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A year ago, New York Gov. Andrew Cuomo was a pandemic hero. As of this writing, he is clinging to his job as calls to step down crescendo within his own party. Several women allege the Democratic governor sexually harassed them—a particularly inconvenient situation for Cuomo, considering he has publicly positioned himself as a champion for women in the #MeToo era.

The accusations deserve to be taken seriously. But they should not be considered the biggest scandal Cuomo faces. That distinction goes to his pandemic-related job performance, which resulted in so many unnecessary deaths in his state that he appears to have felt the need to obscure the record from the public.

“People value the truth,” Cuomo said in a January interview on MSNBC. “Incompetent government kills people. More people died than needed to die [of] COVID.”

Two days after that interview, New York Attorney General Letitia James revealed that the Cuomo administration had covered up the actual number of New Yorkers who died from the coronavirus as a result of Cuomo’s order requiring nursing homes to admit elderly COVID-19 patients. “COVID-19 resident deaths associated with nursing homes in New York state appear to be undercounted by [the Department of Health] by approximately 50 percent,” the report said.

According to James’ investigation, Cuomo’s administration had counted patients who contracted COVID-19 in a nursing home but died in a hospital as hospital rather than nursing home deaths. At one nursing home facility, the DOH had recorded only seven COVID-19 deaths as of August 3. But by April 18—nearly four months earlier—that same facility had reported 31 suspected COVID-19 deaths to the Office of the Attorney General.

Suddenly, Cuomo changed his tune. “Who cares?” he said during a confrontational press conference. “Died in a hospital. Died in a nursing home. They died.”

The governor doubled down in February after a top aide admitted that his administration deliberately hid the information. “We were in a position where we weren’t sure if what we were going to give to the Department of Justice, or what we give to you guys, and what we start saying, was going to be used against us, and we weren’t sure if there was going to be an investigation,” Melissa DeRosa told Dem-ocratic state legislators during a February 10 call.

Even after those remarks were leaked to the New York Post, no apology was forthcoming. “When you come up with conspiracy theories or this disinformation,” Cuomo said during a press conference, “then the worst thing you can say to somebody who lost a loved one is, ‘Maybe it didn’t have to be. Maybe there was a government issue.'”

Things got worse for the governor in March, when The New York Times revealed that Cuomo aides had deliberately altered data in an official health department report outlining the number of nursing home deaths. So much for valuing the truth.

Cuomo has said he was following federal guidance in March 2020 when he prohibited long-term care facilities from denying admission or readmission to patients who had tested positive for COVID-19, so long as they were deemed “medically stable.” But on March 29, the Society for Post-Acute and Long-Term Care Medicine urged Cuomo to retract his order. The organization cited a report in the Centers for Disease Control and Prevention’s Morbidity and Mortality Weekly Report on a devastating outbreak in a Seattle nursing home.

Cuomo refused to budge until May, when he specified that elderly COVID-19 patients needed to test negative before being admitted to nursing homes. In the intervening month, New Jersey and Pennsylvania issued their own versions of Cuomo’s order and recorded their own grizzly elder death tolls.

No American leader got it exactly right in the early days of the pandemic. Even Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, has admitted that his initial advice against general use of face masks was largely grounded not in science but in concerns about a shortage of personal protective equipment for health care workers.

Yet Cuomo not only has refused to take responsibility for the nursing home fiasco; he has continued to impose bad COVID-19 policy on his state. In December, he put New York medical providers in a vaccine double bind, forcing them to throw away expired vaccines (and face fines of up to $100,000) or give nearly expired vaccines to people who were not on the priority list (and face fines of up to $1 million).

Cuomo relaxed those rules only after hospitals began trashing doses nearing expiration to avoid the threatened million-dollar fines. And no, he didn’t apologize for that bad idea either. More than 7,000 people in New York reportedly died from COVID-19 between mid-December, when the first vaccine made its debut, and late January. Some of those lives might have been spared had the discarded doses found their way into New Yorkers’ arms.

Despite all this, many prominent people and institutions, desperate for a competent foil to then–President Donald Trump, spent the last year celebrating Cuomo as the leader America needed.

Beginning in March, CNN host Chris Cuomo, the governor’s brother, conducted softball interviews with him in which the most adversarial exchanges pertained to the family tomato sauce recipe, “ill-fitting” fashion choices, which sibling their mom likes best, and whether the governor’s nose is so colossal that it requires an extra-large cotton swab for COVID-19 testing. In October, the governor signed a contract with Random House to write American Crisis: Leadership Lessons From the COVID-19 Pandemic. The next month, Hollywood gave him the International Emmy Founders Award for his “masterful use of television to inform and calm people around the world.”

The tide seems to be turning. On February 19, Rep. Alexandria Ocasio-Cortez (D–N.Y.) said she supported “a full investigation into the Cuomo administration’s handling of nursing homes during COVID-19.” Had his allies been interested, they could have read Newark Star-Ledger columnist Paul Mulshine’s report on the nursing home fiasco, published in May 2020. But why let the truth get in the way of a feel-good story? One reason comes from Cuomo himself: because “incompetent government kills people.”

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In Bulverde, Texas, Brian Johnson decided his daughters Indiana, 10, and Phoenix, 8, should learn about business and start saving money. During the February snow storm that shut down much of the state, the girls gave the extra eggs laid by chickens they raise to neighbors. After it was over, their father set up a bank account and the girls began selling the eggs and saving their money. Well, until someone ratted them out and they got a cease-and-desist letter from the city. “The selling of chicken eggs or any other animal products produced on the property, from a residentially zoned lot is a violation of city ordinance, regardless of the age of the person conducting the sales,” the city said in a statement sent to a local TV station.

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In a joint address to Congress on Wednesday night, President Joe Biden outlined what can accurately be described as the most expensive and expansive agenda in modern American history.

Biden has proposed $6 trillion in new spending since taking office and has already signed $1.9 trillion in emergency spending related (loosely) to the COVID-19 pandemic. He wants to follow that with a huge infrastructure bill, a $15 national minimum wage, Buy American rules that offer protectionism for unions, and new entitlement programs—including a new child subsidy program for parents and a permanent expansion of Obamacare health insurance subsidies. He promised to raise taxes on the wealthy and to sic the IRS on rich people who don’t pay “their fair share.”

A few minutes after Biden wrapped up his remarks, Rep. Jamaal Bowman (D–N.Y.) said that’s not nearly enough.

“The proposals that President Biden has put forward over the last few weeks would represent important steps—but don’t go as big as we’d truly need in order to solve the crises of jobs, climate, and care. We need to think bigger,” said Bowman, who was speaking on behalf of the Working Families Party, a progressive third party that frequently caucuses with Democrats.

Thinking bigger, in some cases, means pushing for greater accountability from law enforcement and other individuals in the public sector. Biden made some vague promises about that during his remarks but Bowman was right to be more pointed in specifically calling “to end qualified immunity,” the court-created legal doctrine that often shields police from civil liability when they harm civilians.

“Whether you’re a clerk, a teacher, or a member of congress you should be held accountable for your actions. Police cannot be above the law,” Bowman said. That’s a marked and welcome departure from the Biden administration’s lukewarm perspective.

Mostly, however, going bigger means spending a lot of money on just about everything. It means passing the Green New Deal to combat climate change, Bowman said. But not just that. “We need a Green New Deal for Public Housing,” he said. “We need a Green New Deal for Cities…and we need a Green New Deal for Public Schools.” The Green New Deal might not succeed as a piece of legislation or as a template for ending global warming, but it certainly has succeeded as a branding exercise.

More than anything else, Bowman’s response illustrated the extent to which the progressive image for America is one in which government has greater control over just about every aspect of life.

“Every part of our society must become part of the answer,” he said, “because this crisis is urgent.” It’s not entirely clear which supposed crisis he was referencing.

Biden has already embraced the governing-by-crisis approach and has adopted other progressive ideas into his first-year agenda. Like Bowman, Biden called for passage of the Protecting the Right to Organize (PRO) Act, a union-backed bill that would kill state-level right-to-work laws and force workers in some professions to contribute to unions whether they want to join or not. Like Biden, Bowman suggested that billionaires should be targeted with higher taxes because they’ve seen their wealth increase during the pandemic.

Still, progressives are unlikely to be satisfied with Biden’s agenda no matter how aggressively profligate it gets. That’s in their nature. What’s more worrying is how far they’ve already managed to push Biden—with the notable exception of criminal justice reform—and how much more they intend to squeeze out of him.

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In President Joe Biden’s address to Congress tonight, he repeated his intention to, in a manner still unspecified, ban so-called “ghost guns” made from kits that have no serial numbers and which you can buy without the background checks required in buying assembled guns from licensed dealers.

In a recent Reason TV video, Cody Wilson, a major entrepreneur in this currently legal space with Defense Distributed, guesses that the method Biden will go for is requiring serialization and background check for buying more of the component parts that go into making these finished homemade weapons.

This would mean that people dedicated to anonymously making homemade guns would have a harder time acquiring materials, yet the proliferation of home milling tools and software to guide them means that while Biden might be able to make home fabricating harder and more expensive (depending on the price of aluminum blocks), he cannot eliminate it. At a certain point, the feds could complicate the homemade scene such that people go back to just buying on the black market, which is stocked with non-homemade weapons.

California is ahead of Biden’s game in banning ghost guns, having since 2018, as the Center for American Progress summed up, “require[d] all self-assembled firearms to contain a unique serial number from the California Department of Justice. Furthermore, owners of newly serialized firearms must provide identification information to the California Department of Justice. Under California law, self-assembled firearms cannot be sold or transferred.”

At the same time, California has remained a place media calls on to scare you about the still growing threat of ghost guns, such as the claim made to ABC News last year by Carlos A. Canino, the special agent in charge of the A.T.F. Los Angeles field division, that “Forty-one percent, so almost half our cases we’re coming across, are these ‘ghost guns.” Last year was two years after California banned them in just the way Biden plans to. Not a promising sign for the efficacy of his bold initiative.

Various cities have reported scary-sounding percentage increases in captured ghost guns in the past few years as the hobby has spread, though, again, one could eliminate every homemade gun and still have plenty of traditional firearms to go around for both crooks and peaceful citizens. As J.D. Tuccille and Jacob Sullum have argued at Reason, Biden’s effort might make life harder on hobbyists and conceivably make punishing someone for a crime already committed easier in some marginal cases, but it can’t possibly be expected to make a serious dent in overall gun violence. Likely it’s the only real goal is to satisfy some of Biden’s political constituents.

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Several justices on the Supreme Court are interested in reviving the nondelegation doctrine. Three justices joined Justice Gorsuch’s Gundy dissent calling for a nondelegation revival, and two other justices have expressed at least some support for the endeavor.

Precisely how to revive the nondelegation doctrine is an interesting question. There is an active academic debate on what lessons can or should be drawn from the founding era, and serious efforts to develop judicially manageable standards for implementing a limit on legislative delegation.

Two recent papers on SSRN suggest there are some lessons to be learned from the states. Given the interest in the nondelegation doctrine among VC readers, I thought I would flag these two papers.

Nondelegation in the States by Benjamin Silver.

American public law is on the precipice of a nondelegation revival. Yet scholars have largely ignored the greatest wellspring of American nondelegation law: that of the states. As a result, the nondelegation literature is badly in need of a broad and deep examination of state nondelegation. This article takes up that task by describing the kaleidoscope of contexts in which states apply the nondelegation doctrine. Significantly, state nondelegation reaches deep into public law and covers far more than the legislature-to-agency delegations that preoccupy the discussion at the federal level. This article analyzes this mess of state nondelegation jurisprudence, arguing that it can be explained coherently by two theories underlying nondelegation: the separation of powers and sovereignty. While these theories overlap to an extent, each supplies a distinct logic to nondelegation, thus motivating the doctrine’s disparate and varied applications.

Finally, the article argues affirmatively that the Supreme Court ought to consult state nondelegation jurisprudence when it revives the federal nondelegation doctrine. The states’ experience counsels important lessons for the federal doctrine. For nondelegation supporters, state nondelegation indicates that a strong doctrine may require revising vast expanses of public law, especially the separation of powers. As a result, a revived doctrine may prove difficult to administer, though in a way few have recognized. Fortunately, where the nondelegation doctrine might overreach into other areas of public law, relatively straightforward doctrinal guardrails can be established so that a strong doctrine doesn’t prove to be an obstacle to effective governance.

Decoding Nondelegation After Gundy: What the Experience in State Courts Tells Us About What to Expect When We’re Expecting by Daniel Walters (forthcoming in the Emory Law Journal).

The nondelegation doctrine theoretically limits Congress’s ability to delegate legislative powers to the executive agencies that make up the modern administrative state. Yet, in practice, the Supreme Court has, since the New Deal, shied away from enforcing any limits on congressional delegation. That may all change in the near future. In Gundy v. United States, the Court narrowly upheld a delegation, and a dissent signaled deep doubts about the Court’s longstanding “intelligible principle” standard and offered a new framework to replace it. Subsequent events strongly suggest that the Court is poised to move in the direction contemplated by the dissent in Gundy, drawing a line between policy discretion, which cannot be delegated, and authority to fill in details or find facts triggering policies, which can. Whether observers’ view of the prospect of Court-imposed limits on delegation is apocalyptic or euphoric, virtually everyone expects it to be highly consequential.

While these opinions about the nondelegation doctrine are understandable, they are ultimately speculative. This article offers a more data-driven evaluation of what implementation of the Gundy dissent’s line drawing would portend for administrative law. Using the underexamined laboratory of the nondelegation doctrine in the states, where the doctrine has always had more life than at the federal level, I show that states that adhere closely to the lines drawn by the Gundy dissent are no more or less likely to invalidate statutes passed by state legislatures than are states that adhere to the intelligible principle formulation. The lack of a relationship between doctrinal formulation and outcomes suggests we will only know whether a revolution is afoot based on what the Court actually does over a series of cases, not in what it says it is going to do. Moreover, it suggests significant limitations in the ability of the Gundy dissent’s approach to provide any ex ante guidance to Congress, the lower courts, or even future Supreme Courts about what the nondelegation doctrine prohibits—an observation that suggests significant logistical and institutional problems inherent in the entire project of resuscitating the doctrine.

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