Tag: hit&run

As activists around the world recently celebrated Earth Day with warnings about the awful state of our planet, now seems like the right time to share the good news that actually—contrary to countless dire predictions—we’re not running out of resources. In fact, the late economist and scholar Julian Simon was right: People again and again have innovated “their way out of resource shortages.”

As Mark Perry of the American Enterprise Institute reminds us in an article about “18 spectacularly wrong predictions made around the time of first Earth Day in 1970,” back in 1969, Stanford University biologist Paul Ehrlich wrote that “Most of the people who are going to die in the greatest cataclysm in the history of man have already been born.” He added that by 1975, “some experts feel that food shortages will have escalated the present level of world hunger and starvation into famines of unbelievable proportions.” In 1970, he revised his prediction for the worse to warn us, as Perry writes, that “between 1980 and 1989, some 4 billion people, including 65 million Americans, would perish in the ‘Great Die-Off.'”

In 1972, a group known as the Club of Rome made similarly apocalyptic predictions.

In response, Dr. Simon, who at the time of his death in 1998 was an economics professor at the University of Maryland, argued that these predictions were wholly unwarranted. There would be no extinction from starvation. Simon recognized that people are the ultimate resource and would innovate their way toward greater abundance.

Ultimately, Simon challenged Ehrlich to a wager. Ehrlich believed that population growth meant increased scarcity and, hence, higher commodity prices. Simon believed that “more people meant more brains,” which means better extraction technologies, more efficient methods of production, and the more efficient use of commodities—all of which lead to lower commodity prices.

The bet itself was meant to determine whether commodity prices would rise or fall over the period from 1980-1990. If they fell, that would mean that the commodities became more abundant. If instead they rose, that would have signaled that commodities became scarcer. Simon was willing to bet that over any number of years, inflation-adjusted commodity prices would fall.

Simon won that bet. During the 1980s, the prices of the commodities in the Simon-Ehrlich bet decreased. Ehrlich’s dire prediction thankfully never came to pass. Some have argued that had they picked the following decade, Ehrlich may have won. That said, the consensus is that when looking at an index of all commodities over a 100-year period, there’s a clear decline in prices with a few short-lived periods of increase.

This failure didn’t stop Ehrlich and others from continuing to issue similarly apocalyptic predictions up to this day. In response, two scholars have picked up the Simon torch to, once again, closely study the issue. The true heirs of the great humanist and optimist Simon, Marian Tupy from the Cato Institute and Gale Pooley from Brigham Young University-Hawaii, have launched The Simon Abundance Index, which offers a new and better way to measure resource availability “using the latest price data for 50 foundational commodities” (as opposed to five in the Simon-Ehrlich wager).

They base their measure on three original concepts:

1. The time-price of commodities, or “the amount of time that an average human has to work in order to earn enough money to buy a commodity.”

2. The price elasticity of population, which is a measure of whether population growth indeed increases the availability of resources.

3. The Simon Abundance Index, which “measures the change in abundance of resources over a period of time.”

Based on their measurements, Pooley and Tupy confirm Simon’s admittedly counter-intuitive thesis—the faster a population grows, the greater the availability of natural resources. As they beautifully conclude, “The world is a closed system in the way that a piano is a closed system. The instrument has only 88 notes, but those notes can be played in a nearly infinite variety of ways. The same applies to our planet. The Earth’s atoms may be fixed, but the possible combinations of those atoms are infinite. What matters, then, is not the physical limits of our planet, but human freedom to experiment and reimagine the use of resources that we have.”

So, cheer up! And stop freaking out about predictions of our imminent demise.

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Adam Lowther was a busy man, traveling constantly for his work as director of the Air Force’s Advanced Nuclear Deterrence Studies. But on the afternoon of August 30, 2017, he called his wife, Jessica, with good news: He would be home in time to take their two children—ages 4 and 7—to tae kwon do practice.

Little did Adam know that he was about to be forcibly separated from his children for half a year, and would spend more than $300,000 in legal bills trying to reunite his family after it was torn apart by the New Mexico Children, Youth, and Families Department (CYFD) on the basis of a false sexual abuse accusation. Now Adam and his wife are suing the police and child services officials for violating their rights, misleading other authorities about the merits of the case against them, and traumatizing their children.

They are suing, not just in hopes that they might recover some of their financial losses, but also to bring about institutional change. The experience has opened up the Lowthers’ eyes to the inequities of the criminal justice system—and they don’t want anyone to go through what they did.

“We never thought this kind of thing could ever happen,” Adam told Reason. “We assumed that law enforcement was competent and we assumed that they obeyed the law. That was a wrong assumption, but that was our assumption.”

In the middle of that August 30 phone call with her husband, Jessica heard a knock at the front door of their Albuquerque home. It was the police. They told her they had come to perform a welfare check on the kids.

“I’m sorry, a welfare check?” asked Jessica, according to a court transcript of the encounter. “I don’t understand.”

Bernalillo County Sheriff’s Deputies Catherine Smalls and Brian Thornton explained that someone from one of the kids’ schools had called the authorities to report abuse. Jessica was baffled. She asked the officers if they were sure they had the right house. They were sure. She asked them to wait outside until Adam arrived at home. They agreed, but ordered Jessica not to shut the front door.

“I’m telling you, we take this stuff very seriously,” said Smalls.

As if to illustrate this point, Thornton told Jessica that “if this was my investigation, you would be in the back of a cop car right now. You’re obstructing our duty to check on the well-being of a child.”

But it was not yet the county sheriff’s investigation—it was CYFD’s investigation. An agent from the department would be interviewing Becca, the Lowther’s 4-year-old daughter, about abuse that she had allegedly reported to a teacher at school, according to the cops.

“I assume we’re not going to tae kwon do tonight?” asked Jessica.

“I… yeah,” said Smalls. “Pretty much assume that.”

***

Adam grew up in Houston, Texas. He was an Eagle Scout and enlisted in the military when he turned 18. Later, he attended Arizona State University (ASU), eventually earning a Ph.D. in International Relations. In 2008, he joined the Air Force Research Institute. In 2015, he became director of the Air Force’s Advanced Nuclear Deterrence Studies, a position that required top secret security clearance. He is also the author of several books on national security topics.

Jessica and Adam met at ASU through an organization for Conservative Baptist students. “We’ve been together since 1997,” Adam says. “Married over 20 years.”

The Lowthers eventually settled in Albuquerque. In their third year there, as summer 2015 drew to a close, daughter Becca was a few days shy of her fifth birthday, and thus could not enroll in the local public school her brother attended. Instead, Adam and Jessica sent her to a private school, Calvary Christian Academy.

In the middle of her second week at the school, her kindergarten teacher, a woman named Betty DuBoise, called the authorities to report that Becca had claimed her father and brother sexually assaulted her. (Throughout this article, I refer to the two children using the pseudonyms “Becca” and “Charlie.”) The Bernalillo County Sheriff’s Office (BCSO) showed up at the Lowther residence within the hour. They told Jessica that Becca had been “very descriptive” about what had happened, but did not specify the exact nature of the complaint. When Jessica pressed them for more information, they rebuffed her, and said they would not give further details until after a therapist had interviewed Becca. Jessica asked if this therapist was on their way over to the house. No, the officers revealed. Becca would be taken to the therapist.

“You’re going to take her away?” Jessica asked.

It was at this point that Smalls and Thornton decided there was “no reasoning” with Jessica, and asked her to step aside or be detained. Given no other choice, she let the officers inside to check on the kids. Jessica tried to explain to Becca what was going on, but Smalls stopped her because “that could be seen as coaching her.”

Outside, Adam had been arrested when he arrived on site and placed in the back of a cop car. He told the officers that they couldn’t enter his home without a warrant, but they said they didn’t need one, citing a New Mexico statute that authorizes the police to take children into protective custody if the authorities have a reasonable belief that the kids are in danger.

Of course, the police also made clear that they always assume the kids are in danger, if that’s what was reported.

“When we investigate things like this, whether it’s an anonymous call or [whatever], we have to take these cases involving children at their word and at their absolute worst,” the officers told the Lowthers.

In this case, the officers chose to rely heavily on the word of Becca’s teacher, Betty DuBoise, who had known the child for eight days. What DuBoise had told the cops, the Lowthers would later learn, was that she had overheard Becca ask another student if he had a penis—a word the Lowthers claim she did not and could not have known. DuBoise then pulled Becca aside and questioned her: It was at this point, according to the teacher, that Becca claimed her father had touched her inappropriately and penetrated her with his finger. Her brother also touched her, DuBoise claimed.

In her short time as Becca’s teacher, DuBoise had questioned the Lowthers about their daughter’s habit of sticking her hand down her pants, according to Adam. They promised to talk to Becca about this, but saw it as normal behavior for a child her age, and evidently did not show the matter as much seriousness as DuBoise expected.

More than a year later, Deputy District Attorney Leila Hood of the Albuquerque Special Victims Unit would issue a letter to Bernalillo County investigators detailing her numerous reasons for declining to prosecute Adam—issues with DuBoise’s statements chief among them. But the night of his arrest, the authorities simply presumed everything they had been told must be true.

“They made no effort to verify anything that the teacher had said,” says Adam.

The police kept him in the backseat of a hot car for hours before finally taking him to the station around 10:30 p.m. Since Adam was under arrest and Jessica was “detained,” the children were technically without guardians, and the state took them into protective custody. Adam would not see them again until March.

***

Within three days, the media had gotten a hold of the story. The Albuquerque Journal ran with the headline, “Nuke Expert at Kirkland Accused of Raping 4-Year-Old Girl.” Adam’s mugshot accompanied the article.

He was released after a week in jail, but couldn’t return home. He also lost his job and security clearance.

“Adverse publicity created by the local news media coverage concerning your charges and allegations has had an adverse effect upon the Department of the Air Force,” wrote Adam’s boss, a general. “Your alleged off-duty criminal misconduct and subsequent publicity cannot be tolerated in your position which requires utmost trust and integrity during the development of Nuclear Deterrence Studies.”

Meanwhile, for the Lowther’s 7-year-old son, Charlie, protective custody was anything but. After all, he too stood accused of sexual abuse. The police took both children to All Faiths, a private organization that acts as a safehouse for local law enforcement. Detectives interviewed Becca for over an hour. They also interviewed Charlie for 45 minutes about abuse he may have either suffered or perpetrated. Note that at this point, Charlie was in state custody—the very authorities legally responsible for his well-being were also interrogating him about whether he should be considered a suspect in a criminal investigation.

Becca was also forced to undergo not one but two separate sexual abuse examinations. To say that these were incredibly intrusive would be an understatement: Nurses examined, and even photographed, her anus.

“My daughter was forced through several invasive exams of her private parts,” says Adam. “She is petrified of doctors to this day.”

The children were then sent to foster care for 48 hours. Afterward, CYFD allowed Jessica to get them back, but only under the supervision of her own parents, who were required to move into the Lowther residence and serve as “safety monitors.”

But a few days later, CYFD again took custody of the children. At a September 5 hearing, Jessica’s father had told a social worker that he did not believe Adam was guilty. The social worker promptly reported this to Maria Morales, who was the investigator for CYFD, and Jacob Wootton, the detective assigned to Adam’s criminal case. Morales swore an affidavit alleging that Jessica was an unfit mother. Jessica lost custody again, this time for two full months. Becca and Charlie were separated—not just from their parents, but also each other.

***

It was a rough time for the family. Adam had to live with an elderly couple he knew from church. The children were in foster care. Charlie had a particularly difficult time, and met with his school counselor on 55 separate occasions—even threatening to kill himself. Jessica was home alone with the family dog, who passed away in late October.

Finally, on November 7, the children’s court judge decided to return custody to Jessica. Wootton was furious, and confronted the judge in his quarters, where he fumed that returning custody to Jessica would ruin his criminal case against Adam. The exchange was overheard by Adam’s attorney, Marc Lowery.

“I could hear a commotion coming from the judge’s chambers,” says Lowery. “I heard loud voices and when I looked in I saw the detective talking with the judge. They were arguing about the case.”

The judge was unmoved by Wootton’s ranting, and restored Jessica’s custody anyway. Wootton’s next move was to arrest Jessica. He did so the second she set foot outside the courthouse.

“This was malicious,” says Adam. “I’m not sure what lengths there were to which [Wootton] would not go to get what he wanted.”

In a criminal complaint filed against Jessica on the afternoon of September 7, Wootton claimed that Becca had told DuBoise—who was still her teacher, as mandated by CYFD—that during one of the supervised visits between mother and daughter, “mommy whispers in my ear not to say anything, to be quiet.” DuBoise made this report on October 19, three weeks before Wootton arrested Jessica for it. The charge against her was “bribery or intimidation of a witness.”

The cops took Jessica to jail, strip-searched her, and forced her to take a pregnancy test before releasing her on personal recognizance. Thankfully, the district attorney decided not to press charges, and Jessica finally got the kids back.

Adam’s reunion took longer—much longer. Months later, in March 2018, the court allowed Adam to have supervised visits with his children. The criminal case against Adam had by then collapsed: Though the detectives had repeatedly threatened to go to a grand jury, they never did so, and thus actual criminal charges never materialized. In April, the court-mandated therapist opined that Adam was not a threat to the kids, and his custody was restored the next month. On May 31, the Lowthers sold their home and moved to Texas, understandably eager to put as many miles between them and the Albuquerque authorities as possible.

***

On September 14, 2018, the Lowthers filed a lawsuit alleging that BCSO, CYFD, Wootton, Morales, and three other specific agents of law enforcement had violated the family’s rights and harmed the children.

The suit raised important questions about whether child services was acting in the children’s interests, or in service of a dubious criminal investigation.

“Immediately after the removal and late into the night, the children were subjected to hours of forensic interviews,” the Lowthers write in the suit. “The forensic interviews and physical examinations were conducted without a warrant or court oversight. CYFD, who was the guardian of the children, acted with indifference to the trauma caused by the forensic interviews and examinations. Indeed, the removal decision was made in furtherance of the criminal investigation—not to keep the children safe from harm. This itself was contrary to the children’s interests and violative of their constitutional rights.”

The lawsuit also made the noteworthy claim that DuBoise had “a history of legal troubles, including convictions for shoplifting and several lawsuits for failure to pay bad debts, which bears on her credibility.” A copy of a private investigator’s report confirming these allegations was obtained by Reason.

When reached for comment, Calvary Christian Academy’s principal declined to answer any questions about DuBoise. According to Adam, she no longer works for the school, and her own attorney has had trouble getting in touch with her.

BCSO did not respond to a request for comment. A spokesperson for CYFD declined to comment, citing pending litigation.

The Albuquerque Journal, which had previously published Adam’s mugshot under the “Nuke Expert Accused of Raping 4-Year-Old Girl” headline, covered the lawsuit more even-handedly in a subsequent article, “Lawsuit Says Sexual Assault Charge Is Groundless.” This may have prompted District Attorney Raul Torrez to review the case, and on October 18, his deputy—Leila Hood, of the special victims unit—wrote a letter detailing the myriad reasons why the office declined to prosecute Adam. The letter was addressed to Jacob Wootton.

In Hood’s opinion, Becca’s statements to investigators during her safehouse interview conflicted with what she had allegedly told DuBoise. Hood quoted one of the doctors who had interviewed Becca: “She does not know the difference between truth and lie. She likely does not understand the concept of a deliberate lie, she feels no compunction to tell the truth because she is not cognitively developed enough to comprehend the difference.” Hood also noted that investigators had fed Becca false information, calling the entire enterprise into question. In the district attorney’s opinion, her father having benignly assisted her with toilet-related issues was a plausible explanation for whatever story she may or may not have told DuBoise.

Hood also had an issue with DuBoise’s credibility, or at the very least her blind faith in Becca’s stories. In the middle of Wootton’s effort to stop Jessica from regaining custody, DuBoise had signed an affidavit that Becca had claimed her father was attending church with her, in violation of a court order. But this was impossible: Adam was wearing an ankle monitor, and Becca was under the supervision of a social worker while at church.

A polygraph examination administered by the Bernalillo Sheriff’s Department also lent credence to Adam. The department had initially interpreted the test to mean that Adam’s answers were “deceptive,” but the district attorney conducted an independent analysis: Bernalillo had misunderstood the results, which were “favorable to the alleged perpetrator,” according to Hood.

In filing their lawsuit, the Lowthers hope to recoup some of the estimated $300,000 they lost defending themselves. They also hope to discourage the authorities from handling child abuse cases in such a manner.

“I can only imagine how bad it is for other families,” said Adam. “We want this to stop.”

Indeed, while the Lowthers were financially well equipped to handle legal troubles of this nature, they still ended up having to borrow money. Other families who routinely deal with child services and law enforcement are often in even more precarious positions. Diane Redleaf, an attorney who represents families in child services disputes, told Reason‘s Lenore Skenazy that most of her clients are impoverished, and many are immigrants or racial minorities. Half of all black kids in the U.S. will receive a visit from child services, according to one study by the American Journal of Public Health. The state’s coercive power to separate children from their parents is most often experienced by those with scant ability to fight back.

This is something that resonates with the Lowthers. Adam and Jessica are conservatives, but their experience with the criminal justice system significantly altered their thinking.

“Prior to this, I would never have called myself a supporter of Black Lives Matter,” said Adam. “My view of law enforcement has completely changed.”

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Officials in New Zealand have charged six people with supplying or distributing objectionable material for sharing video of the mass shooting at a Christchurch mosque streamed live online by the alleged shooter. The six face up to 14 years in prison. The video and the shooter’s manifesto have been banned in New Zealand.

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From Obriecht v. Splinter, decied yesterday by Magistrate Judge Stephen L. Crocker (W.D. Wis.):

In a brief argument, defendants contend that because Obriecht’s conduct was intended to warn oncoming drivers of a covert law enforcement operation and facilitated the crime of speeding, it does not fall within the protection of the First Amendment. Although defendants cite some cases involving speech that urges or advocates the commission of a crime or instructs others how to commit a crime, they rely on only two cases in making their crime-facilitation argument: (1) Haig v. Agee, 453 U.S. 280, 308-90 (1981), in which the Supreme Court held that an ex-CIA agent’s repeated disclosures of intelligence operations and the names of intelligence personnel were not protected speech under First Amendment because of the “substantial likelihood of ‘serious damage’ to national security or foreign policy”; and (2) U.S. v. Lane, 514 F.2d 22, 26-27 (9th Cir. 1975), in which the Ninth Circuit concluded that a criminal defendant who warned a drug ring of an impending police raid was guilty of aiding and abetting a conspiracy to sell drugs. Although Haig involved a First Amendment challenge, there was no First Amendment claim in Lane, and the court of appeals in that case did not analyze whether the defendant’s conduct could be considered protected speech.

The crux of defendants’ argument is that much like warning others about intelligence operations or an impending police raid, the message that Obriecht conveyed helped others commit an illegal act without getting caught. However, at most, Obriecht’s actions may have prevented the State Patrol from apprehending a few would-be speeders. Obriecht’s warning did not present the same national security concerns at issue in Haig or form an integral part of the crime as in Lane. Compare United States v. Twinn, 369 F. Supp. 2d 721, 724-25 (E.D. Va. 2005) (citing Haig in support of finding that defendant’s identification of undercover police officer not protected by First Amendment because defendant intended to interfere with known investigation of illegal sexual solicitation). As the Supreme Court has made clear, “the prospect of crime … by itself does not justify laws suppressing protected speech.” Ashcroft v. Free Speech Coal., 535 U.S. 234, 245 (2002) (citing Kingsley Int’l Pictures Corp. v. Regents of Univ. of N.Y., 360 U.S. 684, 689 (1959) (“Among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgment of the rights of free speech” (internal quotation marks and citation omitted)). See also NAACP v. Claiborne Hardware, 458 U.S. 886, 909-10 (1982) (knowingly publishing names of people who were not complying with boycott was constitutionally protected, even though some non-participants had been violently attacked and publication clearly could facilitate such attacks).

“No Supreme Court case squarely deals with crime-facilitating speech.” Crime-Facilitating Speech, 57 Stan. L. Rev. 1095, 1128 (2005) (reviewing cases and citing Stewart v. McCoy, 537 U.S. 993, 995 (2002) (Stevens, J., respecting the denial of certiorari) (“Our cases have not yet considered whether, and if so to what extent, the First Amendment protects such instructional speech.”)). However, as Obriecht points out, one federal district court has addressed conduct similar to that in this case and found that it is entitled to protection under the First Amendment. Elli v. City of Ellisville, Mo., 997 F. Supp. 2d 980, 984 (E.D. Mo. 2014) (“Even assuming, arguendo, that Plaintiff or another driver is communicating a message that one should slow down because a speed trap is ahead and discovery or apprehension is impending, that conduct is not illegal.”). In addition, at least two state circuit courts also have found that drivers have a constitutional right to flash their headlights. See State of Oregon v. Hill, Citation No. 034117 (Jackson Cty. (Ore.) Justice Ct. Apr. 9, 2014) (flashing vehicle headlights to warn others about presence of law enforcement is protected free speech under state constitution); State v. Walker, No. I-9507-03625 (Williamson Cty. (Tenn.) Cir. Ct. Nov. 13, 2003) (accepting First Amendment defense to charge of knowingly interfering with officer where defendant flashed headlights to warn oncoming motorists about speed trap).

In sum, although the law is far from clear on this issue, defendants have failed to meet their burden of showing that Obriecht has no plausible claim for relief under the First Amendment.

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Today Donald Trump praised China for classifying the export of fentanyl (or, as he calls it, “fentanol”) as “a major crime,” making traffickers subject to the death penalty. “In China, unlike in our country, the highest level of crime is very, very high,” Trump said at the National Rx Drug Abuse & Heroin Summit in Atlanta. “You pay the ultimate price. So I appreciate that very much.”

Contrary to what the president implied, U.S. law does authorize the execution of drug traffickers in certain circumstances. Drug offenders eligible for the death penalty include leaders of criminal enterprises that sell 60,000 kilograms of marijuana, 60 kilograms of heroin, 17 kilograms of crack cocaine, or 600 grams of LSD.

That provision has been on the books since 1994, but it has never been carried out. It probably never will be, since it seems to be unconstitutional under a 2008 decision in which the Supreme Court said the Eighth Amendment requires that the death penalty be reserved for “crimes that take the life of the victim.” While deadly violence committed “in aid of racketeering activity” or “during and in relation to any…drug trafficking crime” would qualify for that description, nonviolent drug distribution seemingly would not.

Trump has suggested otherwise, arguing that “we have pushers and drugs dealers [who] are killing hundreds and hundreds of people” through overdoses. “If you shoot one person, they give you life, they give you the death penalty,” he said at a March 2018 opioid summit. “These people can kill 2,000, 3,000 people, and nothing happens to them.” He added that “some countries have a very, very tough penalty—the ultimate penalty—and by the way, they have much less of a drug problem than we do.”

Trump made similar comments later that month, and his first attorney general, Jeff Sessions, urged federal prosecutors to seek the death penalty for drug traffickers whenever feasible. Last December the president predicted that “the results will be incredible” if the Chinese government uses “the Death Penalty for distributors and pushers.” So Trump’s thirst for drug traffickers’ blood is well-established, and so is his admiration for authoritarian governments that dare to draw it on a regular basis.

A 2015 report from Harm Reduction International identified 33 countries that authorize the death penalty for drug offenses. But it classified just seven—China, Iran, Saudi Arabia, Malaysia, Singapore, Vietnam, and Indonesia—as “high application states,” meaning “the sentencing of people convicted of drug offences to death and/or carrying out executions are routine and mainstreamed part of the criminal justice system.” Three of those countries—China, Iran, and Saudi Arabia—account for almost all known executions of drug offenders: 546 out of 549 in 2013. Those are the examples Trump wants us to follow.

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President Donald Trump is a nearly inexhaustible source of constitutional puzzles. I’ve practically organized a class around it. One never knows what new gifts he is going to bestow on us. Today, in his morning tweetstorm, he offers us the thought that he could appeal an impeachment to the U.S. Supreme Court.

Can he do that? One would think not, but I suppose hope springs eternal. There are both legal and political reasons for thinking the Court would stay out.

Legally, the text of the U.S. Constitution specifies that the House of Representatives possesses the “sole” power to impeach and the Senate possesses the “sole power to try all impeachments.” When Judge Walter Nixon tried to appeal his impeachment and conviction to the U.S. Supreme Court on the grounds that the procedures that the Senate followed were defective, the Rehnquist Court unanimously rejected that effort.

The parties do not offer evidence of a single word in the history of the Constitutional Convention or in contemporary commentary that even alludes to the possibility of judicial review in the context of the impeachment powers.

Chief Justice William Rehnquist even speculated about the problem of judicial review of a presidential impeachment.

We agree with the Court of Appeals that opening the door of judicial review to the procedures used by the Senate in trying impeachments would “expose the political life of the country to months, or perhaps years, of chaos.” . . . This lack of finality would manifest itself most dramatically if the President were impeached. The legitimacy of any successor, and hence his effectiveness, would be impaired severely, not merely while the judicial process was running its course, but during any retrial that a differently constituted Senate might conduct if its first judgment of conviction were invalidated.

The modern Court does not often seem inclined to invoke the political question doctrine, but here at least the justices were willing to admit that the Constitution had committed this question into the hands of the legislature, not the judiciary.

Perhaps there are circumstances that might tempt the justices to assert judicial supremacy over impeachments as well. After all, the Court is fond of reminding us that it is emphatically a judicial task to say what the law is, and what if Congress seemed to be riding roughshod over the Constitution in how it used the impeachment power? Imagine a Congress willing to impeach a president on grounds that no reasonable person could think constitutes an impeachable offense. Donald Trump apparently prefers to eat his steaks well-done with ketchup. To be sure, this is a grievous offense, but presumably no one thinks it is a high crime or misdemeanor. Imagine further that two-thirds of the Senate is willing convict such a president with no semblance of a trial. “Convict first, go through due process second,” declares the Senate majority leader. The Court might well think that such a Congress has badly abused its constitutional powers and is not even making a pretense of adhering to a good-faith interpretation of the Constitution. Maybe a Court confronted with such a runaway Congress would be tempted to ride to the president’s rescue and discover the limits to the political question doctrine.

But that’s when politics comes into play. A Congress willing to impeach and remove a sitting president on the pretext that he routinely dishonors his steaks could hardly be trusted to sit idly by while the justices attempted to reinstall that president in the White House. If a Court were to attempt to intervene in such a scenario, the justices might well find themselves next on the chopping block. The justices might at this point recall the words of Chief Justice Salmon Chase when the Court was asked to order the president not to enforce the Reconstruction Acts in Mississippi after the Civil War.

Suppose the bill filed and the injunction prayed for allowed. If the President refuse obedience, it is needless to observe that the court is without power to enforce its process. If, on the other hand, the President complies with the order of the court and refuses to execute the acts of Congress, is it not clear that a collision may occur between the executive and legislative departments of the government? May not the House of Representatives impeach the President for such refusal? And in that case could this court interfere, in behalf of the President, thus endangered by compliance with its mandate, and restrain by injunction the Senate of the United States from sitting as a court of impeachment? Would the strange spectacle be offered to the public world of an attempt by this court to arrest proceedings in that court?

“These questions answer themselves,” Chase observed. Indeed. Sorry, Mr. President, you are on your own on this one.

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From Curto v. A Counry Place Condo. Ass’n, decided Monday:

Looking to the express terms of the pool policy, the Association emphasizes that it allows for roughly equal swimming time for both men and women in the aggregate. But this is not enough to save the pool schedule, which discriminates in its allotment of different times to men and women in addition to employing sex as its criterion. Under the most recent version of the schedule, women are able to swim for only 3.5 hours after 5:00 p.m. on weeknights, compared to 16.5 hours for men. The schedule also assigns to men the entire period from 4:00 p.m. onward on Friday afternoons. Women with regular-hour jobs thus have little access to the pool during the work week, and the schedule appears to reflect particular assumptions about the roles of men and women.

The majority doesn’t opine on whether a more balanced allocation of women-only and men-only would be permissible, but Judge Fuentes’s concurrence would have taken a broader position:

While the majority opinion explains that we do not reach the issue of “whether sex-segregated swimming hours necessarily violate the FHA,” I write separately to express my skepticism that the pool’s sex-segregated schedule could be saved by a more even allocation of evening hours between men and women. Our jurisprudence makes clear that facial discrimination does not become lawful merely because its burdens are felt by members of both sexes….

The concurrence noted that

[Some circuit courts] have determined that in certain circumstances, there may be legal justifications for facial discrimination under the FHA. The Sixth, Ninth, and Tenth Circuits have concluded that facially discriminatory policies may be justified if a defendant can show that the policies benefit the protected class or respond to legitimate safety concerns. The Eighth Circuit uses a different standard, requiring defendants to demonstrate that the facially discriminatory policy “was necessary to promote a governmental interest commensurate with the level of scrutiny afforded the class of people affected by the law under the equal protection clause.”

But it concluded that the court needn’t confront the issue, in part because there in any event wasn’t enough of a justification for the discrimination. And he noted in particular that the policy couldn’t be justified as an accommodation for some residents’ religious preferences:

Although the Association defends its discrimination on the basis of the religious concerns of its Orthodox Jewish members, it did not argue that its discriminatory schedule was justified under any recognized exception to the FHA’s antidiscrimination provision…. It also waived any argument that its discrimination was protected by the Religious Freedom Restoration Act.

The Association instead argued that if it did not discriminate on the basis of sex, it would be discriminating against its Orthodox Jewish population because they would be unable to use the swimming pool due to religious modesty laws. But there is no evidence in the record of the number of Orthodox Jewish residents who use the pool, and no evidence of the number of Orthodox Jewish pool users who would be unable to use a mixed-sex pool due to religious objections. At the very least, at the summary judgment stage, the Condominium Association was required to put forward more than speculation about the effects of integrating the swimming pool.

The majority agreed:

Although the Condominium Association’s pool use policy was motivated by the Orthodox Jewish residents’ religious beliefs, the Association did not mention the Religious Freedom Restoration Act at any point in its filings in the District Court or in its merits brief before us. (At our request, the parties discussed RFRA implications in supplemental memoranda.) Thus we determine that the Association has waived any possible RFRA defense to the plaintiffs’ FHA claim.

Even had the Association asserted a RFRA defense, it would lack associational standing to assert the religious free exercise rights of its Orthodox Jewish members. To have associational standing, (1) individual members must have standing in their own right, (2) the interest asserted must be germane to the purpose of the organization, and (3) neither the claim nor the relief requested must require the participation of the individual members in the lawsuit. The first prong is easily met here, but the Condominium Association does not have a religious purpose. Moreover, religious beliefs are highly personal, and in a typical RFRA case the parties asserting a burden on their religion would provide personal testimony about their beliefs and the nature of the burden. Here we have only the Association’s general assertions as to the beliefs of its Orthodox members.

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In a New England Journal of Medicine commentary published today, the authors of the opioid prescribing guidelines that the U.S. Centers for Disease Control and Prevention issued in 2016 reiterate the agency’s recent warning that it does not recommend abrupt or nonconsensual tapering for patients who are already taking high doses of narcotic analgesics for chronic pain. “Unfortunately, some policies and practices purportedly derived from the guideline have in fact been inconsistent with, and often go beyond, its recommendations,” write Deborah Dowell, Tamara Haegerich, and Roger Chou. Those policies and practices, they say, include “inflexible application of recommended dosage and duration thresholds and policies that encourage hard limits and abrupt tapering of drug dosages, resulting in sudden opioid discontinuation or dismissal of patients from a physician’s practice.”

Dowell, Haegerich, and Chou warn that patients forced to reduce their doses “could face risks related to withdrawal symptoms, increased pain, or unrecognized opioid use disorder” and “if their dosages are abruptly tapered may seek other sources of opioids or have adverse psychological and physical outcomes.” They also worry that doctors are responding to the CDC’s advice about the potential risks of opioids by “dismiss[ing] patients from care” or declining to prescribe opioids at all, “even in situations in which the benefits might outweigh the risks.” Dowell et al. say “such actions disregard messages emphasized in the guideline that clinicians should not dismiss patients from care, which can adversely affect patient safety, could represent patient abandonment, and can result in missed opportunities to provide potentially lifesaving information and treatment.” And they note that the guidelines have been improperly applied to “patients with pain associated with cancer, surgical procedures, or acute sickle cell crises.”

The CDC’s recognition that misinterpretation of its guidelines has resulted in needless suffering, patient abandonment, and “adverse psychological and physical outcomes” (including suicide) is welcome, if overdue. “This article should allay anxiety among physicians who prescribe responsibly for patients with chronic pain,” says Sally Satel, a Washington, D.C., psychiatrist who helped organize a March 6 letter to the CDC in which hundreds of health professionals and addiction specialists, including three former drug czars, expressed concern about the unintended consequences of the CDC’s advice. “No longer can any clinician, insurer, health care system, or pharmacist claim ‘the CDC Guideline says’ when it comes to tapering or discontinuation.”

Stefan Kertesz, a University of Alabama at Birmingham pain and addiction specialist who worked with Satel on the letter to the CDC, was also heartened by the NEJM article. “We needed CDC and its guideline’s authors to do precisely what they have done, which was to speak with vigor and clarity to the pressing ethical concern we laid out in our letter,” he says. “In affirming that the guideline did not call for hard dose cutoffs and forced tapers, the guideline’s authors have effectively called for recalibration of policies by insurers, by Medicaid authorities, and by agencies that have set ‘the number of patients above a given dose’ as the primary indicator of bad care.”

The letter to the CDC included testimony from hundreds of patients who have suffered the consequences of that ham-handed approach. “The trauma to patients who have been living in terror these past three years nearly broke my heart many times,” Kertesz says. “The only possible step has been for people familiar with the nexus of science and health policy to speak openly about the problems we have seen, and to trust that most people ultimately want to do what’s right.”

Yet Dowell et al. conspicuously fail to take any responsibility for the unintended but foreseeable harm caused by their advice. When a document is as widely misconstrued as the CDC’s guidelines have been—by insurers, regulators, legislators, pharmacists, and law enforcement agencies as well as clinicians—it is fair to ask how the authors left themselves open to misinterpretation.

According to the guidelines, “Clinicians should use caution when prescribing opioids at any dosage, should carefully reassess evidence of individual benefits and risks when considering increasing dosage to ≥50 morphine milligram equivalents (MME)/day, and should avoid increasing dosage to ≥90 MME/day or carefully justify a decision to titrate dosage to ≥90 MME/day.” The implication is that daily doses of 90 MME or more per day are rarely, if ever, medically justified.

It is hardly a stretch for physicians with patients who exceed this arbitrary threshold, including patients who have been functioning well on high doses for years, to worry that they will be perceived as practicing outside the bounds of proper medical care. Given the scrutiny that regulators and law enforcement agencies such as the Drug Enforcement Administration (DEA) have been applying to doctors in response to the “opioid epidemic,” prescribing practices portrayed as extreme and dubious by the CDC are apt to attract unwelcome attention that could jeopardize a physician’s livelihood and liberty.

“We still, unfortunately, have physicians who worry about capriciousness on the part of the DEA,” Satel notes. “That is the next step in efforts to ensure that doctors can continue to serve pain patients who have been benefiting from opioids.” While “the DEA does indeed have a job to do,” she says, “doctors are confused about what could make them a target.”

How doctors respond to anti-opioid pressure will depend on how they weigh their duty to patients against their personal risk. In this context, forced tapering and abandonment were predictable outcomes, even though the CDC guidelines say doctors should reduce doses only when the risks outweigh the benefits and describe the process as collaborative and consensual.

“Clinicians should empathically [sic] review benefits and risks of continued high-dosage opioid therapy and should offer to work with the patient to taper opioids to safer dosages,” the guidelines say. “For patients who agree to taper opioids to lower dosages, clinicians should collaborate with the patient on a tapering plan.”

Dowell et al. complain that “the guideline has been misimplemented,” saying “policies invoking the opioid-prescribing guideline that do not actually reflect its content and nuances can be used to justify actions contrary to the guideline’s intent.” But those nuances were bound to be lost amid the fear and anxiety caused by the government’s crackdown on prescription pain relievers.

Notwithstanding Dowell et al.’s disavowal of “hard limits and abrupt tapering,” that is what happened across the country after the CDC guidelines came out, as reflected in this sign at a doctor’s office in Washington state. “Beginning February 2017,” it says, “Morphine Equivalency Dosing WILL decrease until CDC guidelines are met by June 2017. Target is 90mg of Morphine equivalency per day, or less. All medication adjustments will be based on this new clinic policy.”

While decrying involuntary and precipitous tapering, Dowell et al. present the general decline in opioid prescribing as a sign of progress. “Although outpatient opioid prescribing had been declining since 2012,” they write, “accelerated decreases—including in high-risk prescribing—followed the guideline’s release.” Yet the continuing drive to reduce the volume of opioids prescribed in the United States has encouraged doctors, insurers, and policy makers to target patients on high doses, who consume a disproportionate share of the total. Kertesz emphasized that point at a recent conference in Charleston.

Dowell et al. do not acknowledge the downside to the decline in opioid prescribing, which has been accompanied by a surge in opioid-related deaths as both patients and nonmedical users turn to the black market, where the drugs are much more dangerous because potency is highly variable and unpredictable. Nor do they question their emphasis on the 90-MME threshold, which is scientifically problematic for several reasons. It assumes that analgesic effect corresponds to overdose risk and that different opioids can be reliably compared to each other based on fixed ratios. It ignores numerous factors that affect how a patient responds to a given dose of a particular opioid, including obvious considerations such as the patient’s weight, treatment history, and pain intensity as well as subtler ones such as interactions with other drugs (which can suppress or amplify an opioid’s effects) and genetically determined differences in enzyme production and opioid receptors.

“Policies should allow clinicians to account for each patient’s unique circumstances in making clinical decisions,” Dowell et al. write. The CDC’s 90-MME threshold, however it was intended, has in practice encouraged a much less discriminating approach, one that sacrifices patients’ welfare for the sake of conforming with the perceived demands of the federal government.

“The CDC bears full responsibility for how these arbitrary dose levels are being implemented throughout the country and the consequences for the people in pain,” Lynn Webster, a former president of the American Academy of Pain Medicine who signed the March 6 letter to the CDC, told me last year. “I said at the time when they were proposed that if something comes from the CDC as a guideline, it is more than a guideline. It will be interpreted basically as a level of dosing that if you exceed [it], then you are at legal jeopardy.”

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In a fit of nanny-state pique last year, London announced it would be banning “junk food” advertising on public transportation, allegedly part of an effort to “fight obesity” by laying the blame on people selling food rather than those eating too much of it.

The ban was itself insultingly patronizing. And now, almost hilariously, it turns out that it was written so broadly that it’s forbidding all kinds of food advertisements that the average person (even one with healthy eating habits) would not describe as “junk.” It’s also forcing the removal of representations of food on advertisements that simply use it symbolically to sell something else entirely. Apparently even the very image of a forbidden food will drive the weak-willed into helpless cravings.

The ban covers any food that’s high in fat, sugar, or salt, which is a description of what you’ll find in “junk food,” but is also a feature of foods that are perfectly healthy to eat. The Telegraph notes that the banned food list is hitting everything from cheese to honey to olive oil to canned fruit. Bacon or butter? That’s a big nope, ketogenic diets be damned.

The unintended consequences of the advertising ban reached comedic levels today, with news that London’s transit system had to change several of its own ads for having a representation of a forbidden food. As The Telegraph reports, they had an advertisement promoting Wimbledon Park as a transit destination with an image of strawberries and cream, a treat that’s also an iconic British dessert staple.

But not even England’s love of tradition can withstand its love of telling other people how to live their lives, so the advertisement had to be changed to remove the offending snack. London Mayor Sadiq Khan endorsed the ban, and now his own agencies are discovering the impacts are extensive.

That’s not all. Over at The Spectator, Christopher Snowdon, who has been criticizing the far-reaching government attempts to meddle with everybody’s food choices, tracked down more absurd tales of ads by London’s transit system that ran afoul of the “junk food” ban and had to be yanked and changed. The Wimbledon ad isn’t the only advertisement London’s own transit system had to alter. They had to remake an advertisement for their bus app because it had an image of a single cookie, which cost more than $6,000 (in U.S. dollars) to redo. A holiday ad featuring the moon dressed up to look like a Christmas pudding also had to have the cleverness removed to comply with the rules and turn back into a plain old inedible moon.

The Wimbledon strawberry dilemma was actually part of a much bigger internal advertising “problem” that Snowdon documented by getting records from London’s transit system about any compliance issues. It turns out that a bunch of maps for the London Underground (the subway) intended to illustrate to tourists what they could do at each stop was full of visual representations of food and drink. Because that’s what tourists do, right? But every single instance of food and drink represented on the map needed to be carefully vetted to make sure it complied with the junk food laws, and several images needed to be eliminated, even though it actually reduced the utility of the map for tourists.

Snowdon calculates that the cost incurred by the London transit system to comply with its own regulations added more than $20,000 U.S. dollars in fixes. While this seems like an unintended consequence of a poorly implemented policy, Snowdon thinks all these overly oppressive regulations are intended. He concludes:

These outcomes might be ridiculous but they are not accidental. They are what happens when fanaticism becomes normalised. This is how things are now.

That purging bus ad representations of iconic British foods is most certainly not going to fight obesity is irrelevant. The rules will be followed!

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There is a huge contradiction at the heart of Bernie Sanders’ Medicare for All plan.

On the one hand, Sanders not only wants to expand government-provided coverage to everyone in the country, he wants that coverage to be significantly more generous than Medicare, private insurance, or comparable government-run systems in other countries. On the other hand, he wants to drastically cut payments to hospitals, many of which lose money on Medicare right now, making up for the program’s relatively low payments by charging much higher prices to private insurers.

What Sanders is proposing, in other words, is that the government finance a significant increase in government services while also radically reducing the amount it pays for those services. Even making generous assumptions, it’s almost impossible to see how his plan could work.

Let’s start with the promises Sanders makes about Medicare for All. No networks, premiums, deductibles, or copayments. Under his plan, essentially all non-cosmetic services would be free at the point of care for everyone.

Under Medicare for All, Americans will no longer have to worry about:

-Networks
-Premiums
-Deductibles
-Copays
-Surprise bills
-Losing coverage

We are going to end the greed of insurance companies and put patients first.

— Bernie Sanders (@BernieSanders) April 19, 2019

Sanders calls this Medicare for All, but what he’s describing isn’t Medicare as we now know it. As The New York Times noted earlier this year upon the release of a Sanders-inspired Medicare for All bill in the House, the new program would “drastically reshape Medicare itself,” changing both what it pays for and how. In many ways, it would be a completely different program. Medicare for All, in other words, isn’t really Medicare.

And that program would be far more expansive and expensive than nearly any other comparable system. It would cover more, and require less direct financial outlays (not including taxes), than either today’s Medicare or typical private insurance plans in the U.S.

It would also be substantially more generous than the national health systems set up in other countries. Sanders likes to unfavorably contrast America’s mixed public-private health care system with foreign systems where the government is more directly involved. When he announced the 2017 version of his Medicare for All plan, for example, he bemoaned the state of affairs in the United States “a time when every other major country on earth guarantees health care to every man, woman, and child.” Discussions about health care policy on social media often include some variant of the question, “If every other country with a developed economy can do it, why can’t the United States?”

The problem with this line of questioning is that what Sanders is proposing isn’t what other countries do. Canada, for example, has a single-payer system, but it doesn’t cover dental care, vision, drugs, or any number of other services. A majority of Canadians carry private insurance in order to cover those services. In Britain, which offers a fully socialized medical system where health care providers are government employees, many resident still buy private coverage. Sanders, on the other hand, would effectively wipe out private coverage in the space of just four years.

There are similar limitations on coverage in other countries, like the Netherlands. It’s also true in Australia, where patients typically pay a percentage of the cost of specialty services. It’s true that in these countries, government plays a more central role in health care financing. But their systems have also reckoned with costs and tradeoffs in a way that Sanders, after so many years, has not.

Indeed, the main trade-off that Sanders seems willing to discuss is the elimination of insurance companies, which he portrays as greedy middlemen driving up the cost of health care. Wiping out the industry in one fell swoop, as Sanders has proposed, would be a unprecedented and disruptive move that would have significant economic repercussions, including the probable loss of thousands of insurance industry jobs. But it still wouldn’t do much to bring down the cost of health care, because so much money in the nation’s health care system is tied up in hospitals.

And therein lies the contradiction.

Most people probably think of hospitals as places where you go to get health care services. But politically and economically, they also fulfill another role: They are hubs for stable middle-class jobs, paying reasonably good wages to thousands of highly trained workers, most of whom are not doctors or specialists earning stratospheric salaries.

To acquire the revenue to pay for all these jobs, hospitals rely on a mix of private and public payments. Public payments make up a somewhat larger share of total hospital budgets, but private payers are typically charged much higher prices.

Hospitals like to argue that Medicare and Medicaid payments are too low to cover their costs, and that as a result, higher private payments effectively subsidize public health coverage. Critics (with some evidence) often respond that hospitals either overstate or don’t really understand their own costs, and that this is just a ploy to extract more money from government health programs and private payers.

But when considering Medicare for All, the particulars of this debate are largely beside the point, because there is simply no question that eliminating private insurance and payment for all services would drastically reduce the amount of revenue for hospitals.

Yet that is exactly what Sanders wants to do. His plan calls for paying for health care services at Medicare rates, which means that, practically overnight, hospitals would end up with far, far less revenue. Exactly how much is unclear, but one estimate indicated that payments could drop by as much as 40 percent.

That would leave hospitals with a couple of difficult choices. They could eliminate services. They could try to force some employees to take pay cuts. They could fire large numbers of workers. Or they could simply shut down. As a recent New York Times report on how Medicare for All would affect hospitals noted, rural hospitals—many of which are already struggling to stay afloat—would be particularly at risk of closing.

Whatever ended up happening, there is simply no way most hospitals would or could continue operating as they do now under the payment regime that Sanders envisions.

Yet Sanders not only imagines that hospitals would continue to operate as they do now, but that they would expand their services to even more people, since more people would have coverage. And since he also imagines a system with no deductibles or copays, those people would almost certainly end up dramatically increasing utilization of hospital services.

Studies of health insurance have consistently shown that expansions of health insurance result in increased demand for (and use of) health care services; more people with coverage means more people lining up to get care. (Relatedly, introducing even very small copays—on the order of just a few dollars—can reduce the number of visits to doctors and hospitals.) Greater utilization of health care services does not necessarily translate into measurably better physical health outcomes. But it does increase the strain on the health care delivery system—which is to say, it puts a huge amount of pressure on hospitals.

So what Sanders is proposing is a massive reduction in funding for health care services at the exact moment that the system experiences a massive increase in demand. It would be difficult to do either. Sanders wants to do both at the same time. 

It is a recipe for disaster—and a contradiction that Sanders has so far barely acknowledged, much less resolved.

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