Tag: in-the-news

Justice Barrett has something of a tell. In at least two big cases, her first question in oral arguments gives away her bottom line.

For example, her first question for the petitioners in Fulton v. City of Philadelphia suggested a hesitancy to overrule Smith:

Good morning, Ms. Windham. So you just kind of indicated that — you know, that maybe Smith shouldn’t have been applied here, and you argue in your brief that Smith should be overruled. But you also say that you win even under Smith because this policy is neither generally applicable nor neutral. So, if you’re right about that, why should we even entertain the question whether to overrule Smith?

Lo and behold, Justice Barrett did not reach the question about whether Smith should be overruled, because the Philadelphia policy was not neutral and generally applicable.

Her first question for the respondents in California v. Texas focused on traceability.

Good morning, General Hawkins.

I want to go back to Justice Gorsuch’s questions about standing for the individual plaintiffs. So let’s say that we agree with you that the mandate, by making them feel a legal compulsion to purchase insurance, has caused them a pocketbook injury. Why is that traceable to the defendants that the individuals have actually sued here? I mean, I can see how it’s caused by or traceable to a mandate itself, but how is it traceable, say, to the IRS or to HHS? Why is it their action that’s actually inflicting the injury?

At that point, none of the Justices had asked about traceability. And, lo and behold, the Court’s decision turned entirely on traceability.

Justice Barrett puts her cards on the table with her first question.

What will Justice Barrett’s first question be in Dobbs?

Here is a best-case-scenario question:

General Prelogar, this Court said in Washington v. Glucksberg that the Due Process Clause “protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition.” Can you explain how the right to abortion recognized in Roe and Casey is “deeply rooted in this Nation’s history and tradition”?

Here is the break-the-glass question:

Mr. Stewart, we granted certiorari to decide “Whether all pre-viability prohibitions on elective abortions are unconstitutional.” If we agree with you that the answer is yes, why should we even entertain the question whether to overrule Roe.

We shall see.

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A SWAT team destroyed an innocent woman’s house after a fugitive barricaded himself inside. Last week a federal court ruled that she can sue the government for damages.

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.

She sued. So the city asked the court to dismiss the lawsuit.

“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 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.”

The fact that this needed to be spelled out is a commentary on how difficult it has become to get meaningful accountability from the government. At the center of Baker’s case is the Takings Clause of the 5th Amendment, which is supposed to provide recourse to those who had their property taken or destroyed by the government. But this protection has been weakened by a series of court cases creating carveouts for actions taken under the broad scope of “police powers.”

“They’re forcing unlucky individuals to shoulder the burden of doing something that’s good for society,” Jeffrey Redfern, an attorney with the Institute for Justice, the public interest law firm representing Baker, told me in March. “Taking dangerous criminals off the street is good for society. If the city decides that it really needs to put a road through your house, that might be the right call. It might be something the community really needs. But that doesn’t justify making one unlucky owner bear the cost of doing something that’s good for everyone.”

It’s not unheard of for SWAT teams to destroy innocent peoples’ homes in pursuit of fugitives unrelated to them or because the police didn’t verify they had the correct address. The Supreme Court rejected a case brought by a Colorado family who tried to sue after SWAT agents mutilated their $580,000 home while pursuing a shoplifting suspect. And a group of more than two dozen police officers received qualified immunity after throwing explosives into the wrong man’s home during a drug raid—meaning the 78-year-old victim, Onree Norris, could not sue them.

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.”

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The discovery of the potentially more dangerous Omicron variant of Covid-19 last week led many nations, including the United States, to ban most entry from South Africa and several neighboring nations, where the virus was first discovered. Israel and Japan have taken the even more draconian step of banning nearly all entry by non-citizens. These measures are almost certain to fail in their goal keeping out or even significantly delaying entry of the new variant. At the same time, they will – unless quickly reversed – cause enormous suffering. The record of previous Covid travel and migration bans proves as much.

Remember how Donald Trump’s travel bans on China and Europe kept the initial Covid out of the United States? How about when continued travel bans, combined with massive Title 42 border expulsions  and the most restrictive immigration policies in all of American history kept out the more contagious Alpha and Delta variants?

If you don’t recall those things, it’s because they didn’t happen. Those policies all failed miserably, and the various Covid variants entered the US anyway. And very swiftly, too.

The record of European and Canadian travel bans is similar. Those countries, too, enacted draconian restrictions that failed to keep variants out.

But at least the travel bans delayed the spread of Covid long enough that we were far better prepared when the the variants in question did arrive. Sadly, no. Travel bans delayed it only briefly, if at all, and there is little evidence we gained much as a result.

By contrast, we do know that Covid travel bans have inflicted immense harm on millions of people around the world. They have separated numerous families, prevented loved ones from seeing each other in time of need, and cut off many thousands of people from valuable job opportunities. To the extent that many travel bans also include severe migration restrictions, they have damaged our economies and actually imperiled long-term improvements in health care, by blocking migrants who are likely to contribute to scientific and medical innovations.

Consider the example of a South African woman who is “devastated” because she will not be able to be with her daughter in the UK, as the latter undergoes major surgery. Multiply that by hundreds of thousands of similar (and worse) cases around the world, continuing for months on end, and you will begin to have some idea of the immense devastation already caused by Covid travel bans.

Defenders of travel bans can cite the example of Australia and a few other island nations, which kept Covid out for some time. But to the extent they succeeded, it was only combining it with brutally harsh restrictions on internal freedom of movement and civil liberties. And even Australia failed to stop the Delta variant. Today, Australian officials openly admit they will not be able to prevent the entry of the Omicron variant. New South Wales Premier Dominic Perrottet conceded that “these variants will get into the country, it is inevitable.”

Officials in the United States – from President Biden on down – also admit they will not be able to keep Omicron out. The same is true in Europe.

The sad history has led many public health experts, who tend to be enthusiastic about a wide range of other Covid restrictions, to oppose the most recent round of travel bans. Former FDA Commissioner Scott Gottlieb, author of a leading book about the pandemic, argues that they are even likely to be counterproductive:

Gottlieb and others warn that imposing travel bans on countries that reveal new variants can create incentives to avoid sharing information, covering up the existence of a variant until after it has spread so far that its origins become difficult to trace.

In theory, governments could potentially impose very brief travel bans when a potentially dangerous new variant is detected, just long enough to do some useful research and preparation. They can then remove the ban once – as inevitably occurs – it no longer meaningfully constrains the spread of the disease. In this way, we could maximize the gains from travel bans, while minimizing the pain.

That might, perhaps, work with well-informed “benevolent despot” governments, which are immune to political pressure and always scrupulously weigh costs and benefits. But such well-informed benevolent despots are in short supply. In the real world, governments rarely have good information when a new disease or variant first emerges.

And, once instituted, travel bans and associated migration restrictions tend to remain in place for many months past the point where there is any chance they might do good. The bans instituted in response to the initial Covid crisis remained in place long after both the original virus and later variants got in and achieved “community spread” throughout Europe and North America.

Political incentives kept them in place. For some on the right, the Covid crisis was a good excuse to impose severe migration restrictions of a kind they had long advocated. On the left and center, many politicians feared to look “soft on Covid.” Perpetuating border closures make it easier to send the signal that the government is taking the crisis seriously. Politicians and bureaucrats of all stripes are all too willing to inflict pain of a kind that disproportionately falls on recent immigrants, foreign workers, and their families – people with little or no political influence.

Such dynamics might be less of a problem if voters were knowledgeable about border closures and related Covid policies, and effectively punished politicians who overstep. In fact, however, widespread public ignorance inhibits such monitoring here, as it does on many other policy issues.

In sum, ideal governments could, perhaps, be trusted with the power to close borders any time a new variant or disease threat emerges. The ones we actually have – not so much.

It is tempting to say that, on travel bans and other “public health” measures, we should just defer to the scientists and other health care experts. If they say travel bans are justified, then we must assume they are. It indeed makes sense to defer to scientists within their areas of technical expertise; I’ve written about the value of such deference myself, including in some cases where it may bolster policy conclusions I dislike.

But the merits of  travel bans – like other severe restrictions on liberty – do not depend on technical scientific considerations alone. They also have moral, social, and economic dimensions. On these sorts of questions, scientists are not expert. Indeed they often know less than specialists in other fields. When it comes to travel bans, the latter includes people with expertise on the value of international migration and freedom of movement, and also those who have conducted research on the ways in which public ignorance may inhibit carefully calibrated “scientific” policies.

It so happens I have expertise and a record of peer-reviewed publications in both of these areas, myself. That doesn’t necessarily mean I’m right. Far from it. People make mistakes within their areas of expertise all the time. But it does mean that I and others with similar backgrounds are not required to defer to public health specialists on those aspects of Covid policy that relate to our own areas of knowledge.The scientists know far more than we do on such technical questions as how deadly the new variant is and how transmissible. But their understanding of the relevant political, economic, and moral issues is likely to be far more limited.

And, in this case, it is noteworthy that many public health specialists have themselves begun to doubt the value of Covid travel bans. When people with different types of expertise begin to converge on similar conclusions, that can be a helpful (though still not infallible!) sign of where the truth lies.

In sum, the current round of travel bans should be swiftly lifted. In medium to long term, the power to impose such travel bans should either be abolished or at least tightly circumscribed. Doing this will not be easy. But it may be the only way to forestall further massively cruel harm, of the sort we have seen over the last two years.

 

 

 

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As Afghanistan fell to the Taliban in August 2021, the U.S. undertook a massive effort to evacuate vulnerable Afghans—particularly those who had assisted U.S. troops during America’s 20-year war there—to safety. Though tens of thousands of Afghans made it out, many are still stranded in Afghanistan and third countries.

Many people seeking an escape from Afghanistan do not qualify for the pathways available to Afghans who served the U.S. military effort in some capacity. Women and girls, human rights workers, journalists, judges, and others must now look instead to a little-used tool of the U.S. immigration system called “humanitarian parole.”

This measure, outlined by the Immigration and Nationality Act, allows certain individuals to enter the U.S. for a temporary period under the discretion of United States Citizenship and Immigration Services (USCIS), on the basis of “urgent humanitarian reasons or significant public benefit.” There is no defined set of criteria as to who may qualify for parole, and anyone may apply for it.

Though humanitarian parole allows for faster processing of applicants, it still involves robust vetting. For Afghans, that has meant biometric screenings, cross-checking with intelligence agency watchlists, and other security and identity verification steps. Senior government officials must approve individual applications.

Since July, more than 28,000 Afghans have applied for entry to the U.S. on humanitarian grounds, and the Biden administration reportedly plans to use parole to evacuate up to 50,000 Afghans. But only about 100 applicants have been approved so far.

In large part, this is because this year’s application volume dwarfs the 2,000 parole applications USCIS would receive in a typical year. Staffing issues are also a factor. “Victoria Palmer, a USCIS spokeswoman, said the agency has trained 44 additional staff to help address the application surge,” reports Al Jazeera. “As of mid-October, the agency had only six staffers detailed to the programme.”

“There’s a broad staffing shortage at USCIS in general,” says Danilo Zak of the National Immigration Forum. “There should be a lot more people in this office adjudicating these claims….Normally, they try to get 90 percent of these humanitarian parole applications adjudicated within 90 days, but to me that’s too long in the first place.”

For the vulnerable people that humanitarian parole is supposed to serve, 90 days could be a matter of life and death. Since the Taliban retook control of Afghanistan, there have been reports of militants killing a pregnant policewoman, massacring members of an ethnic minority group, and violently assaulting journalists. 

Despite the danger to people stuck in Afghanistan, USCIS says it is “prioritizing the parole applications for Afghan nationals outside of Afghanistan.” Processing parole applicants in Afghanistan has become effectively impossible since the U.S. Embassy in Kabul suspended operations on August 31 this year. If applicants are deemed eligible for parole, USCIS says that they must arrange their “own travel outside of Afghanistan to a country where there is a U.S. embassy or consulate.”

Applying for parole carries a steep $575 filing charge as well—and an application is no guarantee of protection. USCIS has received roughly $11.5 million from Afghans in just the past few months, according to Al Jazeera, but it has approved few applications in that time.

“We need to be creating much more efficient processing systems,” says Zak. “These are the people who are in the most imminent danger that we’re adjudicating.”

There is precedent for using parole this way. “Parole has also been used—repeatedly and to great effect—to facilitate the evacuations of allies and others at risk following the withdrawal of U.S. troops from war-torn regions,” writes Zak. It was used in Operation New Life in 1975 to grant entry to 130,000 people following the U.S. withdrawal from Vietnam. Later, during Operation Iraqi Freedom in 1996, parole helped 6,600 evacuees. Thousands of refugees and allies during those two efforts were brought to Guam and Wake Island to undergo vetting and processing before coming to the mainland U.S.

“There’s a couple things I think the administration could have done and could still do to improve this process,” says Zak. “The first, of course, is just continuing to surge resources to the humanitarian assistance branch at USCIS, making sure there’s enough employees to process these requests efficiently.” Second, Zak thinks USCIS should eliminate the burdensome application fee that Afghans must pay “without even a guarantee that they’re going to receive protection.” Third, USCIS should waive the requirement that applicants identify a financial sponsor in the United States.

“Parole, for many reasons, is not the ideal humanitarian protection pathway,” Zak continues. “It doesn’t provide the same benefits upon arrival in the U.S. It doesn’t provide a pathway to permanent status. It’s quite restrictive and discretionary in terms of who is actually eligible.”

Still, it’s an important tool. It is more inclusive than the other visas available specifically to Afghans, and it’s faster than the other options too.

As President Joe Biden marked the end of America’s 20-year war in Afghanistan, he said, “We will continue to work to help more people leave the country who are at risk.” Until the immigration bureaucracy can quickly and effectively process the vulnerable Afghans stranded in the Taliban-controlled country, that promise will go unfulfilled.

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It’s talk of lockdowns, mask mandates, and vaccines this Monday with Matt Welch, Katherine Mangu-Ward, Peter Suderman, and Nick Gillespie. Deja vu? Nope, just the omicron variant. The editors also opine on school curriculum and Cyber Monday, all on today’s Reason Roundtable.

2:18: How is the world reacting and how should the U.S. react to the new COVID-19 variant, omicron?

26:11: Weekly Listener Question: Starting this fall, students across the 23-campus California State University system are required to take an ethnic studies course in order to graduate. It’s a result of A.B. 1460 which Gavin Newsom signed into law in August 2020. Students have a range of choices covering the historically disadvantaged points on the ethno-racial pentagon. However, all of these courses hew closely to a single state-defined model, so the course outcomes are largely the same. What’s your take on a requirement that all graduates of a public university system take a specific course? Does your opinion depend on the content of the course, and if so, where do you draw the line? What’s your opinion on the curriculum?

37:51: Reason Webathon details!

44:52: Thoughts on Cyber Monday, and the internet overall.

52:51: Media recommendations for the week.

This week’s links:

• “Omicron Is Coming. The U.S. Must Act Now,” by Zeynep Tufekci
• “California State University now requires ethnic studies,” by Mikhail Zinshteyn
• “‘Woke Racism’ Has Betrayed Black America” (video)
• “A Worrisome New COVID-19 Variant Identified in South Africa,” by Ronald Bailey

Send your questions to roundtable@reason.com. Be sure to include your social media handle and the correct pronunciation of your name.

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Music: “Angeline,” by The Brothers Steve

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On Wednesday, the Supreme Court will hear oral argument in Dobbs v. Jackson Women’s Health Organization, in which the justices will reconsider the extent to which the Constitution protects a woman’s right to terminate her pregnancy.

Because the law in question is incompatible with the “undue burden” standard as articulated in Casey and subsequent cases, much of the briefing focuses on whether Roe and Casey were correct as an original matter, and (if not) the extent to which principles of stare decisis counsel upholding, modifying, or overturning those decisions. I suspect such questions will dominate the oral argument on Wednesday.

Some Pro-Life advocates have more more ambitious aims. They argue not only that Roe was wrong as an original matter, but also that the Fourteenth Amendment, properly interpreted, protects unborn life and prohibits abortion. This is the argument made in this amicus brief filed in Dobbs on behalf of John Finnis and Robert George and this Finnis article in First Things. This was also an argument made by Texas in Roe, but not one that has ever attracted even a single justice’s vote at the Supreme Court.

Last month, I was asked to debate this question with Josh Hamer by the University of Chicago student chapter of the Federalist Society and UChicago Law Students for Life. It was a fun event in front of a packed house. The remainder of this post  (after the break) summarizes my argument for why the Fourteenth Amendment does not prohibit abortion.

In order to argue that the 14th Amendment prohibits abortion, one needs to establish two separate propositions: 1) That the unborn are “persons” within the Fourteenth Amendment; and 2) That the failure of a state to prohibit abortion constitutes a denial of either Due Process or Equal Protection. Both are necessary to sustain the argument, but in my view, the Constitution’s text, structure and history do not support either.

Let us start with the text. The 14th  Amendment extends Due Process and Equal Protection to all persons. Privileges and Immunities, on the other hand, are only extended to citizens, and only those “born or naturalized in the United States” are citizens. As most originalists believe it is the P-or-I clause that is the source of substantive rights under the 14th Amendment, an originalist could stop here and conclude that the 14th Amendment does not extend any substantive rights to the unborn.

Setting aside the P-or-I question does not help much, as there is little in text or history to suggest that the unborn are persons within the meaning of the Constitution. The term “person” is used throughout the Constitution, including elsewhere in the 14th Amendment, and regularly in ways that can (and have always) only applied to those already born, such as Section 2 of the 14th Amendment, which bases apportionment on “the whole number of persons,” and makes reference to an individual’s age, which has always been counted from birth, not conception.

Some counter that if “persons” is a capacious enough term to include corporations, then it can include the unborn as well. This counter fails on two fronts. First, corporations are not considered persons for all constitutional purposes, and second (as Ed Whelan notes here), the reason for sometimes considering corporations to be persons is because (as the Supreme Court has explained) corporations “are merely associations of individuals united for a special purpose.” Accordingly, where denying constitutional rights to a corporation would require denying rights to a collection of individuals, those rights are protected, but otherwise they are not (which is why, for instance, not all rights protected by the 14th Amendment apply to corporations).

Yet even if one rejects these concerns, and concludes that the unborn are persons for purposes of the the Due Process and Equal Protection clauses, this still does not establish that states have a constitutional obligation to prohibit abortion.

Let’s start with Due Process. There is zero evidence that this clause was ever understood to prohibit abortion, or any other private conduct. Unlike the 13th Amendment, the 14th Amendment only applies to state action (and, as the 13th Amendment shows, the authors of the Reconstruction Amendments knew how to draft amendments to reach private conduct). So privately performed abortions are not constitutional violations. Further, even if one sets aside the state action concern, and further assumes that the clause protects substantive rights, the Due Process Clause of the 5th Amendment was never interpreted or understood to impose any limitations on abortion within the District of Columbia or federal territories, even though all persons were subject to Due Process protections as against the federal government since the ratification of the Fifth Amendment.

If Due Process is a non-starter, is there are an argument that failing to prohibit abortion violates Equal Protection? The argument here would be that protecting born persons from private violence while failing to protect unborn persons violates each state’s obligation to ensure equal protection of the laws. This argument seems more plausible on its face. It is not subject to the state action objection, nor does the federal government’s failure to limit abortion prior to the 14th Amendment’s ratification matter much as the 5th Amendment contains no Equal Protection clause. But while the argument here is more plausible, it still fails.

Even assuming that the unborn are persons within the Equal Proteciton clause, even as they are not persons for other parts of the 14th Amendment, there is a conspicuous problem that few states have ever treated abortion as fully equivalent to intentional homicide.  Finnis and George note in their brief that the history of state restrictions on abolition in the 19th century is significantly greater than Justice Blackmun suggested in Roe (and that point is well taken).  Yet even under their account, feticide was often not treated as the equivalent of intentional homicide (particularly prior to quickening, which was often treated as a misdemeanor, if prohibited at all). That is, states rarely adopted laws to protect the unborn equally with other persons.

Further, while many states considered and revised their abortion laws in the middle of the 19th century, both before and after the drafting and ratification of the 14th Amendment, there is no evidence that any of these debates or legal enactments were influenced in the slightest by a belief that the 14th Amendment (or principles of equal protection more generally) required treating feticide and homicide as equivalent actions, and they cite no evidence that any political figure or commentator thought that state failure to prohibit abortion in the late 19th century constituted a violation of the 14th Amendment. The propriety of abortion was a highly salient policy question in the post-bellum period, and yet no one sought to connect this question to the 14th Amendment, or to argue that the failure to treat feticide as equivalent to homicide was a constitutional violation.  The absence of a single dog barking, in any state, is more than conspicuous.

The lack of any 19th century support for this reading of the Equal Protection clause is even more conspicuous because such a reading would greatly distort our constitutional structure. Most questions of life and death, and the extent to which actions that harm or kill others should be criminalized, are questions left to the states. Most states at this point have adopted the Uniform Definition of Death Act, but this is a choice the Constitution vests with the states, as is the choice to decide waht sorts of acts constituted permissible killing (such as self-defense) and what acts do not. Within our constitutional system, different states can (and always have) defined the line between life and death, what actions constitute homicide, when killing may (or may not) be permissible, and so on. The liberty to make these choices in line with state preferences was not obviated by enactment of the 14th Amendment. Individual state answers to these questions have often converged, but due to the choices of policymakers in each state, and not federal dictate.

Note that the Finnis-George argument is not simply that section 5 of the 14th Amendment gives Congress the power to limit or prohibit abortion (a question I addressed here). Rather, their argument is that the 14th Amendment itself requires states to prohibit abortion — to provide the unborn at all stages of development “equal protection of the laws.” This argument not only lacks grounding in text, history or structure — for the reasons I have tried to sketch briefly above — it would also require a dramatic degree of federal judicial superintendence of state law and policy making to enforce. As they note, under their argument, “state homicide laws would need to forbid elective abortion,” and this requirement would need to be enforced by courts in some fashion. Finnis and George suggest this could be done easily with little disruption, but their cursory argument on this score actually demonstrates the opposite, as even the “customary remedies” they propose require courts to rewrite state laws and mandate their enforcement.

In Federalist No. 45, James Madison wrote that the reserved powers of the states “extend to all objects which, in the ordinary course of affairs, concern the lives, liberties, and proprieties of the people, and the internal order, improvement, and prosperity of the State.” However much the ratification  of the 14th Amendment curtailed these powers and rebalanced our federal system, it did not make abortion unconstitutional nor did it require states to treat all abortion as homicide. No justice has (as yet) ever held otherwise, and no justice who considers himself or herself bound by the original public meaning of the 14th Amendment ever should.

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Early in the COVID-19 pandemic, belated and strangely selective U.S. restrictions on international travelers created the appearance of doing something without having much of an impact on disease transmission. The Biden administration’s response to the omicron variant has been notably swifter, but it still seems unlikely to work as advertised.

Last Wednesday, the South African government shared information about the omicron variant of the coronavirus, which features mutations that suggest it may be even more contagious than the delta variant. It is still not clear whether that is actually true, whether the new variant is more likely to cause severe symptoms, or whether vaccination is less effective against it than it is against earlier iterations of the virus, either in preventing infection or in preventing hospitalization and death.

Two days after news of the omicron variant broke, President Joe Biden announced a ban on visitors from South Africa and seven other African countries: Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, and Zimbabwe. With limited exceptions, noncitizens who were “physically present” in any of those countries during the previous 14 days will be denied entry to the United States and barred from U.S.-bound flights. The suspension will be reevaluated on a monthly basis to determine whether it is still appropriate.

The suspension did not take effect until this morning, which is the first clue that the policy is more symbolic than substantive. The travel ban “won’t even start until Monday, as if the virus takes the weekend off,” New York Times columnist Zeynep Tufekci noted yesterday. “That’s pandemic theatrics, not public health.”

Biden’s proclamation does not apply to U.S. citizens or permanent residents, which likewise is hard to justify from a public health perspective. If spending time in the countries targeted by Biden means someone may have been exposed to the omicron variant, that risk does not disappear simply because a potential carrier is a U.S. citizen or permanent resident. And if the risk can be managed through measures short of barring entry—such as testing and, where appropriate, isolation—why not apply those safeguards uniformly?

Although existing PCR tests can distinguish between omicron and other variants, Biden’s proclamation does not address screening of travelers. Under current regulations, visitors to the United States who are not fully vaccinated must present a negative result from a viral test on a sample taken no more than a day before they travel. For fully vaccinated visitors, the sample can be taken up to three days before departure.

The geographic scope of Biden’s proclamation is also questionable, since COVID-19 cases involving the omicron variant have been identified in many other places, including Australia, Belgium, Canada, Denmark, France, Germany, Hong Kong, Israel, Italy, the Netherlands, Portugal, and the U.K. “This could possibly be the tip of the iceberg,” Dutch Health Minister Hugo de Jonge told reporters yesterday. NPR notes that “one of the identified cases of the omicron variant in Belgium had no contact or travel with any nations in southern Africa, suggesting community spread could already be taking place.”

This is starting to look like a recapitulation of what happened at the beginning of the pandemic, when many countries imposed travel restrictions after the coronavirus already was spreading locally. According to modeling by researchers at Northeastern University, for instance, New York City may have had more than 10,000 COVID-19 infections by March 1, 2020, seeded primarily by European travelers. That was 10 days before then-President Donald Trump announced restrictions on travel from Europe. The prospect that Biden’s reaction, although much faster, will be too little and too late to be effective seems especially likely if the omicron variant proves as contagious as scientists fear.

“There is very little utility [from] these kinds of bans,” Saad Omer, director of the Yale Institute of Global Health, told NPR. “If the [aim] is to prevent the variant from coming in, it really doesn’t make sense to exempt countries where it has been identified and that [have] even more direct flights than southern Africa….Unfortunately, from what we know about the epidemiology of SARS-CoV-2 and the epidemiology of this variant, the horse has probably left the barn.”

Israel, Japan, and Morocco have responded to the new variant by banning all foreign visitors. Morocco’s two-week ban includes citizens, while the two other countries are excluding foreign nationals. “Unvaccinated Israelis will have to self-quarantine for seven days,” The New York Times reports, while “returning vaccinated Israelis will be tested upon landing and must self-quarantine for three days, pending results of another P.C.R. test.” Other governments are banning travelers from specific countries. Australia said it was delaying a plan to resume the admission of international students, skilled migrants, and visitors from Japan and South Korea.

The World Health Organization (WHO), meanwhile, is warning that such restrictions could cause more harm than they prevent. “Travel restrictions may play a role in slightly reducing the spread of COVID-19 but place a heavy burden on lives and livelihoods,” WHO’s regional director for Africa, Matshidiso Moeti, said yesterday. “If restrictions are implemented, they should not be unnecessarily invasive or intrusive, and should be scientifically based.”

Research on the effectiveness of international travel restrictions in curtailing the spread of COVID-19 and other contagious diseases has generated mixed results.

A review published by the Journal of Emergency Management in early 2020 found “minimal evidence” that travel bans decreased the spread of severe acute respiratory syndrome, Middle Eastern respiratory syndrome, Ebola, or Zika. The authors emphasized the “urgent need for additional research to inform policy decisions on the use of travel bans and other control measures.”

An April 2020 study published in Science found that “the travel quarantine of Wuhan delayed the overall epidemic progression by only 3 to 5 days in mainland China.” According to the researchers’ modeling, the quarantine “had a more marked effect on the international scale, where case importations were reduced by nearly 80% until mid-February.” But the study indicated that the quarantine’s impact was not sustained and that restrictions on travel to and from China did not have a large additional effect.

“The model indicates that although the Wuhan travel ban was initially effective at reducing international case importations, the number of imported cases outside mainland China will continue to grow after 2 to 3 weeks,” the authors reported. “Furthermore, the modeling study shows that additional travel limitations (up to 90% of traffic) have only a modest effect unless paired with public health interventions and behavioral changes that can facilitate a considerable reduction in disease transmissibility.”

A 2021 systematic review of 26 studies in BMJ Global Health found “a high level of agreement” that domestic travel restrictions in China “led to important changes in the dynamics of the early phases of the COVID-19 pandemic.” Based on 13 studies of international restrictions, the authors concluded that limits on flights to and from China “may have led to additional reductions in the number of exported cases.”

A 2021 BMC Public Health study based on data from Hong Kong concluded that “complete border closure”—a far cry from the current U.S. policy, but similar to what Morocco is now doing—”remained an effective measure” to reduce cases and deaths “even in the presence of established local transmission.” Another study published this year in the same journal focused on Australia, which closed its borders to all nonresidents on March 20, 2020. “While travel bans lowered the number of COVID-19 importations overall,” the researchers concluded, “the effectiveness of bans on individual countries varies widely and directly depends on the change in behaviour in returning residents and citizens.”

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“In the event, hopefully unlikely, that updated vaccinations or boosters are needed to respond to this new variant, we will accelerate their development and deployment with every available tool,” said President Joe Biden at a White House press conference today. “My team is already working with officials at Pfizer and Moderna and Johnson & Johnson to develop contingency plans for vaccines and boosters if needed. I will also direct the FDA [Food and Drug Administration] and CDC [Centers for Disease Control and Prevention] to use the fastest process possible without cutting any corners for safekeeping to get vaccines approved and on the market as soon as possible if needed.”

Vaccine makers Pfizer/BioNTech, Moderna, and Johnson & Johnson have all announced that they are already working on updated vaccines aimed specifically at the omicron coronavirus variant identified last week.

The FDA is infamous for dawdling over the authorization of new vaccines. But earlier this year, the agency outlined the process it would adopt for speeding up the evaluation and approval of any COVID-19 vaccines updated to immunize against emerging variants. That process is similar to how the agency annually approves seasonal influenza vaccine formulations without requiring lengthy clinical trials.

Instead of conducting months-long clinical trials involving tens of thousands of participants, vaccine makers will test their modified coronavirus vaccines by injecting them into a small cohort of a several hundred volunteers. If the modified vaccines are safe and effective, that is, they generate a robust immune response to the variant coronavirus similar to the earlier versions of the vaccines; the FDA will then authorize their distribution.

In the meantime, many researchers believe that booster shots of the current COVID-19 vaccines will offer some protection against the omicron variant.

Disclosure: Earlier this month, I boosted my Moderna shots with a Pfizer inoculation.  

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Alice Sebold’s bestselling 1999 memoir Lucky tells the story of a young woman raped by a stranger while attending Syracuse University. In the book, the rapist is caught and convicted. After writing about the experience, Sebold went on to write the bestseller The Lovely Bones, a fictional account of a teenage girl raped and killed. But last week Anthony Broadwater, the man who served 16 years in prison for raping Sebold, was exonerated.

Timothy Mucciante, a producer working on a film adaptation of Lucky, was fired after raising questions about inconsistencies in Sebold’s story. Mucciante, who has a legal background, started reviewing the police files; he became even more troubled by discrepancies between the memoir and the facts of the case, to the point where he “couldn’t sleep.” Mucciante ended up hiring a private investigator to investigate further, and the P.I. broke the case. Broadwater’s conviction turns out to have rested on shaky evidence: Sebold had had trouble identifying her assailant—she had initially picked a different man out of a lineup—and the only forensic evidence was a form of hair analysis that the government now considers junk science. Even at the time, the expert witness could only say that the attacker’s hair was “consistent” with Broadwater’s, not that it definitively was his hair.

Broadwater was placed on the New York Sex Offender Registry after his 1999 release, and he remained on it until a few days ago. His case starkly highlights the needless cruelty of sex offense registries.

Broadwater married after prison, but he never had children; he recently told the Syracuse Post-Standard that this was because he didn’t want them growing up with a father with a rape conviction. Meanwhile, the newspaper notes, he was “turned away from countless jobs and educational opportunities over the years for one simple fact: he’s a convicted rapist on the sex offender registry.” This story is familiar to the nearly one million Americans on such registries, who are well-aware that the stigma extends beyond them to their families and all those close to them. Every registrant’s photo, address, and crime are publicly posted, creating inescapable infamy and extremely limited job opportunities.

So Broadwater essentially served two sentences: one in prison, and one on the registry after his release. In New York, where Broadwater was convicted and still resides, a pending Clean Slate bill would automatically expunge criminal records after three years for misdemeanors and seven for felonies, to help those with prior convictions pass background checks to access more housing and employment opportunities. Yet it excludes sex offenses, a fact the literature promoting the bill prominently highlights.

But even the guilty don’t deserve this treatment. The consequences of these registries, detailed painfully by Broadwater and so many others, all kick in after those convicted have completed their sentences. The registries also include people convicted as minors, people convicted of statutory and noncontact offenses, and people with developmental disabilities, mental health struggles, or substance use disorders.

In his Syracuse.com interview, Broadwater said that he tried to take vocational classes after his release but was kicked off campus when administrators learned he was on the registry. Broadwater happened to be innocent, but even if he wasn’t, shouldn’t continuing education be available to those seeking stability and employment after being incarcerated?

Inside Higher Ed recently reported that increasing interest in racial justice has led to colleges “ramping up efforts to serve students currently or formerly in prison.” There is bipartisan agreement that this is a smart and ethical investment. I founded and co-direct such a program at St. Francis College. But these efforts, like New York’s Clean Slate bill, often exclude people on registries. And even when states or individual institutions do not query potential participants about their criminal histories, federal law requires that those on registries (unlike those convicted of nonsexual offenses) give notice to the state about their enrollment, often prompting a predictable administrative backlash.

One reason for sex offense “carve-outs” is due to myths about recidivism and who winds up on registries. Contrary to popular belief, those with sex offense convictions actually have lower recidivism rates than those convicted of most other offenses (a belief unfortunately fortified by the Supreme Court, which once mistakenly declared the sex offense recidivism rate “frightening and high“). It’s worth noting that about a third of the nearly 3,000 documented exonerations since 1989 involve sex crimes, even though only about 13 percent of people in prison are there for a sexual offense.

But data are no match for fear and emotion. These are reinforced by a cultural fixation on statistically rare but terrifying cases of stranger danger (even though the vast majority of sexual violence against both children and adults involves nonstrangers). And this, in turn, is reinforced by books like Sebold’s.

Reports have surfaced that Broadwater has been living in “windowless squalor,” unaware of his key role in Sebold’s memoir or the windfall and fame it brought to her. In The New York Times, Broadwater recalled “the years of stigma and isolation” he faced as a registrant. This post-prison treatment is not a recipe for safety or success. In fact, studies have shown that sex offense registries have not made America’s children any safer. The data also show a consistent, decadeslong decline in child sex offenses that started prior to the implementation of registries.

It is time for things to change.

Colleges should continue to lead criminal justice reform efforts, but with new offense-blind admissions welcoming all who want to learn. And our country should no longer brand anyone who has served their time as unworthy of forgiveness or a second chance.

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Writing in the Daily News, New York Mayor-elect Eric Adams is vaguely promising a kinder, gentler “stop and frisk” policing.

On the campaign trail, Adams had said that he didn’t fully oppose the concept of “stop and frisk”—the police practice stopping people with very little suspicion to make sure they aren’t carrying guns or drugs—but that he believed the New York Police Department (NYPD) had abused its authority with the mass targeting of minorities for searches. He agreed that the police had implemented “stop and frisk” in an illegal way, but he didn’t think the practice itself was entirely bad.

So how does he think it should work instead? In his Daily News article, Adams discusses an incident last week when two officers in the Bronx were shot by a suspect while they responded to a 911 call about a suspicious man with a gun. According to the NYPD, the officers approached a man matching the description they received and asked him to show his hands. The man, 23-year-old Charlie Vasquez, reportedly produced a gun and shot at the officers.

Adams’ conclusion:

The threat was neutralized. One more gun off the street. One more blow against the bad guys.

Yet there are some in our city who would say these officers should never have confronted Vasquez, that he never should have been stopped and questioned.

This is quite the straw man argument. Let’s unpack it. These two officers did not, in fact, engage in any sort of “stop and frisk” at all. They approached a man who matched a description of somebody reportedly walking around with a gun. Before the officers were in a position to determine whether he was a suspect or even to question him, the man shot at them.

Adams doesn’t indicate who, precisely, thinks the police shouldn’t have confronted or questioned Vasquez. Perhaps that’s because this wasn’t the objection to “stop and frisk.”

This is thoroughly uncontroversial policing. (Or most of it is. One of the officers might have accidentally shot the other during the confrontation.) Most people across the political spectrum want the cops to investigate a potentially dangerous person who may be up to criminal activity. The problem, as Adams well knows, is what the police actually end up doing. This isn’t what “stop and frisk” looked like in New York City at all.

It is true, as Adams notes in his opinion piece, that the courts have recognized the police power to stop and search people if they have a reasonable suspicion that said person is suspected of a crime and they believe he is armed. But in New York City, “stop and frisk” actually resulted in hundreds of thousands of annual searches of predominantly minority men who it turned out were not armed and ended up not being arrested. In a 2014 report by the New York Civil Liberties Union, only two percent of police encounters under “stop and frisk” ever uncovered weapons. At the policy’s height, NYPD officers were stopping nearly 700,000 people a year.

So why on earth is Adams attempting to use a case where a man was not even frisked—a case where the guy actually shot at police—as an example of some sort of “proper” stop and frisk? Because it’s all about the guns. Adams, just like former Mayor Michael Bloomberg, is big on gun control. He is attempting to convince New Yorkers that some form of stop-and-frisk policy will be needed to keep the community safe from armed criminals.

It is unclear exactly what change Adams thinks will give the NYPD this power without returning the city to the level of abuse that Adams himself used to oppose. (His opposition to the status quo was real—when he was a state senator, he helped craft a law that purged NYPD database of the names of innocent people they searched.) Instead we get a vague theoretical defense of stopping and frisking people in some proper way, resting on an example that doesn’t meet the normal definition of “stop and frisk.” Adams fails to ask how the police might behave when they approach someone who turns out to be innocent.

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