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The 2014 killing of Eric Garner by a New York City police officer is an example of how enforcement of even petty laws (in this case, tobacco taxes) can be lethal. Peddling a few loose cigarettes in defiance of the government might carry a death sentence when cops impose the state’s will. So, why are Democrats pushing for higher cigarette taxes which will fuel an even larger black market and more confrontations with members of the public who seek relief from the government’s endless demands? That question demands an answer as New York City prepares for a new inquiry into Garner’s death.

“Millions of Americans who smoke could soon see an increase in their prices, as Democrats target tobacco and nicotine to help finance their $3.5 trillion economic package,” the Washington Post reported last month. 

The hike would have an even bigger effect than supporters suggest, since it also elevates state tobacco taxes.

“When states tax tobacco products by price, the tax on the product will pyramid since the federal tax is levied at the manufacturer level and the state tax is levied at distribution level,” explains Ulrik Boesen for the Tax Foundation. “In effect, the state tax base includes the federal tax and becomes a tax on a tax.”

Proponents of the scheme hope it will raise $100 billion to fund the (thankfully) stalled big-government bill. But they also claim higher taxes will pressure nicotine fans to quit (and there goes that revenue!).

“The record is clear that there’s a stunning correlation between increased cigarette prices and reduced consumption over the decades, with federal and state tax hikes on tobacco playing a key role,” insists Marie Cocco, a health policy flack. She claims increasing the government’s take will “raise revenue, reduce tobacco use and, over time, holds the potential to save billions in health care costs.”

Maybe higher taxes do correlate with lower tobacco use. They definitely correlate with vigorous black markets patronized by customers looking for prices that haven’t been sent through the roof by the government’s appetite.

“In 2018, New York was the highest net importer of smuggled cigarettes, totaling 53.2 percent of total cigarette consumption in the state,” notes the Tax Foundation’s Boesen. “New York also has one of the highest state cigarette taxes ($4.35 per pack), not counting the additional local New York City cigarette tax ($1.50 per pack).”

Eric Garner was a New Yorker who had been arrested multiple times for engaging in the lucrative business of selling “loosies“—smuggled cigarettes peddled individually to people seeking relief from high taxes. 

“The tax went up, and we started selling 10 times as much,” one illegal vendor told The New York Times in 2011 during the reign of notoriously intrusive Mayor Michael Bloomberg. “Bloomberg thinks he’s stopping people from smoking. He’s just turning them onto loosies.”

Eric Garner was killed by Officer Daniel Pantaleo using an illegal chokehold, but he was targeted because the cops thought he was engaged in his usual underground trade. While reporting in 2014 on protests against police brutality after Garner’s murder by police, the BBC acknowledged that “For some, however, another party bears some responsibility in Garner’s death—an out-of-control nanny-state government attempting to enforce a prohibition on the sale of untaxed cigarettes.”

Ultimately, all prohibitions, mandates, laws, and taxes are statements by lawmakers that here is an issue over which the government is willing to use violence to enforce compliance. That violence might be deployed to stop murderers, or it can be wielded in an effort to prevent people from selling loose cigarettes. Historically, high tobacco taxes have always resulted in a large number of people seeking to evade the law. Remember, more than half of the cigarettes sold in New York are smuggled; that means a tax hike inevitably increases the ranks of potential victims of state violence.

“On the opening day of law school, I always counsel my first-year students never to support a law they are not willing to kill to enforce,” Yale Law School’s Professor Stephen L. Carter wrote in 2014. “I wish this caution were only theoretical. It isn’t. Whatever your view on the refusal of a New York City grand jury to indict the police officer whose chokehold apparently led to the death of Eric Garner, it’s useful to remember the crime that Garner is alleged to have committed: He was selling individual cigarettes, or loosies, in violation of New York law.”

This caution can be applied to all sorts of state intrusions into people’s lives, of course. From drug laws to gun restrictions to zoning rules, government dictates are ultimately enforced by people employed to threaten, hurt, and even kill those who won’t comply. All sorts of mandates and prohibitions inflicted on society by lawmakers from both major political parties rely on the threat of force.

But high tobacco taxes are so closely linked to huge black markets that it’s impossible to pretend that the proposed tax hike in the spending bill won’t result in massive noncompliance. And that means more enforcement efforts and more conflict. So, why are congressional Democrats so committed to creating an unknown number of new Eric Garners by massively increasing tobacco excise taxes? That question can’t be ignored as New York City readies for an inquiry into Eric Garner’s death that will begin October 25.

“As you know, in 2019, Daniel Pantaleo was finally fired because of killing my son with a chokehold, and I’ve fought for five years for this to happen,” Gwen Carr, Garner’s mother, commented during a recent hearing. “This didn’t happen because of the police department or the de Blasio administration, it happened because I just fought tooth and nail.”

Maybe the inquiry will help to settle questions over the death of Eric Garner, though the record of law enforcement taking responsibility for its actions isn’t good. But lawmakers also need to take responsibility for what they want enforced. 

Here is a hint as to how to avoid more Eric Garners in the future: Don’t keep driving people to the black market and creating confrontations with police by hiking taxes beyond the public’s willingness to pay.

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10/22/1915: Hadacheck v. Sebastian argued.

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The Industrial Revolution gets a bad rap in popular histories, which generally portray it as a time of worker exploitation and environmental degradation. The nightmare only came to an end, we’re told, thanks to state interventions pushed by high-minded, far-sighted reformers.

Adding a more balanced understanding to this bleak picture is the Industrial Revolutions podcast from David Broker, who charts the changes to society wrought by mechanization, mass production, and scientific advancement. The story Broker tells is wide-ranging, with episodes covering everything from railroads to romantic literature.

We learn that factory employment was dangerous, but also that it offered an escape from the exploitative guild systems of old. Cities in the 19th century, while foul by modern standards, were still magnets to immigrants attracted by the promise of higher urban wages and quality of life.

Saintly reformers of the era, be they bureaucrats or enlightened industrialists, were addressing real problems, yes. Yet Broker does a good job of showing just how invasive and paternalistic many of their schemes were. If you’re interested in how human beings went from a bunch of poor farmers to a species that has enough leisure time to produce and consume podcasts, this is the show for you.

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British Justice Minister David Wolfson said female inmates who refer to transgender inmates by the wrong pronoun could face extra prison time. Wolfson said that those who make an innocent mistake won’t be punished but those whom guards believe deliberately refer to a trans woman as he/him could be punished under rules barring “threatening, abusive or insulting words or behavior.”

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This evening, the Heritage Foundation and the C. Boyden Gray Center for the Study of the Administrative State at Antonin Scalia Law School hosted a night to remember. We celebrated Justice Thomas’s thirtieth anniversary on the bench. It was truly a star-studded affair.

First, the Honorable C. Boyden Gray presented the inaugural Justice Clarence Thomas First Principles Award to Judge Laurence Silberman. I didn’t know how instrumental Silberman was to Thomas’s appointment to the D.C. Circuit, and later the Supreme Court.

Second, former White House Counsel Don McGahn introduced Senator Mitch McConnell. I did not know that McConnell wrote his law review student note on the judicial confirmation process. McConnell also joked that we should appoint more judges who sit in the bathtub during their confirmation votes. Thomas bellowed a hearty laugh.

Third, the highlight of the night were remarks from Justice Thomas. He was absolutely beaming with happiness. The room was full of his former clerks–or as he calls them, his “kids.” Many of his clerks became federal judges, and served in the highest ranks of government. Earlier in the day, many of his former clerks spoke on several panels about Thomas’s jurisprudence.

The reception was also packed with luminaries. Attorney General Meese was present, and he was sharp as ever. He vigorously applauded when McConnell assailed Roe v. Wade. (I think Meese is a fairly good litmus test of the Reagan revolution). And Judge James Buckley walked into the reception and had a glass of wine. Yes, the Buckley from Buckley v. Valeo. I don’t get star-stuck easily, but I got star-struck when I shook Judge Buckley’s hand. I mentioned that I always teach his case in First Amendment, and he made a comment about the partisans that tried to shut him down. What a great American.

Kudos to John Malcolm and Jenn Mascott, as well as everyone at Heritage and the Gray Center, for organizing such an amazing event.

You can watch the event here:

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Newly identified COVID-19 cases in the United States, which rose dramatically this summer, have fallen sharply since early September. Hospital admissions involving people who tested positive for COVID-19 likewise have dropped precipitously. As of yesterday, the seven-day average of daily deaths, a lagging indicator, was down by 22 percent since September 23, per Worldometer’s numbers.

You can start to see why many observers think the worst of the pandemic is behind us. The worst so far, measured by the seven-day average of daily deaths, happened in mid-January, when that number exceeded the previous record set in April 2020.

Even at the peak of the most recent COVID-19 surge, daily deaths were substantially lower than the numbers seen last winter or in the spring of 2020. While the seven-day average of daily new cases rose 14-fold this summer, daily deaths rose eightfold. Last fall and winter, by comparison, daily new cases rose sevenfold, while daily deaths rose fivefold. And in the spring of 2020, deaths rose faster than reported cases, although coronavirus testing was woefully inadequate at that point, meaning that a larger share of infections would have been missed.

The widening gap between case and death trends is what you would expect in a country where a large and growing share of the population is protected against the worst consequences of COVID-19 by vaccination, naturally acquired immunity, or both. Two-thirds of Americans 12 or older are fully vaccinated, while 77 percent have received at least one dose. Americans 65 or older, who face a much higher risk of dying from COVID-19 than younger cohorts, are especially likely to vaccinated: The rates for that age group are 85 percent and 96 percent, respectively. So it is not surprising that the case fatality rate (CFR)—deaths as a share of reported cases—resumed its downward trend after rising slightly in the first few months of the year.

CFR calculations should be viewed with caution, since the denominator depends on testing practices. But the nationwide CFR was 1.62 percent as of yesterday, more than two-fifths lower than the CFR in October 2020, less than half the CFR at the beginning of August 2020, and roughly a quarter of the CFR in mid-May 2020. Even allowing for the expansion of testing in 2020, these numbers indicate that COVID-19 is less deadly than it was 18 months ago, a year ago, or even a few months ago.

Two potential explanations for the CFR drop are expanded testing, which made it possible to detect a larger share of mild cases, and a younger, healthier mix of patients. A preprint study published in December addresses those possibilities by looking at age-stratified outcomes and focusing on hospitalizations, which “should be less influenced by testing capacity than confirmed cases.”

Although “testing increased between the first and second waves,” the authors say, that “does not explain away these waves.” They report that “age-stratified hospitalization fatality rates improved substantially between the first and second wave in the national data (improving by at least 27%), but did not improve between the first and second wave in Florida (worsening by at least 2.9%).” By December 1, however, “both Florida and national data suggest significant decreases in HFR since April 1st—at least 17% in Florida and at least 55% nationally in every age group.”

As the researchers note, those findings are consistent with the hypothesis that improvements in COVID-19 treatment help account for the falling CFR. Widespread vaccination, which did not happen until after the period covered by that study, should now be helping to drive the CFR down further. “For all adults aged 18 years and older,” the Centers for Disease Control and Prevention (CDC) reported based on data through August 2021, “the cumulative COVID-19-associated hospitalization rate was about 12 times higher in unvaccinated persons.” It estimates that unvaccinated patients are 11 times more likely to die from COVID-19 than fully vaccinated patients.

So far these positive trends have had no discernible impact on federal COVID-19 advice or on the policies of jurisdictions inclined to follow it. Although vaccination is now authorized for all Americans 5 or older and minors face a tiny risk of dying from COVID-19 in any case, the CDC still says everyone, from toddlers to vaccinated adults, should “wear a mask indoors in public.” Officially, that advice applies to vaccinated people only if they live in “an area of substantial or high transmission,” but that description still covers nearly the entire country.

The CDC is likewise sticking with its recommendation that everyone in schools, regardless of age or vaccination status, wear a mask throughout the day, despite the lack of evidence that the benefits of that precaution outweigh the substantial burdens it imposes. Yesterday Florida’s new surgeon general, Joseph Ladapo, who opposes school mask mandates, called the evidence in their favor “very weak,” saying “there is a substantial gap between the quality of the data” and “what we’re hearing from some of our public health leadership.”

That’s a fair assessment. At the point when the CDC issued its current recommendations for schools, it was not able to cite any research showing a statistically significant relationship between mask mandates and reduced virus transmission among students. Nearly all of the studies on which it relied did not even compare schools with mandates to otherwise similar schools without them.

A CDC study published last month (i.e., after the agency was already recommending masks for all students) found that Arizona schools where masking was optional were more likely to see COVID-19 outbreaks. But the researchers did not control for vaccination rates or other precautions that schools with mask mandates may have been more likely to implement, both of which could have affected the odds of an outbreak.

A recent Twitter exchange gives you a sense of how desperate the Biden administration is to support its predetermined conclusion that students should be forced to wear masks—a safeguard the Education Department views as so important that it may be mandatory under federal laws protecting students with disabilities from discrimination. “Let’s be data-driven and follow the science when it comes to protecting our students in schools,” Secretary of Education Miguel Cardona tweeted on September 27. “What does science say about the importance of masking in school?”

Cardona mentioned “a Wisconsin study,” which he said found “schools that required masking had a 37% lower incidence of COVID-19 than the surrounding community.” That gloss provoked a response from the senior author of that study, epidemiologist Tracy Beth Hoeg. “Our study is not able to give any information about the role masks played in the observed low in-school transmission rates,” she wrote. “We had no control group so don’t know if the rate would have been different without masks.”

Hoeg’s study, which was published in the January 29 issue of the CDC’s Morbidity and Mortality Weekly Report, found that “reported student mask-wearing was high” and “transmission risk within schools appeared low.” But as Hoeg noted, it is impossible to say to what extent the former explains the latter, because the researchers did not compare schools with different policies. The same is true of a Utah study that Cardona also cited. If Cardona, who claims to “follow the science,” had solid evidence that mask mandates are as vital as he claims, he would not be citing studies like these to prove a hypothesis they did not even test.

Assuming that school mask mandates have a significant impact on virus transmission, that does not necessarily mean the benefit is worth the cost, especially given the wide availability of vaccines and the extremely low infection fatality rate among children and teenagers (on the order of 0.002 percent, according to a CDC estimate). Yet the CDC acts as if the cost-effectiveness of school mask mandates is beyond serious dispute, even as it searches for evidence to support that conviction.

Let’s say the CDC is right in thinking that mask mandates in schools are a sensible precaution under certain conditions. What happens when conditions change? At what point will the CDC decide that mask mandates don’t make sense anymore?

As Reason‘s Matt Welch notes, CDC Director Rochelle Walensky seems to imagine that “universal masking” will continue even as mass vaccination of younger students proceeds. That is consistent with the CDC’s general recommendation that people should continue wearing masks even after they’ve been vaccinated. But indefinite mask mandates will eventually prove untenable, even in places where parents and school officials are inclined to trust the CDC.

By tying its mask recommendations to the level of community transmission, the CDC guarantees that its advice won’t change as long as its criteria for “substantial” spread apply, meaning that the number of new cases per 100,000 people in the last seven days is 50 or more and the test positivity rate is 8 percent or more. Currently 94 percent of U.S. counties exceed that threshold. But focusing on new cases is misleading when people infected by the coronavirus are less and less likely to die as a result. The merits of COVID-19 safeguards, including masks and vaccination, ultimately depend on how effective they are at preventing life-threatening cases rather than infections in general.

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