Tag: in-the-news

The Jewish Week reports:

Is the social work school at Hunter College coddling antisemitism, or is it part of an institution that’s deeply committed to protecting Jews from prejudice?

That question has come to the fore after a pro-Israel organization filed a federal complaint alleging a “pervasively hostile campus climate for Jewish students” at the New York City school and its Silberman School of Social Work, in particular.

I have no personal knowledge of the situation at Hunter College, but this is not reassuring:

A student leader told The Jewish Week that while she doesn’t feel targeted by overt antisemitism on campus, Jewish students often feel uncomfortable sharing their opinions on Israel for fear of drawing backlash, and that, at times, anti-Israel rhetoric does veer into antisemitism.

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In a 7-4 decision today from an 11-judge en banc panel of the U.S. Court of Appeals for the 9th Circuit, California’s 2016 ban on magazines that hold more than 10 rounds was found constitutional, despite earlier conclusions from a lower court and a three-judge panel of the 9th Circuit that the ban violated the Second Amendment.

“Under the Second Amendment, intermediate scrutiny applies, and [the ban] is a reasonable fit for the important government interest of reducing gun violence,” Judge Susan Graber wrote for the majority today in Duncan v. Bonta. “The statute outlaws no weapon, but only limits the size of the magazine that may be used with firearms, and the record demonstrates (a) that the limitation interferes only minimally with the core right of self-defense, as there is no evidence that anyone ever has been unable to defend his or her home and family due to the lack of a large-capacity magazine; and (b) that the limitation saves lives.”

She added: “In the past half-century, large-capacity magazines have been used in about three-quarters of gun massacres with 10 or more deaths and in 100 percent of gun massacres with 20 or more deaths, and more than twice as many people have been killed or injured in mass shootings that involved a large-capacity magazine as compared with mass shootings that involved a smaller-capacity magazine.”

“Accordingly,” Graber concluded, “the ban on legal possession of large-capacity magazines reasonably supports California’s effort to reduce the devastating damage wrought by mass shootings.”

Graber’s decision also denied the ban of such magazines constituted an unconstitutional taking of property without compensation, since owners of the now-illegal magazines can “modify or sell their nonconforming magazines” and thus “the law does not deprive owners of all economic use.”

Writing in dissent, Circuit Judge Patrick Bonabay complains that by use of “intermediate scrutiny” the 9th Circuit ensures that “so long as a firearms regulation aims to achieve a conceivably wise policy measure, the Second Amendment won’t stand in its way. In effect, this means we simply give a blank check to lawmakers to infringe on the Second Amendment right. Indeed, post-Heller, we have never struck down a single firearms regulation.”

The “manufacture, importation, or sale” of high-capacity magazines has been illegal in California since 2000. Possessing ones you already owned, though, had remained legal until the 2016 passage of Proposition 63, which “imposed a possible criminal penalty of imprisonment for up to a year for unlawful possession of large-capacity magazines.”

Thanks to today’s decision, the state is now free to enforce its ban on magazines holding more than 10 rounds. (The ban had been blocked from going into effect while the case played out in court.) As is often the case with gun control laws, current or retired police officers, our special centurion class, are not subject to the law.

Recent history shows that it is very hard indeed to get citizens who see themselves as peacefully possessing formerly legal items to cooperate when the state seeks to take those items from them. In other words, thanks to today’s 9th Circuit decision, expect more police harassment of fundamentally innocent gun owners and all of the collateral damage that such police actions invariably will cause. The end result will not be a safer California.

 

Scrutinizing Scrutiny

Contra Graber’s decision, that “intermediate scrutiny” is how the Second Amendment should be dealt with might be 9th Circuit practice, but it is not settled Supreme Court doctrine. Indeed, in this very decision the 9th Circuit challenges the Supreme Court to tell them very explicitly if that Court thinks the 9th Circuit is misapplying its standard of scrutiny to the Second Amendment.

For those who like to imagine “shall make no law” settles the issue, the whole question of “scrutiny” might seem a deliberately confusing mess. But the 9th Circuit sees meaningful distinctions to be made, which it explains thusly: “Strict scrutiny applies only to laws that both implicate a core Second Amendment right and place a substantial burden on that right” while “Intermediate scrutiny applies to laws that either do not implicate a core Second Amendment right or do not place a substantial burden on that right.”

As to what the different terms actually mean in judicial practice, strict scrutiny requires that a law indicates “both narrow tailoring to a compelling governmental interest and the use of the least restrictive means.” Intermediate scrutiny, for its part, merely requires that a law shows “a reasonable fit with an important governmental interest.”

The core of the Second Amendment right as the 9th Circuit reads the 2008 Heller decision is about self-defense in the home. And in their judgment, the magazine ban “imposes only a small burden on the Second Amendment right and that, accordingly, intermediate scrutiny is the appropriate lens.”

The Court basically thinks that the imposition on the Second Amendment right by this law is just not a very big deal, in colloquial terms. As the decision today says, “The ban on large-capacity magazines has the sole practical effect of requiring shooters to pause for a few seconds after firing ten bullets, to reload or to replace the spent magazine. Nothing in the record suggests that the restriction imposes any more than a minimal burden on the Second Amendment right to keep and bear arms.”

Graber did not find real-world evidence that self-defense in the home requires the use of the now-banned magazines, thus she concluded the magazine ban did not impact the right in its most important aspect. The plaintiffs tried to argue, calling on the Heller decision’s reliance in places on how commonly used a weapon might be, that the fact at least half of American magazine buyers choose the kind California is banning shows it is a weapon element deserving of Second Amendment protection; Graber did not think that mattered.

The 9th Circuit’s decision asserts that the state obviously has a compelling and important interest in trying to make some mass shootings potentially less lethal by restricting magazine size. The decision also insists that the law does not substantially damage the Second Amendment’s core self-defense-in-the-home purpose. Thus, their “intermediate scrutiny” analysis leads to the conclusion the law is perfectly constitutional.

In the dissent from Judge Bumatay, he insists the majority got it wrong from the start; any sort of “scrutiny” analysis is not the way the Supreme Court wants them approaching the Second Amendment.

Bumatay looks back to Heller, the beginning of modern Second Amendment jurisprudence, for clues as to the right way to judge laws that implicate the Second Amendment. What courts, including his own 9th Circuit, should do is perform “an extensive analysis of the text, tradition, and history of the Second Amendment. Our court should have dispensed with our interest-balancing approach and hewed to what the Supreme Court told us to do.”

Had they done that, Bombatay insists the 9th Circuit would have come to the opposite conclusion to today’s majority decision from Graber. As Bombatay points out, “Firearms and magazines capable of firing more than ten rounds have existed since before the Founding of the nation. They enjoyed widespread use throughout the nineteenth and twentieth centuries. They number in the millions in the country today. With no longstanding prohibitions against them, large-capacity magazines are thus entitled to the Second Amendment’s protection.”

The magazines the state banned “are lawfully owned by millions of people nationwide and come standard on the most popular firearms sold today” and “the Constitution protects the right of law-abiding citizens to keep and bear arms typically possessed for lawful purposes.” Thus, the 9th Circuit should have kept the magazine ban buried.

Bumatay sees the 9th Circuit’s scrutiny analysis as “nothing more than a black box used by judges to uphold favored laws and strike down disfavored ones.” That method has never been how the Supreme Court intended lower courts to do Second Amendment jurisprudence, he insists, and he quotes various Supreme Court justices to support this belief.

One of the sharpest such quotes was from Justice Clarence Thomas, who wrote in a 2020 dissent from a denial of certiorari in the case of Grewal v. Rogers that Heller “explicitly rejected the invitation to evaluate Second Amendment challenges under an ‘interest balancing inquiry, with the interests protected by the Second Amendment on one side and the governmental public-safety concerns on the other.'”

Circuit Judge Lawrence VanDyke in a saltier separate dissent says that the 9th Circuit is driven “by a single-minded focus on ensuring that any panel opinions actually enforcing the Second Amendment are quickly reversed. The majority of our court distrusts gun owners and thinks the Second Amendment is a vestigial organ of their living constitution. Those views drive this circuit’s caselaw ignoring the original meaning of the Second Amendment and fully exploiting the discretion inherent in the Supreme Court’s cases to make certain that no government regulation ever fails our laughably ‘heightened’ Second Amendment scrutiny.”

 

 

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On November 18, a federal district court issued a ruling indicating that the Takings Clause of the Fifth Amendment may require the government to pay compensation in a case where a police SWAT team destroyed an innocent person’s home in the process of pursuing a criminal suspect. As Judge Amos Mazzant recognizes in his opinion in Baker v. McKinney, this ruling is at odds with decisions in similar cases by some other federal courts, which hold that there cannot be takings liability in such cases because of the “police power” exception to the Takings Clause. The issue here is an extremely important one, one on which existing jurisprudence is far from a model of clarity. As the case goes forward, it might end up setting a significant precedent.

Reason’s Bill Binion has a helpful summary of the disturbing facts of the case:

In July 2020, Wesley Little—who Vicki Baker had terminated as her handyman about a year and a half prior—arrived at Baker’s home in McKinney, Texas. Baker’s daughter answered. Recognizing him from news reports that he was wanted for the abduction of a 15-year-old girl, she left the premises and called the police.

SWAT agents soon arrived. They set off explosives to open the garage entryway, detonated tear gas grenades inside the building, ran over Baker’s fence with an armored vehicle, and ripped off her front door, despite being given a garage door opener, a code to the back gate, and a key to the home. The house was unlivable when they were through….

“In its pursuit of the fugitive and pursuant to its police powers, Baker alleges the City caused significant economic damage—over $50,000—to her home. Then, the City refused to compensate her for the damage,” writes Judge Amos L. Mazzant III of the U.S. District Court for the Eastern District of Texas…..

Baker will likely still have to overcome an appeal from the city. But if her suit meets a more fortunate fate, she may recuperate some of the financial costs incurred as she battles stage 3 cancer and tries to leave the state for retirement. Yet some things will not be replaceable. An antique doll collection was damaged by tear gas, for example. Worse yet, her daughter’s dog was left deaf and blind.

“I’ve lost everything,” Baker told Reason last March. “I’ve lost my chance to sell my house. I’ve lost my chance to retire without fear of how I’m going to make my regular bills.”

Some of these aggressive tactics may have been understandable, given that Little was holding a 15-year-old girl against her will, and that he was believed to be armed. But, as Judge Mazzant recounts in his ruling, by the time the SWAT team  “forcefully entered
the home by breaking down both the front and garage door and running over the backyard fence with a tank-like vehicle known as a BearCat,” Little had already released the girl unharmed. When the police entered the house, they found he had taken his own life.

The Fifth Amendment says  the government must pay “just compensation” whenever it takes private property for public use. Courts have long held that deliberate destruction of private property by government officials counts as a taking. As far back as 1872, the Supreme Court ruled that “where real estate is actually invaded by superinduced additions of water, earth, sand, or other material . . . so as to effectually destroy or impair its usefulness, it is a taking, within the meaning of the Constitution.” You don’t have to be a takings scholar to see that Vicki Baker’s house was “effectually destroy[ed] or impair[ed] [in] its usefulness,” and that the police deliberately caused the damage.

However, courts have also long held that at least some exercises of the “police power” (government’s authority to protect public health and safety) are exempt from takings liability. In the 2019 case of Lech v. Jackson, the US Court of Appeals for the Tenth Circuit used the police power theory to deny takings liability in a situation remarkably similar to this one. There, too, the police essentially destroyed an innocent family’s house in the process of trying to apprehend a suspect (in that instance, a suspected shoplifter).

Judge Mazzant’s opinion suggests – correctly, in my view – that the reasoning of Lech is wrong, and that it isn’t binding on his court (which is in the Fifth Circuit, not the Tenth):

The City asks this Court to adopt what would constitute a per se rule—that destruction to private property resulting from the exercise of valid police power cannot constitute a Fifth Amendment Taking. Neither the Supreme Court nor the Fifth Circuit have directly found a taking that requires just compensation when destruction of property results from the exercise of valid  police power. The City correctly points out that other circuits have foreclosed recovery under similar circumstances. See Manitowoc Cty., 635 F.3d 331; Lech, 791 F. App’x. 711; AmeriSource Corp., 525 F.3d 1149.

However, both the Fifth Circuit and the Supreme Court have suggested such action could amount to a taking. In John Corp. v. City of Houston, the Fifth Circuit asserted that “a distinction between the use of police powers and of eminent domain power . . . cannot carry the day” when assessing whether a taking has occurred. 214 F.3d at 578–79. Further “[t]he Supreme Court’s entire ‘regulatory takings’ law is premised on the notion that a city’s exercise of its police powers can go  too far, and if it does, there has been a taking.” Id.(citing Penn. Coal Co. v. Mahon, 260 U.S. 393,  415 (1922)). In Lucas v. S.C. Coastal Council, the Supreme Court opined that if “the uses of private property were subject to unbridled, uncompensated qualification under the police power, the natural tendency of human nature would be to extend the qualification more and more until at last private property disappeared.” 505 U.S. 1003, 1014 (1992)….

The Court finds the Fifth Circuit and Supreme Court reasoning persuasive, particularly at this stage of litigation where it construes allegations in the light most favorable to Baker. At the motion to dismiss stage, it would be imprudent to foreclose Baker’s ability to recover based on the shaky reasoning recited in non-binding cases from other circuits—especially when both the Fifth Circuit and the Supreme Court have alluded that a taking could result from destructive police power. Because Baker has plausibly alleged the City’s destruction of her home resulting from the exercise of its police power could amount to a taking, the Court continues its takings analysis….

While the Court acknowledges that governmental bodies are not “liable under
the Just Compensation Clause to property owners every time policemen break down the doors of buildings to foil burglars thought to be inside[,]” Nat’l Bd. of Young Men’s Christian Ass’ns v. United States, 395 U.S. 85, 92 (1969) (emphasis added), Baker has alleged damage to her private property—and the City’s refusal to compensate for such damage—that plausibly amounts to a Fifth Amendment violation.

I think Judge Mazzant is absolutely right that the police power does not create a blank-check exemption from takings liability. Nor is there a blank check for law-enforcement operations specifically. I outlined some of the reasons why in my critique of the Lech decision and in an amicus brief in which the Cato Institute and I unsuccessfully urged the Supreme Court to review and overrule Lech. Among other things, I pointed out that the Takings Clause was enacted in the first place in part as a reaction against the depredations of British troops during the colonial era and Revolutionary War. Many of these seizures and occupations of property were, of course,  undertaken for the purpose of enforcing various British laws against recalcitrant colonists.

More recently, in December 2019, the Court of Federal Claims ruled that the police power exception does not foreclose takings liability in a case where the Army Corps of Engineers deliberately flooded large parts of Houston in order to prevent potentially worse flooding elsewhere during Hurricane Harvey in 2017.

Judge Mazzant’s ruling doesn’t definitively resolve the case. It merely rejects the City’s motion to dismiss, allowing Baker to move forward with her claim. The decision also doesn’t establish a clear standard for when destructive law-enforcement operations qualify as takings. For the moment, the court only rejects the theory (endorsed in cases like Lech) that such operations enjoy a virtually categorical exemption.

Even this preliminary ruling is likely to be appealed. Thus, this ruling is just the beginning of what may be a prolonged legal battle. But it’s a legal battle that bears watching. The status of the police power exemption to takings is a major issue for a wide range of government policies, including deliberate flooding of private land (as in the Houston case), Covid-19 shutdowns, and (as in this case) law enforcement operations.

Finally, it’s worth noting that, regardless of the legal issues, a just government would accept that it has a moral obligation to pay compensation in cases like this one. After all, its agents have deliberately inflicted enormous harm on an innocent homeowner. Even if they do so for a good purpose (catching a dangerous criminal), basic justice and fairness demand that the cost be borne by the general public who benefit from his capture, not arbitrarily concentrated on one person, who did no wrong.

Sadly, however, governments are often blind to the demands of justice. That’s one of the reasons why we need constitutional rights.

NOTE: The plaintiff in this case is represented by the Institute for Justice, a public interest law firm with which I have longstanding connections, including working there as a summer clerk when I was in law school, and writing multiple pro bono amicus briefs on their behalf. I do not, however, have any involvement in the present case. IJ has issued a  statement on Judge Mazzant’s ruling, available here.

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New York City is giving its blessing to safe consumption sites where intravenous drug users will be able to inject without fear of arrest and with the knowledge that medical professionals will respond in cases of overdose. These sites will be the first publicly funded facilities of their kind to operate in the United States. 

Outgoing Mayor Bill de Blasio and the city’s Health Department announced the move this morning. The consumption sites will be found at locations where needle exchange services are already provided by nonprofit groups. Sites in East Harlem and Washington Heights are set to open their doors to users as early as today. They will provide clean needles to users while staff will be on hand to administer naloxone, a drug used to reverse opioid overdoses. Users will have to provide their own illegal drugs.

New York City will not be running the consumption centers. Instead, the two nonprofits who currently run the needle injection programs have joined up to form an organization named OnPoint NYC, which will also run the safe consumption sites. These nonprofits receive city funding.

Safe consumption sites (also called safe injection sites) have been operating in Canada and Australia for years. While New York City will be the first U.S. city to offer these services, San Francisco, Seattle, and Philadelphia also have plans in the works. All of these cities have seen increasing rates of public use of injected drugs such as heroin, as well as high rates of overdoses and overdose deaths. New York City reported more than 2,000 drug overdose deaths in 2020. The United States as a whole has also seen a record number of overdose deaths—more than 93,000 for 2020.

Given such numbers, safe consumption sites are a necessary and long-overdue harm reduction measure, properly focused on keeping drug users alive rather than on waging a punitive and failed drug war. The American Medical Association supports the use of safe consumption sites, noting earlier this year that not a single overdose death has been reported in the 120 safe consumption sites operating elsewhere in the world. That is precisely because health professionals at those sites are prepared to respond to emergencies.

Unfortunately, U.S. drug laws have made it difficult to open similar sites here. Section 856 of the federal Controlled Substances Act makes it a felony to knowingly allow a space to be used for the purpose of consuming drugs. This law was crafted in 1986 to shut down so-called “crack houses,” but when Philadelphia allowed nonprofit Safehouse to open a safe consumption site in that city in 2019, U.S. Attorney William McSwain of the Eastern District of Philadelphia invoked federal law to stop the site from opening. Judge Gerald Austin McHugh of the U.S. District Court for the Eastern District of Pennsylvania initially took Safehouse’s side and said the text of Section 856 did not forbid city-approved, medically monitored consumption sites. But that ruling was reversed by the U.S. Court of Appeals for the 3rd Circuit, which held that federal law did prohibit sites like the one operated by Safehouse. In October, the U.S. Supreme Court declined to take up the case. The Safehouse site has not opened.

So while New York City is now funding safe injection sites (incoming mayor Eric Adams is on the record supporting them) there’s still the question of what the federal government might do in response. The New York Times reports that while the Biden administration has taken a position in support of harm reduction methods to prevent drug deaths, it has not endorsed safe injection sites. New York City Health Commissioner Dave Chokshi told the Times that the city has had “productive conversations” with the Biden administration and believes the federal government won’t attempt to interfere.

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The office of New York’s attorney general released thousands of pages of testimony relating to the sexual harassment allegations against former Gov. Andrew Cuomo, and the new information makes it abundantly clear that CNN host Chris Cuomo involved himself in his brother’s efforts to survive public scrutiny. Contrary to Chris Cuomo’s claim that he did not act as an official advisor to his brother, the documents reveal that he actively used his journalistic access and connections to find out more information about the accusers—and potentially, to discredit them.

Chris texted his brother’s long-serving handler, Melissa DeRosa, about one of the accusers, saying, “I have a lead on the wedding girl.” The wedding girl is Anna Ruch, who accused Andrew of making a pass at her. Chris’s “lead” was a possible means of casting aspersions on her accusation; Chris told the attorney general’s fact-finders that he had learned of a source who might say Ruch had ulterior motives.

Despite claiming during his interview with the attorney general’s office that “I would never do oppo research on anybody alleging anything like this,” he was clearly engaged in a form of opposition research. He wasn’t just passively listening to his brother’s side of the story and offering words of encouragement: He took part in the strategizing.

That’s not a crime, of course. It’s unsurprising that he would take his brother’s side and want to help him. But it was wrong for Chris to mislead his viewers about the role he played, and it was wildly unethical to ignore the scandal during his broadcast while privately participating in the governor’s response efforts.

The matter was badly handled by the network: At the height of the pandemic, CNN broke its own policy and allowed Andrew to give fluff interviews to Chris that glamorized the then-governor’s response to COVID-19. These interviews never should have taken place, and they look especially ridiculous now that we know about the nursing home scandal and subsequent coverup.

Given that Chris significantly understated his involvement in his brother’s strategizing, CNN must discipline him. The network says it’s reviewing the anchor’s conduct. It is difficult to imagine any competent review reaching the conclusion that he should keep his job. An important television journalist being the brother of a high-profile government official was an ethically challenging situation at best, and if there was some line in the sand that made it workable enough, Chris Cuomo clearly crossed it.

“By keeping Cuomo on the air and in his job, CNN would send the message that journalistic ethics are only for the little people and viewers are on their own,” wrote The Atlantic‘s David Graham. “Cuomo should take some time off and reflect on his chosen profession—and if and when he comes back, perhaps he should choose a new beat.”

An entirely new line of work might be for the best.

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Should the worrisome omicron coronavirus variant turn out to be more contagious and more severe than currently circulating versions of the virus, the COVID-19 antiviral pills developed by Pfizer and Merck will likely be effective at reducing the risks of hospitalization and death from that variant. Why? Because both medicines disrupt parts of the virus’ genome that are necessary for its replication and which, unlike the virus’ spike protein that most vaccines target, rarely mutate.

The Pfizer pill (Paxlovid) is a combination of the ritonavir protease HIV inhibitor and a new protease inhibitor that targets a specific enzyme that the coronavirus needs to replicate and grow. Merck’s pill (molnupiravir), developed with Ridgeback Biotherapeutics, is a ribonucleoside analog; when the virus incorporates it during replication, it basically causes the virus to mutate itself death.

Early indications in the clinical trials suggested that both medicines were so effective that it would have been unethical to continue enrolling control subjects to take placebos. In October, Merck reported initially that its pill reduced the risk of hospitalization or death from COVID-19 infections by 50 percent. However, the latest data from Merck suggests that its molnupiravir pill reduces the risks of COVID-19 hospitalization and death by about 30 percent.

In early November, Pfizer reported that its Paxlovid treatment reduced “the risk of hospitalization or death by 89% compared to placebo in non-hospitalized high-risk adults with COVID-19.” Yesterday, Pfizer CEO Alberta Boula told CNBC that he has a “very high level of confidence that the treatment will not be affected” by the omicron variant.

On November 4, the United Kingdom’s regulatory authorities approved molnupiravir as a treatment for COVID-19 infections. Meanwhile, the U.S. Food and Drug Administration (FDA) continues to dawdle over approving medications that were so effective that independent Data Monitoring Committees ruled that it would be unethical to continue giving placebos to study participants.

Speaking of dawdling, the FDA has long stymied the development and roll out of another vital component for the effective use of these antiviral medications: namely, at-home COVID-19 testing. Both pills must be taken by people within 3 to 5 days of exposure or symptom onset to be most effective at preventing hospitalization and death. That means that people need to be able to test themselves quickly, easily, and cheaply.

Up until mid-October, the FDA had approved only two over-the-counter at-home COVID-19 diagnostic tests, one of which has now had to be recalled. In the last month and a half, agency regulators have finally gotten around to authorizing nine more. The good news is that preliminary evidence suggests that current self-tests would be able to detect omicron variant infections.

A February 2021 poll by researchers at the Harvard T.H. Chan School of Public Health reported if COVID-19 self-tests cost $1 a piece, 79 percent of Americans would test themselves regularly at home. That figure dropped to only 33 percent if the cost was $25 per test. In the poll, the vast majority of respondents said that positive test results would spur them to take precautions to protect their family, friends, and work colleagues from becoming infected. According to the poll, 94 percent would stay home, 93 percent would isolate from family members, and 90 percent would wear a mask and make sure household members/close contacts got tested.

A quick internet check finds that most COVID-19 self-tests are still not widely available and those that are available cost more than $20. Of course, speedier FDA approval of COVID-19 self-tests would have spurred competition between brands that would have made them more widely available and lowered their prices to consumers.

Interestingly, New Hampshire public health officials began offering to send free (tax-paid) at-home COVID-19 tests to any of the state’s residents on Monday. In less than 24-hours, 100,000 households had requested them, exhausting the “Live Free or Die” state government’s supplies. (I brought home 28 COVID-19 self-tests that were being given away by public health functionaries on the streets of Glasgow, Scotland, while I was there covering the U.N. climate change conference.)

In October, the Biden Administration announced that it would spend $1 billion on purchasing and distributing at-home COVID-19 tests for free at public health clinics, food pantries, and community centers. The goal is to ramp up production to 200 million at-home tests in December. That amounts to around 0.6 tests per American per month. That’s not enough testing to diagnose in a timely fashion a lot of people who could benefit from the new COVID-19 antiviral pills when the FDA finally gets around to approving them.

Let’s hope that the worst fears about the omicron variant are not realized, but ramping up access to millions of cheap COVID-19 self-tests daily would enable people who do become infected to voluntarily take measures to prevent transmitting the virus onward to family, friends, and their fellow Americans.

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Yesterday, Justice Brett Kavanaugh requested that the federal government file a response to Breeze Smoke LLC’s application for an emergency stay to block the Food and Drug Administration’s order denying approval of the manufacturer’s flavored vaping products. I noted Breeze Smoke’s application in this post last week. The government’s response is due December 6. The case docket is here.

Breeze Smoke is seeking an emergency stay from the Supreme Court after a divided panel of the U.S. Court of Appeals for the Sixth Circuit refused its stay application. As I explained here, the Sixth Circuit panel expressly disagreed with a panel of the U.S. Court of Appeals for the Fifth Circuit, which granted another company’s stay application due to the FDA’s arbitrary and inconsistent approach to reviewing product applications for flavored  vaping products (often called electronic nicotine delivery systems or “ENDS”). Another manufacturer obtained a stay from the Seventh Circuit, while a fourth was denied a stay by the Ninth Circuit. To compound the inconsistency, the FDA has rescinded its rejection of product applications from still other ENDS manufacturers who raised similar substantive objections.

There is little question that this case presents the sort of administrative law question the justices would usually prefer to consider in the regular order, after multiple courts of appeals have fully considered the underlying merits and, only then, after full argument and briefing. The problem here, however, is that for many ENDS manufacturers, FDA denial of their applications amounts to a death sentence, as without such approval they cannot continue to sell their products. Further, as noted above, the circuit courts are already split on the egregiousness of the FDA’s behavior. (While the Sixth Circuit denied the stay, it acknowledged that some of Breeze Smoke’s complaints rang true.) So it will be interesting to see whether the justices believe this case raises sufficient concerns to justify intervention.

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The Academic Freedom Alliance has released a public letter to the University of Rochester objecting to the treatment of an English professor there. Professor David Bleich has long taught classes dealing with sensitive subjects in race and gender. Those courses include readings that make use of offensive language. As is often the case, the details of the assigned texts need to be discussed in class and the texts need to be read aloud and quoted accurately in order to facilitate that careful analysis. Such conversations can sometimes be difficult but they are at the heart of what it takes to do college-level work in literary criticism and analysis.

This semester, Professor Bleich is teaching a class on Gender and Anger. He read aloud from a short story that had been assigned to the class. The portion of the text he read included the n-word. Students objected, and there was a vigorous conversation about the use of the word. In a subsequent class, Professor Bleich read to the students a section of Harvard Law School Professor Randall Kennedy‘s Chronicle of Higher Education article on the use of the n-word in classroom settings.

The university responded by suspending him from teaching his class and putting in place various restrictive conditions that must be satisfied before he would be allowed to resume teaching. The university is taking the position that it is never appropriate for a professor to say the n-word aloud in a college class.

This issue has become a common one at universities across the country. Some professors have been insufficiently thoughtful about the language they use in classes, and these controversies have sometimes led to a desirable reconsideration of how instructors approach their teaching. But these controversies have also stifled the ability of professors to engage in the kinds of conversations that should be taking place in college classrooms. It is not appropriate for professors to hurl slurs at their students, but it is academically essential that professors be able to discuss slurs and how they are used. Universities ought to be able to understand the difference between the use of a word and the mention of a word.

The Bleich case highlights the dangers here. A dean from a completely different discipline has made a unilateral decision about how English professors should conduct their literature classes. The same sweeping edicts from above would have implications for a host of other classes where offensive language might need to be discussed frankly and clearly in disciplines ranging from anthropology to history to philosophy to linguistics.

The University of Rochester is going down a path that violates its own clearly stated contractual commitments to academic freedom, and in the process it is doing a disservice to both its students and its professors.

From our letter to the University of Rochester:

As the AAUP has elaborated on the implications of this freedom to teach, it has repeatedly emphasized that classroom discussions of the type at issue here are well within the bounds of the principles of academic freedom to which Rochester has contractually committed itself and that are generally accepted within the profession. The AAUP’s 1994 report on freedom of expression firmly concluded that it would be a breach of professional ethics and outside the bounds of academic freedom for a professor to ridicule or harass a student in the classroom, but that such “verbal assaults” had to be sharply distinguished from the expression of hateful ideas, including the words that are used to express those ideas. Offensive speech must sometimes be used in the classroom, and it is subversive of the protection of freedom of classroom teaching to depart from established legal standards of harassment to proscribe frank classroom discussions of the ideas, words and behaviors that might be used to harass.

You can read the whole thing here.

Unsurprisingly, Professor Kennedy was unamused by the suggestion that it is inappropriate for a college professor to read aloud from Kennedy’s own work. As he told the AFA:

“It is profoundly disturbing to see an instructor investigated and disciplined for grappling in class with a term that has had and continues to have a hugely consequential place in American culture. The demand to make this term – ‘nigger’ – literally unmentionable is a demand that ought not be honored. Compelled silence or bowdlerization is antithetical to the academic, intellectual, and artistic freedom essential to higher education.”

The University of Rochester should immediately reverse course and reaffirm its commitment to being an institution of higher education and a university that respects the intellectual abilities of its students and the academic freedom of its professors.

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My colleague Sherif Girgis passed along these thoughts on Dobbs, which I’m posting with his permission.

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Will the Supreme Court uphold Mississippi’s ban on abortions after 15 weeks without fully reversing Roe and Casey and restoring rational-basis review to abortion laws?  Scholars like John McGinnis and Mark Tushnet have wondered (without endorsement) if the Court might claim to do that by applying Casey‘s rule against “undue burdens” on abortion.  This is thought to appeal to the Court as a modest and restrained resolution of Dobbs.

But this approach would flatly misrepresent what Casey meant by “undue burden.”  The phrase meant “constructive ban.”  It referred to any incidental regulation of the procedure that’s as harmful to abortion access at some gestational stage as a ban would be, and which should thus be treated the same as a ban.  Since Dobbs involves an actual ban, the “undue burden” concept is irrelevant here.  And trying to fit the concept to this case would transform its meaning.  In fact, Dobbs would be replacing Casey‘s doctrine with something wholly new, lacking even partial support in existing legal sources.  The resulting abortion right would require a new constitutional justification.  And as explained below, that new rationale would have to affirm a minimum-core abortion right that (unlike Roe and Casey) left no analytic room for later cases to permit wider bans based on new judgments of fetal worth or evidence on fetal development.  Indeed, having to justify any new doctrine without leaning on other sources would make it hard to keep chipping away at Roe, as the Justices might hope.  For that would then require them to contradict not only Roe and Casey but their own case for a new right in Dobbs.  Meanwhile, Dobbs‘s new test would be markedly vaguer than Casey‘s, leaving courts more at sea.  This would ensure serial litigation by states eager to push the line back, given that 95% of abortions occur before 15 weeks.

If my reading of Casey is right, then, the proposed Dobbs analysis would be more groundless than any abortion opinion since Blackmun’s in Roe, easier to manipulate than the Casey plurality’s, and harder to roll back.

Since the current Court is more formalist than this (or any other) middle ground would allow, and this proposal would have the opposite of the virtues meant to make it appealing to the Court, I think the Court will go all or nothing in Dobbs.

1. Understanding Casey.  The Justices’ best hope for minimizing these effects is to rest a halfway ruling on at least part of some precedent.  That would relieve them of inventing a new rule and defending it on their own say-so.  Hence the proposal to apply Casey‘s rule against undue burdens on abortion.  But the proposal misreads what Casey meant by that phrase.

Some critics say Casey‘s “undue burden” test can mean anything you want it to.  That would have been true if the word “undue” as used in Casey meant no more than “unconstitutionally restrictive” (or “unconstitutional”).  For then the “undue burden” test would simply be telling judges to determine if abortion laws are unconstitutional—without telling them how to.  But that’s not what “undue burden” means; it has a more specific and concrete sense given below.  And in any event, whatever vagueness plagues the word “undue” is irrelevant to Mississippi’s ban, which is excluded by another, perfectly sharp rule that Casey held onto from Roe.  (By contrast, a Dobbs “middle ground” would preserve nothing of Casey and have no sharp edges.)

To see why, start with Roe‘s holdings:

1. All abortion regulations trigger strict scrutiny, and thus require a compelling justification.
2. The interest in protecting the woman’s safety becomes compelling only in trimester two. 
3. The interest in protecting fetal life becomes compelling only after viability.

These premises produced three rules:

1. No abortion regulations in trimester one. 
2. Only incidental regulations—for women’s safety—in trimester two. 
3. No prohibitions (which can be justified only as protections of fetal life) until after viability.

Casey reaffirmed premise C and hence result F (making Casey an actual middle ground between partial and full reversal of Roe).

Casey did reject premise A’s insistence on strict scrutiny of all abortion laws.  As Casey said, drawing analogies to voting rights, not every law that “makes a right more difficult to exercise” should be lumped in with bans.  With abortion, some incidental regulations—e.g., credentialing requirements for providers—might not curb access by much.  So Casey needed a way to pick out which regulations “touching upon” abortion were severe enough to require a compelling justification, just as prohibitions do.  These would be laws that posed a “substantial obstacle” to abortions at a given stage, “deterr[ing]” them “as surely as” prohibitions would.  And the label Casey picked for them was “undue burdens.”  The phrase thus refers to constructive prohibitions:  incidental regulations similar—in their impact on abortion at some stage—to actual prohibitions.

Note, finally, why Casey devised this test:  to implement the rationale for abortion rights that Casey repeatedly embraced as Roe‘s “central holding” (premise C above).  That rationale is all about when a fetus gains enough moral status to provide a compelling justification for abortion bans.  As Casey put it:  “Before [the fetus attains] viability, the State’s interests are not strong enough to support a prohibition or the imposition of a substantial obstacle to” abortion.

Casey‘s resulting rules:  

• No prohibitions until viability (since they still require a compelling interest).
• No incidental regulations that amount to prohibitions (“undue burdens”) until viability (same reason). 
• But laws that do not actually or constructively ban pre-viability abortions now face rational-basis review.  (This is the only change from Roe.)

This shows why Dobbs can’t exploit the vagueness of “undue.”  True, it’s vague which regulations are harsh enough to be undue—i.e., constructive prohibitions.  But it isn’t vague what rule applies to laws held to be constructive prohibitions:  forbidden until viability (long after 15 weeks).  And since the undue-burden concept only tells us which regulations to treat like bans, it isn’t needed for analyzing actual bans (like Mississippi’s).  Those are all forbidden until viability.

To sum up:  Casey‘s test would have been plastic enough for use in Dobbs if “undue burden” conveyed no more information than “unconstitutional.”  Call this the conclusory sense of “undue.”  But in fact Casey used “undueness” as a premise—as a way of capturing some independent feature of abortion laws that would serve as an input for courts’ analysis of whether those laws are undue in the conclusory sense (i.e., unconstitutional).

In the conclusory sense, every constitutional rights case is about which laws are “undue.”  (We could say Janus found undue burdens on the First Amendment, Heller on the Second.)  But in that sense, “undue” isn’t doing analytic work; substantive doctrines are.  Whereas in Casey, “undue” was clearly meant as an input.  (For one thing, Casey declared two things invalid but called only one “undue”:  pre-viability prohibitions and pre-viability undue burdens.  And the fact that Casey rejected undue burdens not at all stages, but only until viability, also proves that “undue” was not just another word for “unconstitutional.”)  What Casey meant by “undue burdens” was constructive bans, which aren’t at issue in Dobbs.  So even if Dobbs were to say it was testing for “undue burdens,” its analysis would be driven by something new.  Merely using the word “undue” wouldn’t give Dobbs overlap with Casey beyond what’s common to all constitutional rights cases:  a search for what’s undue in the conclusory sense (unconstitutional).

2. Casey and Dobbs.  It would therefore take lots of rewriting to uphold a 15-week ban for imposing no “undue burden.”  First, the Court would have to erase Casey‘s “no prohibitions before viability” rule.  (Never mind that it flows from the same holding about fetal worth as the undue-burden rule.)  Next the Court would have to white-out a part of the “no undue burdens until viability” rule itself—the “until viability” part.  This would be intended to leave a freestanding “no undue burdens” rule.  Then the Court would say it was upholding the 15-week ban without endorsing or rejecting this “no undue burdens” rule since it wouldn’t have to:  Either way, the ban would stand because it leaves ample time to abort (up to the 15th week).

Yet even this last move would raze the remaining stump of Casey.  So the proposed “middle ground” would retain nothing of Casey.  Though stealing a trademark phrase (“undue burden”), Dobbs would intend by the phrase something with a completely novel (a) meaning, (b) doctrinal function, and (c) underlying constitutional justification or rationale for abortion rights.

First, the analysis above shows that under Casey, avoiding “undue burdens” is not about leaving women enough time to decide to abort before bans kick in.  Rather, “undueness” is based on the law’s impact on abortion access at a given point in pregnancy.  An unduly burdensome law sets too high a hurdle for aborting at some stage.  And since “undue burden” just means “law as harmful as a prohibition,” a rule against undue burdens could never allow actual prohibitions, as in Dobbs.  (If constructive bans are high hurdles, real bans are brick walls.)

Second, it would defeat the whole function of the undue-burden rule for Dobbs to erase from it any mention of a timeframe.  After all, the rule’s entire job is to tell us the times in a pregnancy when constructive prohibitions (“undue burdens”) are unconstitutional.

Third, without a rule to serve this time-related function, Dobbs could never implement Casey‘s (and Roe‘s) “central” rationale for constitutional abortion rights.  For that rationale, again, focuses on a key moment in fetal development.  It says “the State’s interest in fetal life” is not “constitutionally adequate to justify” (effective) bans until the fetus has matured to the right age.

Concretely, then, if Dobbs upheld Mississippi’s ban for imposing no “undue burden,” the phrase would no longer mean “regulation that has the same impact as a ban,” but “actual ban that applies too early.”  This new concept’s doctrinal function would be to tell us how much time a woman must have between learning she’s pregnant and facing an abortion ban.  And the constitutional rationale would thus have to be, not that the woman’s interest trumps the fetus’s until the fetus is viable, but a rationale less sensitive to changing judgments of fetal worth at different stages:  that one way or another, the Due Process Clause—at a minimum—entitles a pregnant woman to some fair opportunity to abort.  (An opinion simply re-calculating the point at which fetal life trumps women’s autonomy would seem especially unlikely here, since such calculations were rejected by the Chief last year as incoherent weighings of incommensurables.)

Likewise, despite a passing suggestion by Mississippi, Dobbs cannot rely on the “large fraction” test used in Casey and later cases by upholding this 15-week law as not affecting a “large fraction” of women seeking abortions.  The large-fraction test doesn’t purport to tell us when a woman’s access to a pre-viability abortion is unduly burdened.  It tells us how many women’s access must be unduly burdened before a law can be held invalid facially, rather than as-applied.  And we already know how large the unlawful fraction is for actual bans like Mississippi’s:  100% of their pre-viability applications are invalid under Casey.

3. Upshots.  Embracing a test that only rhymed with Casey‘s would have unintended effects.

First, lacking a toehold in Casey (or other legal sources), the Court would look arbitrary and legislative on a highly charged issue.

Second, Dobbs‘s new rule would bring in tow a new constitutional rationale for an abortion right staked on the Justices’ own authority, making it harder for them to later scale back.  True, the Roberts Court has often overruled a precedent in part, or refused to extend it “to situations where it does not squarely control,” only to scrap it later.  But it’s another thing to reject a precedent’s doctrine on a legal question (Casey/Roe‘s on abortion bans), and so have to justify a brand-new replacement (in Dobbs), before coming back to reverse your own replacement.  (Imagine if the Casey plurality—after replacing Roe‘s “no first-trimester regulations” rule with a “no pre-viability undue burdens” rule—later declared even those undue burdens lawful after all.)

Third, scaling back would be hard also because Dobbs—unlike Roe/Casey—would’ve affirmed an absolute minimum right that isn’t pegged to evolving judgments about the interest in fetal life at different stages.  This would leave no room to later uphold more-sweeping bans based on greater deference to state judgments on that interest, or new discoveries in fetal development.

Fourth, unlike Casey, this Dobbs proposal would apply no bright-line rule to bans or anything else.  It would presumably use “undueness” to determine both when a regulation is like a ban and when a ban (or constructive ban) starts too early.  The resulting test:  “No unduly early ‘undue burdens’ on access.”  The second layer of vagueness would invite serial litigation of how much time is constitutionally required—15 weeks? 12? 10? 8? 6?  A law now before the conservative Sixth Circuit has severable provisions banning abortion from each of these points. 

*   *   *

 The “undue burden” concept’s meaning, its doctrinal function, and the rationale for the resulting right announced in Roe and reaffirmed in Casey are of no use to a lukewarm Dobbs.  Even if the Justices borrowed Casey‘s signature phrase (“undue burden”), they would have to give it a job, and adopt a corresponding rationale for the resulting abortion right, that contradict precedent, find no support in other sources, confuse courts, and rest little on states’ interest in fetal life.  Dobbs would be more slippery than Casey, less grounded, and harder to disown.

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One of the strangest ticks of left-leaning punditry over the last year has been the contention that if Democrats in Congress didn’t join together to pass some sort of climate and social spending bill—the various multi-trillion-dollar reconciliation packages that have gone under the label Build Back Better—then President Joe Biden would have presided over a failed presidency. The idea was that without this legislative package, Biden would have no accomplishments, no legacy, and nothing to show for his years in office with congressional majorities. Without the spending bill, Biden and the Democratic Party were doomed. 

On the contrary, the evidence suggests that Biden is already presiding over a failed presidency—and passing the spending bill could further cement that failure. 

A new poll from Echelon Insights puts Biden’s predicament in rather stark relief. Over half of voters disapprove of the way Biden is handling the economy, foreign policy, and his job as president. Similarly, inflation is among the top concerns for voters right now, and 52 percent of registered voters believe Biden is making inflation worse. The question poll respondents were asked is pretty telling: “Do you think Joe Biden’s policies are making the inflation situation…Worse? Better? Or not making a difference at all?”

The keyword in that query is policies. Voters blame Biden’s policies for current economic turmoil. 

And while there is probably, as always, some muddled thinking on the part of some voters about exactly what Biden has done to mismanage the economy, it is not wrong to blame Biden and congressional Democrats for stoking inflation. The first major legislative act that Biden and Democrats in Congress took this year was to pass a deficit-funded $2 trillion coronavirus relief and economic stimulus bill that was much larger than what most economists were calling for, one that some economists—even some long associated with the Democratic Party, like Larry Summers—said would make inflation worse. 

And here we are, the better part of a year later. Inflation has indeed accelerated and is likely to continue to accelerate in the near future. Combined with supply chain problems, this is causing Americans economic pain and frustration in their daily lives, pain that is highly visible in the prices at gas stations and supermarkets in the form of obviously higher prices for certain staples. Indeed, inflation has risen so rapidly that it has effectively destroyed this year’s wage gains for workers. They’re earning more—and they’re still worse off. 

Americans, in other words, have quite clear, quite obvious economic problems. And they wish that Biden was focused on policies specifically aimed at addressing the immediate economic problems they face: Echelon’s poll finds that 72 percent of voters—including, notably, 58 percent of Democrats and Democratic-leaning voters—want Biden to prioritize inflation and supply chain issues over social spending.  

Instead, Biden and Democratic leadership in Congress have spent most of the year relentlessly focused on passing a massive spending bill that, among other things, will give the IRS more money to poke around in people’s finances, and tax methane emissions in a way that is all but certain to increase home heating costs. But at least when it’s all done, there will be a “Women of Trucking Advisory Board” as part of an initiative aimed at “promoting women in the trucking workforce.” Women may well be woefully underrepresented in trucking, and I for one am ready for an all-woman remake of Sylvester Stallone’s Over the Top, but a meaningful solution to the supply chain crunch this is not.

Biden, in other words, is focused on legislative initiatives that would attempt to remedy non-problems that people aren’t particularly worried about while ignoring the very real problems that already exist—problems that his policies, supported by Democrats in Congress, have helped exacerbate. If anything, Biden’s spending plans could make those problems worse still, by throwing more federal spending into an already inflationary economy, and by diverting resources toward Democratic social and climate priorities rather than more pressing issues. 

This was always a problem with Biden’s broader economic agenda: It was a grab-bag of expensive, preexisting Democratic hobbyhorses—more money for unions, for already-bloated health care programs, for climate policies of dubious effectiveness—instead of a set of tailored and focused responses to the problems Americans are actually facing right now. And rather than turn his attention to the most pressing issues, upon entering office Biden dug in on the checklist he came in with, acting as if he represented a commanding public majority that had endorsed trillions of dollars worth of social and economic change.

Just yesterday, Senate Majority Leader Chuck Schumer (D–N.Y.) said that he hoped the Senate would pass the spending bill by Christmas. It’s clear what congressional Democrats are focused on, and it’s not the same thing that voters are focused on. So in pushing to pass Build Back Better, Biden and his fellow Democrats in Congress are doubling down on a strategy of ignoring voter problems in favor of mostly irrelevant party priorities. 

This was always a recipe for a failed presidency, one incapable of adapting to the moment or addressing genuine voter needs—and so it is no surprise that as Biden has followed that recipe, his presidency has flailed and faltered. And as long as he sticks to this course, his failures are all but certain to continue. 

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