated.

The Soho Forum typically hosts Oxford-style debates, in which a live audience votes before and after the event, and the debater who swayed the most people wins the contest. Because this debate took place over Zoom, we did things a little differently. The online audience was asked to vote before the debate. If you voted before the debate, please go to sohovote.com after you watch the video and cast your final vote. But if you didn’t register your initial vote before the debate started on Tuesday evening, your final vote won’t be counted.

Arguing for the affirmative was Mark Krikorian, executive director of the Center for Immigration Studies and author of The New Case Against Immigration.

Bryan Caplan argued for the negative. Caplan is a professor of economics at George Mason University and the author of Open Borders: The Science and Ethics of Immigration.

The Soho Forum, sponsored by the Reason Foundation, is a monthly debate series at the SubCulture Theater in Manhattan’s East Village.

Voting on this debate is open until Tuesday, May 12, 2020 at noon EST.

Produced by John Osterhoudt.

Illustration: 82001983 © Topgeek—Dreamstime.com
Photo: 177972613 © Wisconsinart—Dreamstime.com

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At the supermarket last week, amidst too many empty shelves, the manager looked at me through a plexiglass sneeze barrier and groused, “they need to open things up. I’d rather get the sniffles than face an angry mob.”

COVID-19 is more than the “sniffles”—so far, over a quarter-million people have died globally during the pandemic, according to the Johns Hopkins University Coronavirus Resource Center. But it’s also not the only risk human beings face, even if many policymakers seem consumed with it to the exclusion of all else. There are also the economic repercussions of harsh enforcement of lockdown measures to consider. And we should also include in there the danger to life and liberty inherent in mandated shutdown orders that are enforced by police and jails.

To focus on the virus alone to the exclusion of other threats is to court disaster. Well, not just to court it—disaster is here.

For the week ending May 2, another 3.2 million Americans filed unemployment claims, bringing the total number to over 33 million for the seven weeks since pandemic-related lockdowns began. On a similar note, the European Union predicts its economy will contract by 7.5 percent in 2020 because of the pandemic and related lockdown measures. And “the global economy likely shrank an annualized 12.6 percent in first quarter 2020 relative to fourth quarter 2019 and will weaken a further 8.6 percent in the second quarter,” according to the Federal Reserve Bank of Dallas.

If numbers bore you, we can just go with the International Monetary Fund’s pithy description: “worst economic downturn since the Great Depression” because of the pandemic and related lockdowns. Or there’s the United Nations’ equally catchy forecast of “multiple famines of biblical proportions“—not entirely due to the pandemic, but certainly made much worse by the disruptions it has created.

Enforcing lockdowns inflicts a cost on our freedom, too.

“As countries around the world institute extraordinary measures to fight the pandemic, both dictatorships and democracies are curtailing civil liberties on a massive scale,” Florian Bieber of Austria’s University of Graz observed in Foreign Policy.

That has meant opportunistic muzzling of dissent and arrests of critics, as documented by monitors including Amnesty International and Human Rights Watch. But it has also meant moronic enforcement of stay-at-home orders, such as protecting people from infection by beating them (the predictable go-to for many law-enforcers around the world). Less brutal but just as stupid are arrests for playing with family members in public parks, and jailings for hanging out with friends and opening businesses without government permission—heavy-handed moves that increase the danger of transmitting disease through contact with cops and incarceration in crowded cells.

Which is to say, focusing narrowly on the danger of the virus has made billions of human beings poorer than they were before, and less free than they have every right to be. And, as the phrase “multiple famines of biblical proportions” implies, there are add-on costs in terms of human life and welfare to being impoverished and under the boot.

“In some cases, people are dying because of the inappropriate application of measures that have been supposedly put in place to save them,” United Nations High Commissioner for Human Rights Michelle Bachelet concedes.

That’s probably a little more analysis than the local supermarket manager had in mind when he talked about balancing fear of “sniffles” against that of an “angry mob,” but he did a fair job of recognizing that there are tradeoffs in dealing with the pandemic. He knows that his customers are hurting because of the measures taken to battle the virus, that their paychecks are drying up, and that it’s difficult to fully stock shelves because some items are in short supply.

That’s not to say he and I would necessarily agree on the proper balance between the competing dangers. Like I said, I think there’s more to COVID-19 than “sniffles.” But if one of us enforces his judgment on the other with a nightstick, that disagreement becomes a lot more costly than if we’re free to make our own assessments about the proper balance of risks—especially since we don’t know each other’s risk tolerances and abilities to weather one danger relative to another.

Noah Feldman, professor of law at Harvard, frames the ability to conceive of tradeoffs in handling the pandemic in terms of the different ways epidemiologists and economists think.

“Unlike epidemiologists, who identify a biological enemy and try to defeat it without thinking much about the costs, economists live on trade-offs,” he wrote for Bloomberg. “It’s an article of faith for economists that there is no such thing as an absolute value—not even the value of human life. Instead, most economists embrace the hardheaded reality that helping one person often leaves another less well-off.”

If you add a civil libertarian (or perhaps just a jaded defense attorney, who knows that “law enforcement” is synonymous with busted heads) to that mix, you might get an even better-balanced discussion of the tradeoffs in various approaches to dealing with the pandemic. That would make for a much more serious discussion about the danger of a new, deadly, and highly contagious virus, balanced with the risk of poverty and despair from shutting down societies in order to battle that virus, and considering the peril inherent in turning the world into a vast prison in order to enforce a shutdown.

Maybe that’s a discussion we could have soon. Because the tradeoffs among considerations of health, prosperity, and liberty are catching up with us even if we don’t want to acknowledge them.

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In calling for the United States to abandon or abolish the World Trade Organization (WTO), Sen. Josh Hawley (R–Mo.) is charting the next path for the Trump-style anti-trade nationalism that has infected the Republican Party. It’s a plan that misunderstands both history and economics, one that would leave both America and the world poorer.

Writing in The New York Times on Tuesday, Hawley argued that the economic crisis created by the COVID-19 pandemic is “an opportunity to build…a better international order and a better economy for a better future for America.” Doing so, Hawley argued, would require major reforms to a global trading system that he thinks has empowered China at the expense of American workers. For starters, he wanted to abolish the WTO.

Two days later, Hawley put his political capital where his mouth is: He introduced a one-sentence bill proposing that the United States withdraw from the WTO. That stops short of abolition, but then, the U.S. can’t actually “abolish” the WTO; it can only pull out of it. (You’d think a China hawk like Hawley would think twice before leaving China as the largest member of the world’s most influential trade organization, but I guess not.) In any case, either abolition or withdrawal would be an economic disaster for the United States and the world at large. Two economists at the University of Indiana estimate that the “disintegration of existing trade agreements will erase 30 percent of the overall gains from trade, which amounts to a $2.7 trillion loss in global GDP.”

Hawley’s op-ed included some made-up statistics meant to show that global trade is impoverishing America. “Under the W.T.O.’s auspices, capital and goods moved across borders easier than before, no doubt, but so did jobs,” Hawley wrote. “As factories closed, workers suffered, from small towns to the urban core. Inflation-adjusted, working wages stagnated and upward mobility flatlined.”

In fact, the WTO doesn’t manage anything. It’s basically just “mutually agreed constraints on protectionism,” writes Simon Lester, associate director of the Cato Institute’s Center for Trade Policy Studies. Nations are still in control of trade policy, but membership in the WTO comes with the recognition that moderating the political impulse to protect national industries makes everyone less well off.

Shawn Donnan, a senior writer for Bloomberg, offers a more poetic metaphor. The WTO is like a wedding venue, he suggests: “It helps pull off the event if you book it. But it doesn’t do much more. Whether you decide to get married and the terms of your marriage are entirely up to you.”

When political scientist Ian Bremmer, president of the Eurasia Group, criticized Hawley’s understanding of how the WTO operates and why it was created in the first place, Hawley doubled down on his misunderstanding of history and geopolitics. In a series of tweets, the senator claimed that the creation of the WTO in 1995 marked a turning point for the global economy (at least in liberal western nations), away from the Cold War focus on containing socialism.

2. My second claim is that Cold War economic system and the 1990s-to present system are different & the creation of the WTO in ’95 in many ways exemplifies this shift. After Cold War, Western Wilsonians aimed to create one global, liberal market. “Washington Consensus” drove this

— Josh Hawley (@HawleyMO) May 7, 2020

That’s a completely backwards reading of history. The chief economic project of the Cold War—at least in its final two decades, once Europe was fully rebuilt—was the creation of a global market for liberal economies. And it made sense for that effort to continue even after the USSR fell. In a 1989 letter to Congress, sent less than a month before he left office, President Ronald Reagan declared that “the United States remains committed to full multilateral liberalization” and endorsed the negotiations that, a few years later, produced the WTO.

Economic data also show how Hawley distorts history. Tariffs and other trade barriers didn’t begin falling around the world in 1995 when the WTO was signed; they had been steadily falling for decades. The long decline in American manufacturing jobs didn’t begin after the WTO was created, either: The number of American manufacturing jobs peaked in 1979 at around 19.5 million. But the era of greater global trade has helped spur a new wave of American manufacturing growth—jobs in that sector are up 12 percent since bottoming out in 2010. And when it comes to outputs, American manufacturing has never been more valuable than it is now. America’s industrial production last year was 48 percent higher than in 1995, according to the Federal Reserve.

Outsourcing low-end manufacturing has allowed America to focus on manufacturing more expensive goods while maintaining access to cheap consumer goods that are now mostly made elsewhere. That shift has had negative consequences for some individuals, but addressing those human costs is a very different project than the one Hawley and the other neo-nationalists are proposing. Withdrawing from the WTO won’t bring those jobs back. It will only make it more difficult for Americans to access the trading networks that are the backbone of the global economy.

The creation of the WTO, viewed in its proper context, is not an inflection point that marked the beginning of some “new model global economy” that Hawley wants to tear down. It was the culmination of a decades-long fight to stop socialism, expand markets, and boost production and prosperity all around the world. If those are the outcomes Hawley wants to reverse, he should say so.

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The government has not been an efficient or competent dispenser of the masks so vital to protecting health care workers and patients from COVID-19.

As of mid-April, The Wall Street Journal reports, the federal government had for whatever reason dedicated millions in contracts, involving at least 80 percent of the 20 million N95 masks it was trying to procure, from “suppliers that either had never done business with the federal government or had only taken on small prior contracts that didn’t include medical supplies.” Predictably, some of those vendors “missed delivery deadlines or have backed out because of supply problems. The parent company of one supplier is in bankruptcy and its owners have been accused of fraud in lawsuits by multiple business partners.”

One contractor, who usually works in hospital renovation for the government, told the Journal he just figured he’d be able to find the masks somehow through suppliers he typically worked with. After he agreed to a $5.5 million contract, the paper says, he was “stymied by sellers that don’t really have high-quality masks or who jack up the price.”

At least one would-be contractor has now been nabbed for fraud on such a mask deal.

ProPublica tagged along with what the Journal called the “largest N95 mask contract given out by the VA [Veterans Administration], for an initial $35.4 million.” The company, Federal Government Experts, “agreed to provide the VA six million masks for $5.90 apiece by April 25, with potential for another five million masks at the same price at a later date, for a total of $64.9 million, according to federal contracting data.”

It didn’t work out. As Robert Stewart—the boss at Federal Government Experts—wondered to the ProPublica reporter himself, “Awarding a $34.5 million contract to a small company without any supply chain experience….Why would you do that?”

Stewart let that reporter tag along on fruitless (and expensive) private jet rides (including picking up what Stewart hoped would be his proud parents) on his way to cities where he didn’t know he’d find any masks, and in general to witness him get jerked around by other unreliable potential sources for the masks he promised to deliver.

The fiasco ended with no masks delivered—but at least, according to the VA, no money paid either. (This contract paid only on delivery.) Despite months of scrambling, the Veterans Administration was not prepared to keep its hospitals equipped with masks. As of now over 2,000 V.A. employees have tested positive.

Stewart’s absurd deal is only the tip of the iceberg in questionable procurement practices. ProPublica notes that the administration “has handed out at least $5.1 billion in no-bid contracts to address the pandemic.”

The feds aren’t the only ones making bad mask decisions. California is currently trying to get a refund on a $456.9 million wire transfer it sent as a down payment on a $600 million contract for 110 million N95 masks. It paid the money to a firm called Blue Flame Medical, which, The Wall Street Journal informs us, was “founded days earlier by former Republican fundraiser Mike Gula….Blue Flame struck a flurry of deals with states looking for medical supplies in late March and the first weeks of April, most of which have unraveled.” Maryland and Alabama are also cancelling orders with the company, having decided that they are unlikely to be fulfilled.

Meanwhile, the Los Angeles Times reports that Gov. Gavin Newsom of California is refusing “to reveal the contents of a $990-million contract for purchasing protective masks from a Chinese electric car manufacturer.” All the state would cough up was that they committed to buying 200 million masks a month for two months, of which 150 million were N95, but “all other details, including the price paid per mask, have been kept confidential.” Even the state’s legislators are being blocked from learning details of the deal. Such secrecy is not comforting when such enormous amounts of public funds are being spent.

When it does have the masks, the government hasn’t been a great or intelligent caretaker of distributor of them. The Transportation Security Agency decided to hoard more than 1.3 million N95 respirator masks (which it received from Customs and Border Protection) rather than distribute them to hospitals or agencies or people who might lack them—even, as ProPublica reported, “as the number of people coming through U.S. airports dropped by 95% and the TSA instructed many employees to stay home to avoid being infected.”

Other wasteful, clumsy, or even macabre stories have arisen from government attempts to help with or procure medical equipment. In Seattle, the county Public Health Department sent a Native American community health board body bags instead of requested medical supplies.

Before COVID-19 hit, certain pundits were promoting “state capacity libertarianism“—the idea that it is silly to focus on how much government spends or taxes, or the ways it dictates how people live, buy, sell, or behave, or the breadth and width of tasks it takes upon itself: What’s important, this argument holds, is how effective and smart government is at doing what it tries to do.

The idea was, at best, an attempt to turn libertarian energies toward making government better at what it does. But these not-at-all-shocking snafus show no obvious way the concept could help, other than hand-waving calls to have better people making better decisions.

Mask procurement is not going awry because government lacks the capacity to do anything. They have plenty of money, essentially as much as they want to have, and they have plenty of staff. It’s not because they don’t have professional experts and bureaucrats trying to manage things, and it’s not because Republicans hate government and want it to fail.

Even in a relatively free market, fraud and incompetence exist. The government in its mask decisions have shown a keen ability to find market actors who are very bad (deliberately or not) at what they do and offer them ungodly amounts of money. But government’s unique combination of endless money and impunity for messing things up mean that the state is going to get things more wrong, more often. And that’s true even, or perhaps especially, when it’s urgent that the state get things right. The evidence is in the news every day, even if ideological blinders prevent non-libertarians from acknowledging it.

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A California police officer had already shot three people on the job before he was caught on video for beating up a suspect.

The Los Angeles Police Department (LAPD) released a statement this week about the use-of-force incident which occurred on April 27. According to the statement, Officer Frank A. Hernandez and another officer responded to a trespassing call in the Hollenbeck area. The officers asked the suspected trespasser to leave the property.

A bystander’s video shows the suspect standing with his hands behind his back just before Hernandez mercilessly beats him.

CAUGHT ON VIDEO… LAPD Hollenbeck Division officer throws flurry of punches at a man detained by police. The incident prompted an internal investigation against the officer for misconduct and excessive use of force. FULL VIDEO and story here: https://t.co/JWBbxpnzX8 pic.twitter.com/HWONTUErqU

— FOX 11 Los Angeles (@FOXLA) May 5, 2020

The suspect sustained “abrasions to his head and face” while Hernandez received injuries to his hand.

An internal affairs group for the police department is now investigating the incident and Hernandez was “assigned home.”

LAPD Chief Michel Moore released his own statement on Tuesday, saying the incident was “clearly not consistent with the core values of the Los Angeles Police Department.”

For Hernandez, however, the incident is but another mark in his record. Hernandez has been involved in not one, not two, but three shootings on the job.

The Los Angeles Times reports that the first shooting occurred in 1999 when Hernandez shot a robbery suspect.

The second occurred in 2008. Hernandez was pursuing a suspect who threatened officers with a firearm when he crossed paths with Joseph Wolf, who had nothing to do with the incident. Hernandez yelled at Wolf to stop. When he attempted to return to his home, since he was a bystander, Hernandez shot him in the leg. Wolf was charged with assault with a deadly weapon, but the only weapons found in his residence were two plastic toy guns. Wolf later accused the LAPD of fabricating charges, which were eventually dropped, to cover up the mistake.

The most recent shooting occurred in 2010. Manuel Jaminez Xum, a day laborer from Guatemala, was reportedly wielding a knife while drunk and threatening two women in the area. Officers ordered him to put the weapon down in English and Spanish. Hernandez shot him twice after he allegedly lunged towards him. Activists protested the shooting because they said Jaminez spoke K’iche’, an indigenous Guatemalan language, and could not have possibly understood the commands.

As for repercussions, the Los Angeles County District Attorney’s Office found each shooting justified. If Hernandez’s recent behavior is truly inconsistent with the LAPD’s values, as Moore stated, then the department ought to make sure he finally faces real consequences for his recurrent use of excessive force.

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Shak v. Shak, decided yesterday by the Massachusetts Supreme Judicial Court, involved a family court order addressed to two divorcing parents (the child was one year old at the time of the divorce):

1) Until the parties have no common children under the age of [fourteen] years old, neither party shall post on any social media or other Internet medium any disparagement of the other party when such disparagement consists of comments about the party’s morality, parenting of or ability to parent any minor children. Such disparagement specifically includes but is not limited to the following expressions: ‘cunt’, ‘bitch’, ‘whore’, ‘motherfucker’, and other pejoratives involving any gender. The Court acknowledges the impossibility of listing herein all of the opprobrious vitriol and their permutations within the human lexicon.

2) While the parties have any children in common between the ages of three and fourteen years old, neither party shall communicate, by verbal speech, written speech, or gestures any disparagement to the other party if said children are within [one hundred] feet of the communicating party or within any other farther distance where the children may be in a position to hear, read or see the disparagement.

The court held this violated the First Amendment:

[T]he judge properly noted that “the State has a compelling interest in protecting children from being exposed to disparagement between their parents.” However, as important as it is to protect a child from the emotional and psychological harm that might follow from one parent’s use of vulgar or disparaging words about the other, merely reciting that interest is not enough to satisfy the heavy burden of justifying a prior restraint.

Assuming for the sake of discussion that the Commonwealth’s interest in protecting a child from such harm is sufficiently weighty to justify a prior restraint in some extreme circumstances, those circumstances do not exist here. No showing was made linking communications by either parent to any grave, imminent harm to the child. The mother presented no evidence that the child has been exposed to, or would even understand, the speech that gave rise to the underlying motion for contempt.

As a toddler, the child is too young to be able to either read or to access social media. The concern about potential harm that could occur if the child were to discover the speech in the future is speculative and cannot justify a prior restraint.

Significantly, there has been no showing of anything in this particular child’s physical, mental, or emotional state that would make him especially vulnerable to experiencing the type of direct and substantial harm that might require a prior restraint if at any point he were exposed to one parent’s disparaging words toward the other. Cf. Felton v. Felton (Mass. 1981), and cases cited (reversing and remanding for further consideration probate judge’s order restricting father’s visitation unless he refrained from instructing children in his religion—”harm to the child … should not be simply assumed or surmised; it must be demonstrated in detail”).

Because there has been no showing that any harm from the disparaging speech is either grave or certain, our analysis regarding the permissibility of the nondisparagement order issued in this case ends here. We note, however, that there are measures short of prior restraint available to litigants and judges in circumstances in which disparaging speech is a concern. For example, our ruling does not impact nondisparagement agreements that parties enter into voluntarily. Depending upon the nature and severity of the speech, parents who are the target of disparaging speech may have the option of seeking a harassment prevention order pursuant to G. L. c. 258E, or filing an action seeking damages for intentional infliction of emotional distress or defamation.

And certainly judges, who are guided by determining the best interests of the child, can make clear to the parties that their behavior, including any disparaging language, will be factored into any subsequent custody determinations. Of course, the best solution would be for parties in divorce and child custody matters to rise above any acrimonious feelings they may have, and, with the well-being of their children paramount in their minds, simply refrain from making disparaging remarks about one another.

We recognize that the motion judge put careful thought into his orders in an effort to protect a child caught in the middle of a legal dispute who was unable to advocate for himself. However, because there was no showing of an exceptional circumstance that would justify the imposition of a prior restraint, the nondisparagement orders issued here are unconstitutional.

I agree that the injunction here was unconstitutional, and I think the court’s decision is a step in the right direction. But it seems to me that the right analysis should be somewhat different (as I discuss at length in my Parent-Child Speech and Child Custody Speech Restrictions, 81 NYU L. Rev. 631 (2006)).

[1.] I think that restrictions on non-ideological speech (“your mother is a whore” or “your father’s new wife is a whore”) said to the child, justified by the interest in protecting the child’s relationship with the other parent should generally be constitutional. They seem unlikely to materially interfere with public discussion, and likely to protect both the children’s best interests and the other parent’s rights; and if framed as injunctions, they can be crafted in a way that is clear enough to comply with the void-for-vagueness doctrine (though of course it will often be hard to accurately adjudicate whether they have been violated). The restrictions do burden parents’ desire to express themselves, and may deny information to the children; but, as for reasons specific to parent-to-child speech that I discuss more in the article, these concerns shouldn’t play as much of a role here as they do with speech to adults.

[2.] But rules that threaten to strip a parent of child custody because of the parent’s speech are speech restrictions, as much as are rules that threaten to throw a parent in jail because of the parent’s speech. Civil liability based on the content of one’s speech presumptively violates the First Amendment, unless the speech falls within a First Amendment exception. So does a tax based on the content of one’s speech. The same must apply to the far greater burden of losing part of one’s parental rights based on the content of one’s speech.

[3.] I appreciate the court’s desire to limit injunctions to situations which involve clear and pressing threat of harm. Indeed, in this case it may well be that, by the time the child grows up enough to search social media, the parties might be less angry at each other and might have indeed by then deleted the insulting posts (or the posts would be otherwise not easily visible).

But I think that, even if the child were older and able to see the posts—and had been upset by the posts—I don’t think that would justify threatening parents with jail for publicly disparaging the other parent’s morality and parenting. It seems to me that people’s First Amendment rights to discuss their lives to their Facebook friends and others, including to explain why they got divorced, why they are upset, and what problems they are facing, can’t be trumped even by the desire to avoid psychological distress to their children.

I agree that publicly and harshly (and often even mildly) criticizing one’s ex is usually best avoided, especially when there are children, for a wide variety of reasons. But I think the right to say such things is nonetheless part of our freedoms of speech.

In any case, though, this is an important and likely helpful decision.

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