Texas Lieutenant Governor Dan Patrick held a press conference today to respond to the Faculty Council of the University of Texas, which recently passed a resolution reemphasizing the importance of academic freedom at the university and denouncing political interventions in the university curriculum.
At the center of the dispute is the ongoing political fight over “critical race theory.” Republican-controlled state legislatures across the country have taken interest in how topics of race and social justice are taught and discussed in schools. The focus of the initial wave of lawmaking was on K-12 education, but the legislative cannons are now being aimed at colleges and universities. As I’ve written before, the bills are generally a sloppy mess that cause real problems for legitimate educational efforts.
Patrick is all too happy to escalate the fight. “Tenure, it’s time that that comes to an end in Texas.” Patrick likes to make bold declarations, but he is no backbencher who can be ignored. The lieutenant governor is arguably the most powerful political office in the Texas state government. Patrick is elected in his own right through a statewide ballot (he was reelected to the office in 2018), and he serves as the presiding officer of the state senate. In floating his proposal to end tenure, he claimed to have the support of the chair of the Senate Higher Education Committee and of university regents across the state (regents are appointed by the governor). Patrick declared that he wants to make an overhaul of state universities a “top priority” of the next legislative session, and he appears to be staking his future political ambitions on making professors into a punching bag.
Tenure has long been the cornerstone of academic freedom in American higher education. It is all well and good for universities to promise to recognize academic freedom, but it is the procedural protections and job security of tenure that make that promise meaningful. In practice, instructors and scholars without tenure protections are easily silenced and dismissed.
Texas will not be alone in reconsidering the future of tenure at public universities. The regents of the Georgia university system have already moved forward a proposal to weaken tenure protections. Regents and lawmakers in other states have similarly set their sights on tenure.
The prospects for academic freedom — and ultimately for creative scholarly research and quality teaching — will be dim in Texas and in other states if politicians like Patrick have their way. When I was growing up in Texas, the state bragged of its desire to construct world-class institutions. State politicians in recent years have largely abandoned that aspiration. It remains to be seen whether Texas will be able to preserve even a mediocre system of higher education in the years ahead.
As of yesterday, The New York Timesreports, every state that required people to wear face masks in public places and/or in schools during this winter’s COVID-19 surge has decided to lift those mandates, with the exception of Hawaii. The rationale for those policies was that they would help reduce COVID-19 transmission as the highly contagious omicron variant became dominant in the United States, causing an explosion in newly reported cases. Explaining the justification for lifting mask requirements, governors and public health agencies generally have cited the precipitous decline in daily new cases since mid-January. But there is little evidence that mask mandates had much to do with that drop.
Nationwide, according to the New York Timesdatabase, the seven-day average of daily new cases rose sharply from mid-December to January 17 and has fallen just as sharply since then, which is consistent with the experience in other countries after omicron emerged. The same basic pattern was seen in nearly every state. Overall, there is no obvious difference between states with mask mandates and states without them.
Ashish Jha, dean of Brown University’s School of Public Health, notes that the graph for California, which required masks in indoor public settings beginning on December 15, is “strikingly similar” to the graph for Florida, which had no mask mandates. He adds that the two states “had nearly identical infection rates.”
That second observation requires a caveat, since testing rates affect the number of cases that are recorded. California tested a larger share of its population at the peak of its omicron surge than Florida did, and Florida’s positivity rate was higher, which suggests that Florida missed a larger share of infections than California. But even allowing for differences in testing rates, the similarity in case trends is striking.
“At first blush,” Jha says, it “looks like their different COVID strategies did not end up mattering much.” But despite an official infection rate that was virtually the same as California’s, he adds, “Florida had 33% more deaths per capita than California” during the omicron surge.
If Florida’s case numbers understate the true number of infections more than California’s do, that could partially explain the difference in COVID-19 deaths per capita. So could age demographics: The median age of Florida’s population is 42.5, compared to 37 in California. Jha thinks vaccination rates are another important factor: While “only 59% of eligible Florida seniors have gotten boosted,” he notes, the rate for California is 70 percent.
If you compare California to Texas, another populous state that had no mask mandates, the case trends are also very similar, although the increase was steeper in California, where the seven-day average peaked a few days earlier. The graph for New York, which also had a statewide mask mandate, looks very much like the graph for California, but with an earlier peak.
“Masks have been the most visible part of America’s pandemic response, but one of the least consequential,” science journalist Faye Flam writes in a Bloomberg Opinion essay. “The states with mask mandates haven’t fared significantly better than the 35 states that didn’t impose them during the omicron wave. Rhode Island, where I live, has had a mask mandate since mid-December; nonetheless, we saw our January surge rise far higher than any other state. There’s little evidence that mask mandates are the primary reason the pandemic waves eventually fall—though much of the outrage over lifting mandates is based on that assumption. Many experts acknowledge that the rise and fall of waves is a bit of a mystery.”
Laboratory studies indicate that masks, especially N95 respirators, can help reduce virus transmission. But as Flam notes, “the benefits of universal masking have been difficult to quantify” in the real world, where cloth models predominate and masks may not be clean, well-fitted, or worn properly.
The strongest real-world evidence in favor of general masking comes from a randomized trial in Bangladesh, which found that the use of surgical masks reduced symptomatic infections by 11 percent. That’s not nothing, but it’s a pretty modest effect, and it was achieved with surgical masks worn by adults in conditions that encouraged proper and consistent use. The same study found that cloth masks did not have a statistically significant effect.
The Bangladesh study, in other words, does not demonstrate the effectiveness of the cloth masks that adults tend to pull out of their pockets when they enter businesses, let alone the masks that children as young as 2 are forced to wear in schools and day care centers. If you’ve seen pictures of those kids, you know they are not necessarily using masks as intended.
Beyond the question of how effective masking is in practice, there is the question of what impact mask mandates have on behavior. Even if masking works, that does not necessarily mean mandates do.
An Annals of Epidemiology study published last May found that mask mandates in the United States were associated with lower transmission rates from June through September 2020. “The probability of becoming a rapid riser county was 43% lower among counties that had statewide mask mandates at reopening,” the researchers reported. But the study did not take into account other policies or voluntary safeguards that may have differed between jurisdictions with and without mask mandates. Nor did it look at actual mask-wearing, as opposed to legal requirements.
Based on data from various countries and U.S. states from May to September 2020, a preprint study published last June found that general mask wearing was associated with a reduction in virus transmission. But the researchers found no clear relationship between mask mandates and mask use. “We do not find evidence that mandating mask-wearing reduces transmission,” the authors reported. “Our results suggest that mask-wearing is strongly affected by factors other than mandates.”
An August 2021 systematic review of 21 observational studies found that all of them “reported SARS-CoV-2 benefits” from mask mandates “in terms of reductions in either the incidence, hospitalization, or mortality, or a combination of these outcomes.” But “few studies assessed compliance to mask wearing policies or controlled for the possible influence of other preventive measures such as hand hygiene and physical distancing.”
Like the debate about lockdowns, the debate about mask mandates will continue. Because there are so many variables to account for, it is very difficult to isolate the impact of any given policy. But it seems clear that anyone who takes it for granted that mask mandates have played a crucial role in controlling the spread of COVID-19 is making a series of assumptions that are not justified by the evidence.
Carl Nelson and Amy Sterner Nelson’s pre-pandemic lives look a lot different than the ones they live now. There are the obvious ways, and then there are the not so obvious ways, like the fact that they sold their house and their car, liquidated their retirement funds, and moved their family of six from a comfortable West Seattle home to Amy’s sister’s basement after the FBI seized almost $1 million dollars from them in May 2020.
“We went from living a life where we were both working full-time to provide for our four daughters to really figuring out how we were going to make it month to month,” Amy tells me. “It’s completely changed my belief in fairness.”
The bureau took funds from nearly every corner of the Nelsons’ world, including, for instance, the savings Amy racked up from her decade as a practicing attorney and her later efforts as head of The Riveter, the co-working start-up she founded. But the FBI never even suspected Amy of committing any crime. It was Carl they were investigating—a probe that has not resulted in a single charge against him almost two years later.
In April 2020, agents showed up at the Nelsons’ home and informed them that Carl—a former real estate transaction manager for Amazon—was under investigation for allegedly depriving the tech behemoth of his “honest services.” In plainer terms, they accused him of showing favor to certain developers and securing them deals in exchange for illegal kickbacks. “That never happened and is exactly why I’ve fought as long and hard as I have,” he says. “It’s that simple.”
Whether or not the federal government has come to that conclusion is still a mystery; its years-long investigation into Carl’s alleged fraud has not yielded an indictment. Yet no such thing was necessary for the federal government to wreck the Nelsons’ lives, costing them their home, their community, their jobs, their girls’ place in their Seattle school, and their security for the future.
Perhaps more vexing: The FBI has, in some sense, subtly conceded that it didn’t need to do any of the above to complete their investigation or to hamstring any supposed criminal operation run by Carl. Last week, the government agreed to a settlement: Of the original approximately $892,000 it seized, the FBI will return $525,000, while Amy and Carl forfeit about $109,000. (The remaining sum has been depleted by court fees.)
“It’s hard,” says Amy, who is trying to recoup some lost assets via a GoFundMe. “Not much has changed for us.” She notes that Carl is still a defendant in a massive federal lawsuit against Amazon, and they accepted the deal so that they’d have money for attorneys’ fees. She adds that “it feels like the beginning of some justice.” In their case, justice looks like losing hundreds of thousands of dollars.
They’re not alone. There was the Indiana man whose car was seized. And the Kentucky man whose car was seized. And the Massachusetts woman whose car was seized. And the Louisiana man whose life savings were seized. And the Texas man whose life savings were seized. And the countless Californians whose money and random personal possessions were seized. Sometimes the money is returned—often only when a defendant manages to lawyer up for a civil suit. Sometimes only part of it is. Sometimes none of it is. “Civil forfeiture is quite common,” says Dan Alban, an attorney at the Institute for Justice (IJ), a public interest law firm that often litigates similar cases. “The fact that the government can do this can obviously ruin lives, and it can ruin lives without anyone being convicted of a crime, without anyone even being charged with a crime.”
Alban calls civil forfeiture a “high-pressure tactic.” It’s one of many the government uses, paralyzing defendants and sometimes stripping them of any ability to stick up for themselves. This is something Amy knows first-hand now. “If you can’t afford to defend yourself, let alone feed yourself,” she says, “it becomes complicated.”
It’s also lucrative. State, local, and federal governments have seized $68.8 billion via civil forfeiture over the last 20 years, according to a recent report by IJ. “The vast majority of seizures and forfeitures…are driven by the profit incentive,” says Alban. “In most states and at the federal level, police and prosecutors get to keep up to 100 percent of the proceeds. So they just have a very strong incentive to go out and seize whatever they can and try to forfeit it so that they can supplement their budget.” Those assets then find their way into police slush funds, where they may be spent on things like submachine guns, parking tickets, or cash withdrawals that no one seems to be able to explain. They’re also sometimes used illegally on things like gym equipment and Fitbits.
The forfeiture isn’t the only thing that the Nelsons feel they’ve lost, nor is it the only intimidation tactic they believe the government has used in an attempt to strong-arm Carl into buckling. During our conversation, the only time Amy cries is when recounting the months she spent waking up before sunrise, getting her four young daughters ready, and driving them an hour each morning to a faraway park. The reason: In the case that the government might make good on the criminal indictment they’d threatened, Carl asked if he could turn himself in so his daughters wouldn’t see the arrest. The government refused.
“Even talking to you now, Billy, now that we have our money back, now that the government has said, ‘We don’t believe these are the proceeds of a crime,” says Amy, “I am frightened of retaliation. I am frightened of saying anything. Because this is incredibly scary.”
Six teenage girls say they were forced to strip so school administrators could check them for vaping devices. Families of the teenagers—students at Suring High School in Wisconsin—have now retained a civil rights lawyer, after the local district attorney declined to bring criminal charges against Suring High officials.
In Wisconsin, it’s illegal for any official, employee, or agent of a school district to conduct a strip search of a student. School policy also specifies that this should not be done.
But District Attorney Edward D. Burke, Jr. said Tuesday he would not press charges against Superintendent Kelly Casper and the school nurse (both women) who made the girls disrobe, because Wisconsin law defines a strip search as requiring the exposure of genitals, pubic areas, breasts, or butts.
Burke said the girls were asked to strip down to their underwear and bras but not to take off their undergarments. Two students who weren’t wearing underwear were allowed to leave on leggings while officials patted down their legs. “One of the students was asked to pull her bra band away from her body, but her breasts were not exposed to Ms. Casper or the nurse,” Burke said in a statement.
One of the girls contradicts this account, however, telling police that she was made to reveal her breasts so they could check under her bra too.
Whether the search rises to the level of criminal antics, it still seems pretty ridiculous. Being forced to strip down to one’s underwear in front of others can be embarrassing and uncomfortable—especially for teenage girls, who aren’t exactly known for their comfort with their bodies—even without further exposure.
And regardless of how students feel about it, school officials shouldn’t have the right to make kids take off their clothes, period.
The whole thing is especially galling when you consider that the officials weren’t looking for a gun, a knife, or anything that may have posed an immediate safety threat. They made students strip out of concern that they might be vaping.
According to TCH Daily News, which first reported on the incident, the students were brought in for the searches after being caught vaping on school grounds. One parent told the paper that her daughter “was taken into a room and gave them her vape and the superintendent told her that she was going to strip search her anyway.”
School Board President Wayne Sleeter told FOX 11 that the board “needs time to gather and review documents” and will discuss the searches at a March 2 meeting.
Some of the girls’ parents told the Green Bay Press Gazette that they hired attorney Jeff Olson to represent them. “Olson said he plans to draft a settlement proposal and move on through litigation if a settlement isn’t reached,” the paper reported earlier today. “To my way of thinking, it’s hard to justify an intrusive search for an e-cigarette that you have already found,” Olson told Fox 11.
Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.
Bianca King of Lakeway, Texas, is a single mother with two young children. Until recently, she was able to raise her 2- and 4-year-old kids while making a living running a small daycare out of her home. But on February 9, city officials—citing concerns of a group of nearby golfers (including former mayor Joe Bain) that they could hear and see children playing in her backyard—shut her down. This week, she joined forces with the Institute for Justice to file a lawsuit in state court challenging Lakeway’s near total ban on running a home business. Learn more here.
Man in the Judiciary Square, D.C. Metro station falls into gap between waist-high parapet and station wall and ultimately dies of his injuries; his body is found four days later by a Metro rider. His family sues, claiming that had they done their job, Metro employees would have discovered him in time to save him. Metro: But he was drunk, meaning he was contributorily negligent, meaning we can’t be held liable. District court: Correct. D.C. Circuit: Decidedly not. Under D.C. law (which controls here), the Metro’s status as a common carrier means it can’t avail itself of the contributory-negligence doctrine. To trial the case must go.
In this First Circuit opinion about the First Step Act, an unusually subdued Judge Selya lobs only a few modest vocabulary grenados: “immurement,” for example, “paint the lily” (no, not “gild” it), and “monolithic.” (By the by, “monolithic” (as you probably know) derives from the Greek for “single stone”—hence the Village of Monolithos on the Island of Rhodes, named for the rock on which perches the Knights of St. John’s castle.)
Firearm-offense sentences can be enhanced if you’re an “unlawful user” of drugs at the time of your crime. And, says the First Circuit, “evidence of long-time regular use interrupted by periods of abstention” doesn’t fit the bill. So weed/gun enthusiast is entitled to a resentencing without the unlawful-user enhancement.
Twenty-six-year-old Honduran woman seeking asylum credibly alleges that when she lived in her native country, a gang member connected to a political opposition party physically and sexually abused her and her mother, stalked and raped her sister, and murdered her uncle. But, says the Fourth Circuit (over a dissent), she didn’t produce copies of her fingerprints in advance of her hearing before an immigration judge, so back to Honduras she goes.
The Fifth Circuit denies qualified immunity and explains its reasoning with a page of charts. Judge Oldham, dissenting, argues that case law requiring charts cannot be clearly established.
An auto-antonym is a word with two opposite meanings, such as “cleave” or “sanction.” Also, goat and G.O.A.T. are not the same thing in athletics. The point is: don’t confuse prudential standing with Article III standing. If you don’t have Article III standing, you’re done in federal court. But if you merely lack prudential standing, you might be ok. (So, per the Fifth Circuit, a mother’s federal suit for wrongful death can go forward if she amends to add the survivor with the right to sue under Louisiana law.)
In an unsigned order, the Fifth Circuit holds that United Airlines employees who have received religious exemptions from the company’s vaccination requirement would suffer irreparable harm if the policy is not preliminarily enjoined. And Judge Jerry Smith (dissenting) Is. Not. Having It.
Under Kentucky’s certificate-of-need regime, new home health agencies cannot open unless they prove their services are “needed,” which they must do in an administrative litigation against their would-be competitors. But do billion-dollar incumbents really need to be protected from entrepreneurs who might provide better services? Would allowing a startup to provide Nepali-language care to Louisville’s surprisingly sizable refugee population really make health care worse? Alas, it’s rational to think so, holds the Sixth Circuit. Yes, it’s “galling” to the plaintiffs. Yes, there’s “considerable evidence” of “pernicious effects.” And, yes, the entire rational-basis test might be an “overcorrection.” But you’d have to take that up with the Supreme Court. [This is an IJ case.]
Sartre said that Hell is “other people,” but the original French is better translated as “the Department of Labor’s Benefits Review Board.” And thus the Sisyphean saga of one Kentucky widow’s struggle to get black-lung benefits on behalf of her late coal-miner husband. After 17 years and four trips from an administrative judge to the board, the widow receives zilch. She then appeals the fourth appeal to the Sixth Circuit. Held: “poor customer service,” but no legal error. Because, hey, there was one issue that turned out to matter, and she didn’t raise it during the first appeal ten years ago.
If an ordinary litigant forfeits a non-jurisdictional argument, a court generally won’t consider it. If you’re the government, the court will raise the argument for you. So it is in this case out of the Sixth Circuit, in which the court holds that a criminal defendant had no Fourth Amendment standing to challenge the search of a car in which he was a passenger, and that it was perfectly all right for the trial court to raise that argument on its own.
Plaintiff files his claims one day after the statute of limitations runs out. BUT! The statute of limitations expired on a federal holiday, which means he filed on time as a matter of law. BUT! The plaintiff’s lawyer didn’t make that argument in the district court, even when the district court all but asked him to. BUT! The Eighth Circuit, invoking the age-old doctrine of “oh, for Pete’s sake,” says we should cut the guy a break. Case un-dismissed.
The thorny intellectual puzzle of what constitutes a “violent felony” for purposes of federal law has generated opinions wrestling with conundrums fit for a philosophy seminar. And it has generated this Eighth Circuit opinion, which finds that “attempted second degree murder” just super-duper obviously counts as “violent.”
At least eight times, plaintiff provided her employer with a doctor’s note requesting a different accommodation for an asserted disability. Each time, her employer accommodated her. The ninth time, when she neither submitted a doctor’s note nor asked for a specific accommodation, her employer did not accommodate her. How did her Americans with Disabilities Act claim against the employer fare in the Eighth Circuit? The answer may surprise you. (Unless you read those first three sentences. Then you can pretty much guess.)
Wherein the plaintiff loses his property because his house was on fire but also loses his case because the Eighth Circuit finds that, when he generated a list of the personal property he claims was destroyed, his pants were on fire.
If a property owner owes $15,000 in back taxes, can the government sell the property for $40,000 at auction and just pocket the profits? Apparently so, says this Eighth Circuit panel.
After suffering financial ruin while speculating on the rice market, Joshua Abraham Norton of San Francisco rechristened himself Norton I, Emperor of the United States and Protector of Mexico. When the beloved eccentric died in 1880, upwards of 10,000 people lined the street to pay him homage at his funeral. Somewhat less charming is Mark Rogers, the self-proclaimed Emperor of North America who in 1980 committed a triple murder and was arrested while hanging onto the luggage rack of a moving station wagon. Ninth Circuit: Nevertheless, he deserved a lawyer in his capital murder trial who was more than four months out from passing the bar.
In which the Ninth Circuit reminds us that Batson—much like his father—is rarely any help to criminals.
Champion Petfoods manufactures dog food that it advertises as “Biologically Appropriate,” “Trusted Everywhere,” and containing “Ingredients We Love [From] People We Trust.” Tenth Circuit: None of which can serve as the basis for a consumer class action.
“Generally, issues that are not raised in a party’s brief on appeal are considered abandoned.” Bet you can’t guess what happens next in this en banc ruling from the Eleventh Circuit (over a dissent), in which the government is trying to get evidence admitted against a criminal defendant.
Perhaps investors should have guessed that a combination of a new cryptocurrency and multi-level marketing was, in fact, a big old Ponzi scheme. But, per the Eleventh Circuit, the Ponzi schemers can’t escape liability by arguing that their online ads were targeted to the world at large, and not particular purchasers.
And in amicus brief news, IJ is asking the Third Circuit to allow a Temple University physics professor’s case against the federal gov’t to proceed. Falsely accused by an FBI agent of being a Chinese spy, plaintiff’s life was turned upside down for years. The brief argues that the district court was wrong to dismiss the case under the discretionary function exception to the Federal Tort Claims Act, as gov’t officials do not have the “discretion to violate the Constitution,” and that the district court was wrong to expand qualified immunity’s “clearly established” test into this new context.
Calling all Southern law students! Join us for an immersive and practical day of learning and connect with like-minded peers and industry experts. We are excited to offer an opportunity for law students to learn about practicing constitutional law from a public interest perspective during our upcoming Legal Intensive at UNC’s Friday Center on Saturday, March 26. The experts at IJ will lead interactive sessions throughout the day that are aimed at helping students learn and practice public interest law strategies, such as identifying constitutional litigation targets, framing cases, and advocating in the court of public opinion. Register by March 4 using this link: ij.org/students/ – space is limited so secure your spot soon!
In December, Dallas police officers at the city’s Love Field Airport seized a passenger’s luggage based on an alert from a drug dog. There were no drugs in the bag, but they did find more than $106,000 cash wrapped in bubble wrap. The police seized the cash through asset forfeiture, but would not elaborate further on why the cash was seized or what the traveler was suspected of.
Now, further information has been released, which raises additional questions about the police department’s story.
As Reasondetailed at the time, there is no law regarding how much money a person can carry on a domestic flight. But under civil asset forfeiture, a law enforcement agency need only allege that the cash could have been used for criminal activity. In Texas, the standard of proof for seizing someone’s cash or other property is simply a preponderance of the evidence, whereas to get the cash or property back, the owner would have to go to court to prove that they were not involved in criminal activity. Unless the property is returned, the police can keep a substantial portion of the proceeds.
This week, Dallas’ local CBS affiliate obtained the police report related to the incident, in which the officers explained why they chose to ultimately seize the cash. After the drug-sniffing dog alerted them to a suitcase, police determined that since the bag was “destined for a known source city [Chicago] for the exportation of narcotics,” then that was sufficient to search it. The detective conducting the search indicated “smelling the odor of marijuana,” though the cash and some packing material were the suitcase’s only contents.
Detectives located the traveler, a 25-year-old woman, and questioned her about the bag. They reported that she misidentified the suitcase as gray, rather than black, and that her description of the locking mechanism was inaccurate. They further asked if she was transporting cocaine, heroin, or methamphetamine, to which she answered that she was not. When they asked if she was transporting marijuana, according to the affiliate’s news story, “police noted she hesitated and her eyes darted to the left” before saying no. When they asked if she was carrying a lot of cash, she again hesitated and glanced to the left before saying that no, she had about $20,000, which she said was from the sale of a house, and some clothes.
On this basis, the police suspected that the cash could be “the result of the sales of illegal narcotics” and seized it.
What stands out in that description is the distinct absence of a crime. As stated, carrying large amounts of cash on a domestic flight is not illegal. While the bag may very well have smelled of marijuana, possession is perfectly legal in Illinois, where the traveler lives and was returning to. And the Dallas Police Department indicated, in the initial statement it provided to Reason in December, that the traveler was in Dallas on a layover, so even if she were engaging in drug trafficking, it would almost certainly have to have taken place wherever she had flown from.
Not to mention that once the detectives sat down with their suspect, the extent of her “suspicious behavior” was that she acted nervous, under-reported the amount of cash, and described the bag’s physical appearance inaccurately. Admittedly, this could be the behavior of a devious narcotics trafficker caught in the act—or it could just as easily be the mannerisms of a nervous young woman being interrogated by police in the airport of an unfamiliar city.
Singling out darting eye movements as criminally suspicious evokes the explanations New York City police officers would use to justify that department’s many “stop and frisk” encounters every year: Despite a minuscule number of searches ever turning up anything legally actionable, incident reports routinely accused the suspects of “furtive movements” or being in a “high crime area” to justify being accosted and searched.
Civil asset forfeiture, as currently practiced, is rife for abuse by police departments looking to pad their budgets. Luckily, this case has spurred some state and local authorities in Texas to look closer at possibly reforming the practice. When police are able to take someone’s property simply by claiming that it could be used for criminal purposes, there is clearly plenty of room for improvement.
Over the last year, several red states – in a trend begun by Montana – have adopted “gun sanctuary” laws that are in many ways modeled on immigration sanctuary laws previously enacted by liberal cities and states. Just as liberal immigration sanctuary jurisdictions restrict their employees’ cooperation with federal efforts to enforce immigration restrictions, so conservative gun sanctuaries similarly limit state and local assistance to federal agencies enforcing federal gun laws.
One reason why conservative states have copied liberals’ sanctuary policies is that the latter repeatedly prevailed in court against various Trump Administration attacks on them. I went over those cases in detail in a 2019 Texas Law Review article, and a piece for the Washington Post. Courts rightly ruled that the Constitution allows states to bar their officials from helping to enforce federal law.
Perhaps because of this history, the Biden Administration at first wisely left the conservative gun sanctuaries alone. This week, however, the Justice Department filed a dubious lawsuit challenging H.B. 85, the Missouri “Second Amendment Preservation Act.” The suit is reminiscent of the Trump Administration’s challenge to the California’s “Sanctuary State” law, which was largely rejected by the courts. The new Biden lawsuit deserves to lose for the same reason.
Reason’s Elizabeth Nolan Brown has a helpful overview of the Missouri law and the Justice Department lawsuit against it:
H.B. 85 says that Missouri rejects several categories of federal gun provisions, which it considers to be “infringements on the people’s right to keep and bear arms.” These provisions include “any tax, levy, fee, or stamp imposed on firearms, firearm accessories, or ammunition not common to all other goods and services,” “any registration or tracking of firearms, firearm accessories, or ammunition” or the ownership of them, “any act forbidding the possession, ownership, use, or transfer of a firearm, firearm accessory, or ammunition by law-abiding citizens,” and “any act ordering the confiscation of firearms, firearm accessories, or ammunition from law-abiding citizens.”
H.B. 85 orders state and local law enforcement not to cooperate with the feds to enforce such measures and says Missourians can sue if they do.
Another provision of the law bars any state or local agency from employing people who had previously helped enforce the federal gun laws in question, and imposes civil liability of up to $50,000 “per employee hired by the political subdivision or law enforcement agency.”
As the Ninth Circuit explained in its ruling in that case, the state sanctuary law “may well frustrate the federal government’s immigration enforcement efforts. However, whatever the wisdom of the underlying policy adopted by California, that frustration is permissible, because California has the right, pursuant to the anticommandeering rule, to refrain from assisting with federal efforts.”
Similarly, the Biden Justice Department complains that federal gun law enforcement efforts in Missouri have been hampered by H.B. 85 because “the Missouri State Highway Patrol has implemented H.B. 85 by withdrawing personnel from federal task forces and restricting the information that can be shared with federal authorities in connection with federal firearm offenses.” Restricting assistance and information-sharing by state law enforcement agencies is exactly what California did, and courts rightly ruled that such policies are protected by the anti-commandeering principle. What’s good for the liberal goose applies equally to the conservative gander!
The Biden DOJ tries to sidestep the anti-commandeering rule by claiming that H.B. 85 goes beyond merely denying assistance: “a state may not directly regulate federal authority. H.B. 85 does exactly that by purporting to nullify, interfere with, and discriminate against federal law.”
The nullification accusations were wrong then, and are equally wrong now. I explain why here, in a post about the Montana gun sanctuary law:
As understood by John C.Calhoun and others who sought to use nullification to protect slavery and other southern state interests in the 19th century, the term meant that the federal laws in question were null and void in their states. If the theory was correct, neither state nor federal authorities would have any right to enforce them. By contrast, liberal immigration sanctuaries and conservative gun sanctuaries are merely preventing their own state and local law enforcement agencies from helping the federal government enforce the laws in question. But the laws remain binding, and the federal government can still use its own resources to pursue violators. For example, federal ICE agents can still pursue undocumented immigrants in immigration sanctuaries, and federal ATF agents can still pursue people who violate federal gun laws in Montana.
Nothing in H.B. 85 prevents the federal government from using its own officials and resources to investigate and prosecute suspected violators of federal gun laws in Missouri. It’s true that HB 85 asserts that several types of federal gun laws violate the Constitution. But the law doesn’t instruct state officials to impede federal law enforcement efforts in any way, merely to refuse to assist them. More specifically, the law says that the five categories of federal gun regulations in question “shall be invalid to this state, shall not be recognized by this state, shall be specifically rejected by this state, and shall not be enforced by this state” (emphasis added). All of this simply imposes constraints on what the state government does, not federal officials.
The closest the Missouri law comes to actually restricting federal officials is in a provision that says “No entity or person, including any public officer or employee of this state or any political subdivision of this state, shall have the authority to enforce or attempt to enforce any federal acts, laws, executive orders, administrative orders, rules, regulations, statutes, or ordinances infringing on the right to keep and bear arms as described under section 1.420.” Read in the context of the rest of the law (which focuses entirely on the operations of state and local governments), I think this language should be interpreted as constraining state and local officials. But even if “[n]o entity or person” encompasses federal officials, the fact remains that nothing in the act in any way penalizes or obstructs federal employees seeking to enforce the laws in question.
Like the statement that some types of federal gun laws violate the Constitution, any restriction on federal employees here is purely aspirational. H.B. 85 doesn’t actually constrain them in any meaningful way. That said, a federal court could potentially rule that the “no entity or person” language is unconstitutional in so far as it applies to federal officials, while otherwise upholding H.B. 85. Such a ruling would make no practical difference to the operation of the law, but might relieve anxieties about “nullification.”
Finally, the Justice Department claims that the H.B. 85 provision barring state and local governments from hiring people who previously participated in the enforcement of the types of federal gun laws listed in the Act violates the doctrine of “intergovernmental immunity,” which which bars states from “discriminating” against the federal government or “those with whom it deals.”
This issue, too, came up in the California sanctuary state case. The Ninth Circuit ruled that intergovernmental immunity does not forbid a part of the California law that requires employers to notify workers of potential ICE raids:
The Supreme Court has clarified that a state “does not discriminate against the Federal Government and those with whom it deals unless it treats someone else better than it treats them.” Washington, 460 U.S. at 544–45. AB 450 does not treat the federal government worse than anyone else; indeed, it does not regulate federal operations at all. Accordingly, the district court correctly concluded that AB 450’s employee-notice provisions do not violate the doctrine of intergovernmental immunity.
The same reasoning applies here. The hiring-restriction provision of H.B. 85 also “does not regulate federal operations at all.” All it does is restrict state and local governments from hiring certain types of former federal employees. There is no discrimination impeding the actual performance of federal employees’ jobs. Indeed, any discrimination only occurs with respect to careers the latter may want to pursue after leaving federal employment.
I would add that, as in the California case, the concept of “discrimination” is only relevant in situations where the state treats the federal government and its agents worse than other similarly situated actors, simply because the former are employed by the federal government. As in the case of the ICE operations affected by the California law, there is no meaningful private-sector analogue to federal enforcement of gun laws, and thus no possible state discrimination against them.
However, I recognize that the district court ruling in the California case went the other way on this specific issue (I critiqued its reasoning here). Regardless, the court hearing the Missouri case need not even reach this question, because the Missouri law – unlike the relevant provision of the California one – doesn’t even target actual federal law enforcement operations: it merely restricts state and local government hiring of people who previously participated in them.
As with Trump-era efforts to attack immigration sanctuaries, the Missouri case has broader implications that go well beyond the specific laws at issue. If the Justice Department can force Missouri to assist federal gun law enforcement, it can commandeer states and localities, as well. And if Missouri is not allowed to refuse to hire former federal gun-law enforcers, other states will not be able to bar former federal employees whose law-enforcement activities they find abhorrent. Imagine, for example, a liberal state that refuses to hire former Department of Homeland Security employees complicit in the Trump Administration’s cruel immigration enforcement policies, such as child separation.
It is worth emphasizing that all of the points made above apply regardless of whether the federal gun laws listed in H.B. 85 violate the Second Amendment or not. Even if these laws are entirely constitutional, so far as the Second Amendment is concerned, the federal government still can’t commandeer states to help enforce them.
In sum, the Biden lawsuit against Missouri is just as ill-conceived as various Trump administration suits against blue immigration sanctuaries, and deserves to fail for the same reasons. Liberals who (rightly, in my view) supported immigration sanctuaries should think about what might happen to them in the next Republican administration, should the Biden Administration prevail in the Missouri case.
In the long run, it’s a good bet that NBC’s new crime drama The Endgame is going to prove infuriatingly terrible. But for now, it’s electrifying. It’s the crack of television, except you don’t need a pipe, just a remote. Start watching, and you won’t be able to stop, until probably a few months down the road, when you rise from your couch in a dizzy stupor, your lips cracked, your kidneys corroded and your mind reeling with a strange desire to stuff that remote into a maximally painful bodily orifice of an NBC executive.
The Endgame has a frightening resemblance to Lost, or Fringe, or Manifest. To be clear, though, it’s not science fiction that’s liable to drift into time travel, alternate world, or the other scoundrel tools of lazy screenwriters. (Nor, for that matter, does it have anything to do with enigmatically vanished airliners, a thread I just notice runs through all these shows. Remind me not watch that summer series about Amelia Earhart and the space weasels.)
But the frenzied speed with which The Endgame moves and the mystery at its center that excuses a lot of illogical and fallacious plot points is very reminiscent of the weird stuff that popped up in those other shows: “Omigod, did Sawyer just kill a polar bear? What’s a polar bear doing in the middle of a tropical Pacific island? I can’t wait to find out what’s going on!” Except you never did. All those Barnum & Bailey gimmicks were just throw-ins by screenwriters who wanted to get their show on the road but hadn’t mapped out their final destination before they started shooting—and pretty much never did.
But, as every junkie ever said, that’s for tomorrow. Right now, The Endgame is a crackerjack of a caper show, a tautly edited blend of action and wit that blows along like a runaway train. We can worry later about whether it will arrive in Chicago or Mars.
The Endgame is essentially a standoff between two female nemeses. Elena Federova (Morena Baccarin), a Ukrainian arms dealer of mythically ruthless reputation, is locked up—without, it seems, a warrant or any of that bothersome technical stuff—in an underground Homeland Security detention center on Long Island. The feds intend to question her about a list of stuff longer, and much nastier, than the one Santa Claus carries on Christmas Eve. “No one knows you’re here,” an FBI boss smugly informs her, “and we’ve got plenty of time.”
The cops hand Federova a legal pad and tell her to start listing all the names of all her criminal contacts. She dutifully begins writing, but her wiseguy smile suggests she’s up to something else. Within minutes, reports of violent New York City bank takeovers—seven, in all—start rolling in, with all signs pointing to Federova as the intellectual author.
The feds reluctantly counter by bringing in FBI agent Val Turner (Ryan Michelle Bathe), a hard-ass agent who’s had some success against Federova but is currently in disfavor—to put it mildly—after her husband, another FBI agent, was caught taking money from a Colombian drug cartel.
Watching the clash between the two women is epically entertaining. Federova is all smug, taunting smiles as she unveils a criminal option of uncertain aim but exquisite planning. Turner is a study in a relentless rage against anybody she perceives as a bad guy, an obsession rage that has warped her almost beyond human recognition. She busted her own husband in the drug cartel case.
Turner, unlike her bosses, instinctively grasps that what’s going is about much more than emptying bank vaults—but can’t figure out what that is. When she disobeys orders to anticipate some of Federova’s moves, she’s always just moments too late—and her fury is only fueled by the little Post-It notes left by Federova’s minions with the barbed message “YOU WERE RIGHT.” An air of moral ambiguity creeps into the plot when Federova deliberately lets slip that she’s being aided by official corruption. Who really are the good guys in this struggle?
Baccarin, who played the pretty space-alien lizard with a taste for human flesh in the 2009 version of V and the conflicted wife of an Al Queda mole in Homeland Security, gives an entertainingly over-the-top performance as the criminal mastermind. My favorite of her many moments came in a flashback scene where she’s lying naked in a pastoral meadow, entwined with a lover. Suddenly bells sound. Murmurs she: “We’re going to miss our wedding.”
But it’s also worth keeping in mind that nothing in The Endgame is meaningless or played simply for laughs. “There’s always another layer, isn’t there?” Turner asks Federova in an unguarded moment where a kind of grudging admiration for her foe is creeping through. Replies the arms trafficker: “Always.” Let’s just hope it doesn’t turn out to be an alternate universe or a time machine.
At his family’s oyster farm on Mont-Saint-Michel Bay in Brittany, France, Stephan Alleaume supervises his workers as they prepare their famous Saint Kerber oysters for shipment around the world. Boxes of the famed Tsarkayas and Speciales are destined for Germany, Singapore, Vietnam, Cameroon, Martinique, and Dubai. Even French Polynesia can’t get enough of these Japanese oysters raised in the cool waters of Northern Europe. They are shipped to all of the world’s best restaurants—except ones in the United States.
Since 2010, a trade barrier has prevented European oysters, clams, and mollusks from coming to American shores. It also prevents Europeans from importing shellfish grown in the U.S. That means no French oysters at the Four Seasons in Chicago, the Ritz-Carlton in Miami, or any other venue where patrons would shell out top dollar for the bivalves that sustained Roman emperors, Russian czars, and Marie Antionette.
“We are already ready to start shipping,” Alleaume told me in 2016. “And they, the Americans, they are ready to sell us their oysters.”
Alleaume’s wait may soon be over. In early February, the European Union (E.U.) and the U.S. agreed to end the trade ban as a gradual process slated to start at the end of this month.
Until 2010, shellfish purveyors enjoyed a fairly robust trade across the pond. Farms in Washington state, Rhode Island, and Massachusetts sent millions of pounds of clams to Spain—where they’re a staple in paella.
The trade barrier started because of a difference in how the E.U. and the U.S. tested their shellfish. The E.U. tested the actual shellfish while American regulators tested the water in which the shellfish grew. Worrying that E.U. oysters could bring norovirus and other pathogens to the U.S. that were present in their waters, the U.S. Food and Drug Administration (FDA) banned all E.U. shellfish. And European regulators returned the favor.
Since then, shellfish growers on both sides of the Atlantic have been working with trade representatives to resolve the situation. Delicate negotiations led to audits in 2015, when the FDA and the E.U. recommended that the food safety systems be considered equivalent (though the waters the shellfish come from would still need to be classified as free of sewage runoff). But it takes longer for bureaucrats to move than for oysters to grow: It wasn’t until this year that the officials finally approved the recommendation.
The shellfish industry evolved significantly since the ban was introduced over a decade ago. France grappled with major mortalities because of a parasite brought in from Australia, likely from ballast water in ships. Luckily, growers Down Under have finally learned to cultivate disease-resistant strains. In the Chesapeake Bay, new laws allowed an aquaculture industry to thrive in Maryland, while Virginia growers and scientists made innovations in breeding that created a more parasite-resistant organism.
COVID-19 devastated oyster farms—burgers are a much more popular takeoutitem than raw oysters customers had to shuck at home instead of enjoying in high-end restaurants. But Robert Rheault, executive director of the East Coast Shellfish Growers Association, says the industry has bounced back to the point where those European markets may have to wait a year or so for the oysters planted now to grow—many farms are currently out of stock.
Not all the bivalves will be allowed to move immediately either. At first, just Massachusetts and Washington state will be able to send their shellfish to Europe while just Spain and the Netherlands will start shipping theirs to the U.S. If all goes according to plan, the floodgates will open for a full shellfish trade.
“We have been assured that the process for adding countries and states is going to be regular, and not the 12 years we have been waiting for approval from the FDA,” says Rheault, who has been involved in the decade-long negotiations. Rheault acknowledges that the FDA’s ability to act quickly is “greatly in question.” But he remains optimistic, especially since luxury-good prices are rising. Oysters, exotic and creamy, have maintained their “food of the gods” reputation.
The European market will be a boon to American oyster farmers because demand is highest there in the Christmas season, a time when farmed oysters have to compete with the wild harvest at the market. And in France, Alleaume says the freer market is not going to make or break his business. “On both sides, there is going to be a niche market,” Alleaume says. “But you can live with a niche market.”
The Coachella Valley Music and Arts Festival announced on its website this week that it will not require attendees to wear masks or provide vaccine cards or a negative COVID-19 test to attend its two-weekend outdoor music festival in April. The announcement marks the end of a series of policies for Coachella that never made much sense given low rates of outdoor COVID-19 transmission.
Coachella has been on a two-year hiatus since the spring of 2020. Anschutz Entertainment Group (AEG), which owns the festival, released astatement in August 2021 announcing a vaccination mandate for all of its live music events. In October 2021, Coachella surprised the public byrescinding the vaccination mandate and declaring that it would instead require either proof of full vaccination or a negative COVID-19 test conducted 72 hours before the event. Now, all restrictions are off.
The same is true for the Stagecoach Festival, a country music event also under the AEG umbrella,which announced on its website that it would drop COVID-related health precautions. Given that country music tends to appeal to a more conservative audience, canceling the mandate was crucial for bolstering attendance, especially after country star Travis Tritt last Octobercanceled events that required proof of vaccination or masks.
COVID-19case rates are declining across the country. Virus positivity rates have dropped 68 percent in the past 14 days, according to data reported by The New York Times.
Last summer, Lollapalooza decided to hold itsfestival despite concerns that it could lead to a spike in COVID-19 cases. No such outbreak materialized, which should not have been a surprise as data have shown that COVID-19 does not spread easily inoutdoor settings.
Coachella’s announcement is cause for celebration, especially for Americans seeking a respite from excessive and scientifically dubious restrictions on their lives.
A Januarypoll from Echelon Insights showed that a majority of Americans believed that COVID-19 should be treated like an endemic virus such as the flu rather than as a perpetual emergency. Doing so would allow us to more or less live life normally without the threat of events shutting down.
