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After Paid Leave Plan Gets Chopped, Biden Promises Revamped Spending Proposal


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Democrats appear likely to abandon plans to include an expensive new federal entitlement program—paid family leave—as they try to trim the overall cost of President Joe Biden’s “Build Back Better” plan proposal.

Biden’s plan called for a federal paid leave program that would replace up to 85 percent of a worker’s pay (with that percentage falling for higher-paid workers) for up to 12 weeks per year. Workers could access the paid leave program if they were having a baby, taking care of an elderly or sick relative, or recovering from a serious illness of their own.

There has not been an official Congressional Budget Office assessment of how much the paid leave program would cost, but a similar stand-alone proposal drawn up by Democrats in 2019 carried a $547 billion price tag over 10 years. That made the paid leave proposal one of the more expensive heaves in Biden’s proposal. Even after Democrats tried to trim the benefits by reducing the timeframe to just four weeks instead of 12, the price tag was still over $300 billion, Politico reported earlier this month.

Ultimately, the high cost is what seems to have doomed that aspect of Biden’s plan.

The problem facing Democrats right now is rooted in basic budget math of the kind that usually gets ignored in Washington. Sen. Joe Manchin (D–W.Va.) has said he is worried about the trajectory of the national debt and will not support a social spending plan that relies on more borrowing. Without his support, Democrats do not have a majority in the Senate. So the plan has to include enough revenue offsets to pay for the proposed new spending—or, at least, pay for them sufficiently to satisfy Manchin.

But Democrats keep backing away from the sorts of large-scale tax increases necessary to pay for a $3.5 trillion spending plan—like the proposed “billionaire tax” on unrealized capital gains that reportedly got axed on Wednesday. As Reason’s Peter Suderman explains, that tax was a terrible idea (and maybe even an unconstitutional one), but discarding it reveals something about the underlying negotiations over Biden’s plan:

It is certainly possible that some deal will still be negotiated, that some other tax mechanism or mechanisms will be found that can raise sufficient revenue to make the tax-and-spending math work. But even if something eventually passes, Democrats’ down-to-the-wire struggle highlights the inherent political difficulty of raising taxes, even within a party that is nominally devoted to the idea that higher taxes, especially on the rich and well-off, are a popular political good. And the reason for that difficulty is not the intransigence of tax-hating Republicans, or the existence of the Senate filibuster, but the fact that Democrats are having trouble mustering sufficient support from elected Democrats.

So, to review: Manchin won’t vote for more borrowing. Democrats can’t find the votes for big tax increases. The only remaining option, at that point, is to start hacking away at the spending side of the legislation. Which is exactly what Democrats are doing, and that’s why paid leave appears to be heading for the cutting committee room floor.

Manchin on Wednesday stressed that his opposition to new benefits was rooted in concern for the country’s long-term fiscal status, noting in comments to reporters both the nearly $29 trillion national debt and the looming insolvency of the trust funds for Social Security and Medicare. “In good conscience, I have a hard time increasing benefits—which, all of us can agree we’d love to have this and love to have that—when you can’t even take care of what you have,” Manchin said.

Here’s the real kicker for progressives: A paid leave proposal, expensive though it may be, is politically popular even among Republicans. If Sen. Kirsten Gillibrand (D–N.Y.), who has been championing the policy, were able to bring a stand-alone bill for a paid leave program to the Senate floor (along with a mechanism to pay it), it is at least theoretically possible that such a bill would pass. Sure, there would be negotiations, amendments, and arguments over it. Legislators would have to legislate, in other words. But there are almost certainly 60 votes in the Senate for some form of federal paid leave program.

Instead, there will likely be no federal paid leave program. And that’s at least in part due to the fact that Democrats are trying to cram all their big ideas into a single piece of legislation, rather than trying to find agreement for individual items and moving them one at a time.

Where does that leave Biden’s bill on the eve of the latest deadline for a Senate vote that seems nowhere close to happening? The president is supposed to meet with congressional Democrats on Thursday to present a new framework that The Washington Post promises will “win the support of all Democrats.” Meanwhile, The New York Times says the revamped plan “is likely to leave some critical issues unresolved, including how to pay for it.”

So, yeah.

One of the cardinal rules of politics—and political media, especially—is that nothing is ever as bad (or as good) as it seems. These are professions where overreacting is a way of life. That said, here’s something White House Chief of Staff (and longtime Biden confidant) Ron Klain retweeted on Wednesday night. Judge for yourself how things are going right now over at 1600 Pennsylvania Ave.

FREE MINDS

Sen. Tom Cotton (R–Ark.) penned a wildly inaccurate piece for National Review defending qualified immunity. Reason‘s Billy Binion helpfully offers some corrections:

Read the whole thing.

FREE MARKETS

How to eat for an entire year on $150—as long as your stomach can handle it:

It all started on the first day of his internship in 2014, when Dylan noticed the rollicking coasters of Six Flags Magic Mountain from the windows of his new office. Fresh out of college and something of a coaster-fanatic already, Dylan was perusing the options for Six Flags’ annual pass when he stumbled upon what might be the deal of his lifetime — for a one-time fee of $150, he could eat two meals a day, every day at the park for an entire year. Since his office was just a five-minute drive away, it was a no-brainer.

“That entire first year, I don’t think I ever went to the grocery store,” he says. “I timed it so I was able to go there during my lunch break, go back to work, then stop back for dinner on my way home.”

Over the course of seven years of eating at the Six Flags food court, Dylan claims he saved enough to pay off his student loans, get married, and buy a house. Read the whole saga in MEL Magazine.

QUICK HITS

• Facebook doesn’t make people angrier. Some people are just jerks.

• Another In-N-Out burger joint was shut down in California for being “an immediate health hazard to the public” because the location won’t check customers’ vaccine status before serving them.

• Hong Kong approved a new censorship law prohibiting content that Chinese officials believe “might endanger national security.”

• America is in desperate need of more workers, but federal officials wasted at least 400,000 visa slots during the fiscal year that ended in September.

• Next week’s gubernatorial election in Virginia could provide a post-Trump road map for the GOP.

• Hall of Fame quarterback Brett Favre repaid $600,000 in welfare he improperly received from Mississippi.

• You’re gonna need a bigger….whatever you keep scorpions in?

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Brickbat: Knit-Picking


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David and Paula Knight were dumbfounded when they received a ticket for driving in a bus lane in Bath, England. Bath is about 125 miles away from their home in Dorking, and they had not been in Bath on the day the violation happened. Then they took another look at the ticket and saw a photo from a traffic camera that was supposed to be proof of the violation. Instead, it showed a woman wearing a T-shirt with the word “KNITTER” written on it walking in the lane. Somehow her shirt had been confused with the Knights’ personalized license plate, which reads “KN19 TER.” A spokesman for the Bath council said it has withdrawn the ticket.

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Nothing Says “Free to Be Me” Like Compulsory Pansexuality

A remarkable story from the BBC, revealing a phenomenon that strikes me as utterly bizarre:

Jennie is a lesbian woman. She says she is only sexually attracted to women who are biologically female and have vaginas. She therefore only has sex and relationships with women who are biologically female.

Jennie doesn’t think this should be controversial, but not everyone agrees. She has been described as transphobic, a genital fetishist, a pervert and a “terf”—a trans exclusionary radical feminist….

Another lesbian woman, 26-year-old Chloe*, said she felt so pressured she ended up having penetrative sex with a trans woman at university after repeatedly explaining she was not interested.

They lived near each other in halls of residence. Chloe had been drinking alcohol and does not think she could have given proper consent.

“I felt very bad for hating every moment, because the idea is we are attracted to gender rather than sex, and I did not feel that, and I felt bad for feeling like that,” she said.

Ashamed and embarrassed, she decided not to tell anyone….

One woman reported being targeted in an online group. “I was told that homosexuality doesn’t exist and I owed it to my trans sisters to unlearn my ‘genital confusion’ so I can enjoy letting them penetrate me,” she wrote.

My view:

  1. People who want to have sex with you may indeed try to make you feel bad for not agreeing.
  2. “You owe it to someone to enjoy letting me penetrate you” is a very old story.
  3. It’s just not clear to me how this gives them the moral high ground.

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Fifth Circuit Rebukes FDA for Regulatory “Switcheroo” in Denying Vaping Product Applications


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In 2016 the Food & Drug Administration “deemed” electronic cigarettes, vaping pens, and other electronic Nicotine delivery systems (“ENDS”) to be “tobacco products” under the Family Smoking Prevention and Tobacco Control Act. As a consequence, all ENDS manufacturers were required to submit premarket tobacco applications (PMTAs) in order to continue selling their wares. Under the Tobacco Act, the FDA is only to approve a PMTA if it concludes approval is “appropriate for the protection of public health,” taking into account “the risks and benefits to the population as a whole.” Without a PMTA, a deemed tobacco product cannot be sold.

PMTAs are supposed to be submitted before a new tobacco product is sold, but this was impossible since the FDA’s rule applied to products already on the market. Accordingly, the FDA announced that ENDS manufacturers would have two years to prepare and submit the lengthy and detailed materials necessary for their applications before they would face the prospect of FDA enforcement. The FDA soon realized that the material and information necessary for PMTAs would be substantial, particularly because a separate PMTA is required for each product, defined quite capaciously (i.e. each package size, each flavor, each nicotine level, each delivery system, etc.). So the FDA tried to extend the enforcement deadline until 2022, but anti-tobacco groups sued, and they settled on a 2020 deadline.

The FDA ultimately received applications for over 4.8 million ENDS products from 230 companies. Needless to say, this is a bit more than the agency anticipated, and it has been working to process the applications, denying most of them. Because a PMTA denial is a death sentence, some disappointed ENDS producers have filed suit, challenging the denials and seeking judicial orders blocking FDA enforcement in the meantime.

Yesterday, the U.S. Court of Appeals for the Fifth Circuit ruled on one company’s application for a stay pending resolution of its petition challenging the FDA’s denial of its PMTAs. The court’s opinion in Wages and White Lion Investments LLC v. USFDA (WWLI) is a blistering indictment of the agency’s decision-making and evaluation of ENDS PMTAs.

In WWLI a unanimous panel granted Triton Distribution’s application for a stay, concluding that  it had demonstrated not only a strong likelihood of success on the merits, but also that it would suffer irreparable injury without a stay, and the government would not.

A key problem with the way that the FDA handled the PMTAs filed by Triton (and other ENDS manufacturers) is that the FDA based its denial of their applications on a different standard than it had told companies they have to meet. This sort of action is at the heart of arbitrary agency action, and is antithetical to principles of due process.

For years, the FDA had informed ENDS manufacturers that they would not need to conduct long-term health studies on their individual products for their applications. This only makes sense, as ENDS manufacturers only had a limited period of time to prepare their materials. Yet, on August 26 when the FDA announced it was denying PMTAs for 55,000 flavored e-cigarette products, it claimed that such studies were “likely” necessary for approval. A few weeks later, the FDA denied Triton’s applications, explaining that the key basis” for the denial, was the lack of “robust and reliable evidence” from long-term studies of the sort FDA had previously told manufacturers were unnecessary. (Triton had nonetheless committed to conduct such studies, but the FDA refused to consider that assurance.)

As Judge Oldham’s opinion makes clear, the FDA’s decision-making in denying Triton’s application is an almost textbook example of what agencies are not supposed to do. It both changed course without adequate explanation or consideration of serious reliance interests while simultaneously refusing to consider multiple relevant factors and information submitted by Triton.

Here are a few examples from Oldham’s opinion:

The FDA failed to reasonably consider Triton’s proposed marketing plan. The FDA repeatedly stated that a marketing plan is “a critical factor in[] FDA’s statutorily required determination.” Premarket Tobacco Product Applications and Recordkeeping Requirements, 86 Fed. Reg. 55,300, 55,324 (Oct. 5, 2021) (“Final Rule”); see also 84 Fed. Reg. 50,566, 50,581 (Sept. 25, 2019) (“Proposed Rule”) (“The applicant’s marketing plans . . . will provide input that is critical to FDA’s determination of the likelihood of changes in tobacco product use behavior, especially when considered in conjunction with other information contained in the application.” (emphasis added)); A.45 n.xix (“Limiting youth access and exposure to marketing is a critical aspect of product regulation.” (emphasis added)); A.45 (Premarket “assessment includes evaluating the appropriateness of the proposed marketing plan.”). Here, however, the FDA simply ignored Triton’s plan. It stated: “[F]or the sake of efficiency, the evaluation of the marketing plan in applications will not occur at this stage of review, and we have not evaluated any marketing plans submitted with these applications.”

The FDA’s excuses for ignoring the “critical factor” of Triton’s marketing plan are unpersuasive. First, the FDA says it didn’t evaluate Triton’s plan for “the sake of efficiency.” Ibid. But “efficiency” is no substitute for “reasoned decisionmaking.” Michigan, 576 U.S. at 750; see also Judulang v. Holder, 565 U.S. 42, 64 (2011) (emphasizing that “cheapness alone cannot save an arbitrary agency policy”). . . .

In a footnote Judge Oldham notes that the FDA’s failure to consider Triton’s marketing plan, and how it would control youth access, was particularly striking given that then-FDA Commissioner Scott Gottleib had identified Triton’s approach as “best practices.”

And then there are Trtiton’s reliance interests, which the FDA disregarded in the course of its regulatory “switcheroo.”

Between the Deeming Rule’s effective date and the deadline for PMTAs, the FDA held public meetings and issued guidance on how e-cigarette manufacturers could get premarket authorization. In its “final guidance,” the FDA stated that it did not “expect” that tobacco manufacturers would need to conduct long-term studies to support their PMTA. See, e.g., A.73–74; A.92; see also Nicopure Labs, LLC v. FDA, 944 F.3d 267, 282 (D.C. Cir. 2019) (“The FDA has expressed willingness to accept scientific literature reviews instead of commissioned studies in support of e-cigarette applications in appropriate circumstances.”). The FDA’s expectation did not deviate in its Proposed Rule issued before the Order or the Final Rule issued a couple weeks after the Order. See Final Rule, 86 Fed. Reg. at 55,387 (“FDA does not expect that long-term clinical studies will need to be conducted for each PMTA; instead, it expects that it should be able to rely on other valid scientific evidence to evaluate some PMTAs.”); Proposed Rule, 84 Fed. Reg. at 50,619 (similar). Many e-cigarette companies relied on the FDA’s repeated insistence that it did “not expect that applicants will have to conduct long-term studies to support an application” and did not perform or submit such evidence.

Then the FDA “pull[ed] a surprise switcheroo on regulated entities.” Env’t Integrity Project v. EPA, 425 F.3d 992, 996 (D.C. Cir. 2005) (Sentelle, J.); accord Azar v. Allina Health Servs., 139 S. Ct. 1804, 1810 (2019) (citing the “surprise switcheroo” doctrine). Almost a year after the PMTA deadline, the FDA issued its first marketing denial orders for various flavored e-cigarettes and announced that it required the very studies it originally expected it didn’t need. . . . Despite the radical difference, the FDA never mentioned, let alone reasonably considered, whether e-cigarette manufacturers, like Triton, could’ve reasonably relied on the FDA’s prior meetings and guidance.

The law requires more. “When an agency changes course, . . . it must be cognizant that longstanding policies may have engendered serious reliance interests that must be taken into account.” Regents, 140 S. Ct. at 1913 (quotation omitted). This does not mean that the FDA could not have “determine[d], in the particular context before it, that other interests and policy concerns outweigh any reliance interests. Making that difficult decision was the agency’s job, but the agency failed to do it.” Id. at 1914. This reinforces that the Order was likely arbitrary, capricious, or otherwise unlawful.

The FDA further failed to consider Triton’s reliance interests, whether there were alternatives to denial on this basis, and other evidence submitted by Triton. As Judge Oldham noted, the FDA responded more to some of Triton’s claims before the Fifth Circuit than it had when rejecting Triton’s PMTA. The court also found that that, on balance, a majority of the other relevant factors favored granting Triton’s request for a stay

The opinion also rejected the government’s (in my view, borderline frivolous) argument that Triton sought relief — a stay of FDA enforcement action — that the court could not give. Yet just as a court could issue a stay barring the deportation of an unlawfully present alien pending review of the alien’s claim for asylum or lawful presence, a court may order an administrative agency defendant to preserve the status quo pending the outcome of the litigation (in this case, by not initiating an enforcement action). How a government attorney argued the alternative is beyond me, particularly given the innovative and aggressive arguments in favor of expansive judicial authority to enter stays the federal government is currently making in the S.B. 8 litigation (something which I doubt was lost on this panel).

The Fifth Circuit’s WWLI decision indicates the FDA faces a tough road ahead defending many of its PMTA denials–and it appears the FDA knows it. Other manufacturers have also sought relief in court, and even before the Fifth Circuit’s decision issued the FDA was already beginning to back down. For instance, on October 11, in the face of a pending stay request before the U.S. Court of Appeals for the Sixth Circuit, the FDA agreed to rescind its denial of PMTAs submitted by Turning Point Brands.

What is particularly galling about the FDA’s treatment of ENDS manufacturers is that the FDA is well-aware that ENDS products pose far less risk to users than traditional, combustible cigarettes, and has acknowledged that ENDS can help some smokers quit. Further, there is substantial evidence that limitations on ENDS products will increase smoking, particularly among youth (as has been well-documented). Thus the FDA’s cavalier rejection of PMTAs is not only arbitrary and capricious, it is contrary to the FDA’s underlying public health mission (and may also be unconstitutional).

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Guns, Background Checks, Administrative Law, and the Sixth Circuit Michigan Case

The Sixth Circuit is considering a very interesting gun case; unfortunately, I haven’t been following it closely, largely because it’s a technical statutory and regulatory case rather than a Second Amendment case—but Prof. Robert Leider (George Mason), who guest-blogged here on a different subject a few months ago, has been, and kindly offered this analysis:

In gun control debates, the Second Amendment usually takes center stage. But more mundane questions of statutory interpretation and administrative law can have more impact on gun owners.

On Tuesday, the U.S. Court of Appeals for the Sixth Circuit heard oral argument in one such case, Gun Owners of America, Inc. v. Department of Justice. The appeal relates to a March 3, 2020 declaration by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) that Michigan’s concealed pistol license holders are no longer exempt from the national instant background check before the sale of a firearm because the Michigan State Police do not adequately research previous criminal convictions to determine whether a license applicant is prohibited from possessing a firearm. (ATF also undertook a similar action against Alabama pistol permit holders.)

Under the Brady Handgun Violence Protection Act, a federal firearms licensee (e.g., a gun store) must initiate a background check through the National Instant Check System before transferring a firearm. The law contains some exceptions, the most important of which is that a licensee may transfer a firearm to a person who has a permit that “was issued not more than 5 years earlier by the State in which the transfer is to take place” if that permit “allows such other person to possess or acquire a firearm” and “the law of the State provides that such a permit is to be issued only after an authorized government official has verified that the information available to such official does not indicate that possession of a firearm by such other person would be in violation of law.”

Traditionally, ATF has declared whether state permits qualify as instant check alternatives by publishing a “Permanent Brady Permit Chart” online and in a “Public Safety Advisory” to a state’s federal firearm licensees. In regulating through these informal mechanisms, ATF is doing one of two things, and both are procedurally problematic under the Administrative Procedure Act.

The first possibility is that despite ATF’s portrayal of the letters and permit charts as binding, they actually constitute non-binding sub-regulatory guidance from ATF to Federal Firearm Licensees. If that is the case, Michigan gun stores could just ignore ATF’s letter and continue accepting Michigan concealed pistol licensees as alternatives if they were certain that the licenses met the requirements of the Brady Act.

The second possibility—what ATF is likely doing—is issuing binding rules (or conducting binding adjudication) without public notice and comment and without the opportunity of affected stakeholders to participate. ATF’s letter, which announces “an important change to the procedure [federal firearms licensees] must follow to comply with the Brady [law],” suggests that when ATF determines that a permit does not qualify, ATF considers its determination as legally binding. If so, ATF’s determination is “one by which rights or obligations have been determined, or from which legal consequences will flow.”

Yet, before making changes to the Brady Permit Chart, ATF does not engage in notice and comment, nor does it engage in adjudication in which federal firearms licensees and permit holders—the affected stakeholders—may participate. Regardless of the merits of ATF’s actions, ATF is flouting the Administrative Procedure Act, and I was surprised that the Sixth Circuit panel did not press the government on this issue.

Two other major issues came up during oral argument that deserve further comment.

Standing: Why ATF’s Actions Have Significant Real-World Impact

The Sixth Circuit is apparently struggling with whether the plaintiffs have standing under Article III. Although the federal government has revoked the federal legal effect of their state-issued firearm licenses, the plaintiffs have another ready alternative to purchase firearms by submitting to the federal instant check system. The government contends that submission to the instant check does not create sufficient real-world injury to constitute injury-in-fact.

Here, the plaintiffs have unnecessarily convoluted the standing question by not articulating to the court the practical significance of ATF’s revocation. The use of a license as a substitute for the instant background check confers two important benefits upon license holders. First, it prevents the possibility that a gun purchaser will face significant delays in acquiring a firearm. About 10% of “instant” checks are not actually instant, and just under 1% take longer than three business days to resolve. Once a check is initiated, federal law permits the firearm to be transferred after three business days have elapsed. But that means individuals could still face delays of up to five days before they can take possession of their firearm. Those delays may not be a significant burden if the gun store is local. But if a person is traveling a substantial distance to a gun store or gun show, that delay could require a second, long trip to retrieve the firearm. When individuals seek to purchase a firearm, having a permit removes all uncertainty about the transaction being delayed.

Second, the permit allows individuals to engage in intrastate mail-order firearm sales. In response to the assassinations of John F. Kennedy and Martin Luther King, Jr., Congress banned the interstate mail-order sale of firearms in 1968. But Congress allowed intrastate mail-order sales to continue if allowed by state law, and there has been renewed interest in intrastate mail-order sales because the coronavirus pandemic has limited access to gun stores.

In 1993, the Brady Act effectively stopped most intrastate mail-order sales because the Act required individuals to present photo identification before the gun store may initiate the instant check. When an individual has a permit exempting the person from the Brady Act’s instant check requirement, however, then the Brady Act’s requirement to provide photo identification at the gun store also does not apply. Instead, the purchaser may submit a Firearm Transaction Record (Form 4473) by mail along with a copy of their permit. The gun store may then transfer the firearm by mail after contacting the purchaser’s local law enforcement agency and observing a lengthy waiting period. When ATF determines that a state’s permit does not exempt the permit holder from the Brady law, ATF also cuts off the ability to use that permit to facilitate a mail-order sale.

Should the Court Defer to the Michigan Attorney General’s Understanding of State Law?

Michigan law (§ 28.425b(6)) provides that the “department of state police shall verify” whether a person is qualified under law to receive the license by using information accessible “through the law enforcement information network and the national instant criminal background check system.” When the Michigan State Police receives ambiguous criminal history records, they have refused to conduct exhaustive investigations into whether the applicant is prohibited from having a license. The refusal to conduct such investigations prompted ATF’s withdrawal of concealed pistol licenses as an alternative to the instant check system. During oral argument, the panel (particularly Judge Sutton) seemed troubled that ATF was deferring to some unnamed person in the state police to authoritatively determine what Michigan law requires the state police to do when conducting a background check. He suggested asking the Michigan Attorney General for her views. In this case, however, deferring to the Attorney General’s understanding of the law would be a mistake.

The Michigan Attorney General should not be viewed as a neutral, authoritative source to determine the meaning of Michigan law. The Michigan Attorney General is a strong proponent of gun control. Gun control groups seek to narrow the exceptions of the federal instant check system because of the possibility that information could grow stale between the time that the permit was issued and when a person seeks to buy a gun. In this case, the Michigan Attorney General is incentivized to opine that Michigan law does not require the state police to conduct exhaustive background checks to prevent concealed pistol licenses from being acceptable alternatives to the federal background check.

Federal courts sometimes face difficult state-law interpretive questions. But no less than in federal-law cases, a federal court’s job is to interpret state law, not to try to delegate its task to a state executive official. That is particularly true in this case, in which the Attorney General would not be a neutral arbiter of state law. If the panel insists on having the state interpret its own laws, the more appropriate course of action would be to certify the question to the Michigan Supreme Court.

More broadly, this case raises difficult questions concerning what properly constitutes “the law of the State.” The federal Gun Control Act exempts state permits if “the law of the State” requires an adequate background check. What is the “law of the State”? The statute? The statute as implemented by binding executive regulations? Or does the real-world practice of state officials constitute “the law of the State,” even if that practice violates state statutes?

Here, I think the statutes should have primacy over executive practice. The plain statutory text of Michigan law indicates its concealed pistol licenses should qualify as alternatives to the national instant check system. Although executive agencies may engage in unlawful behavior when they implement the law, neither they, nor the Attorney General, has the power to rewrite the law passed by the legislature. And the Brady Act contains no language disqualifying all state permits just because some licensing official implements the law in a faulty manner.

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The Nonsensical “Asian American” Classification

Kao Lee Yang, a Hmong American neuroscience PhD student, was recently nominated for a prestigious fellowship for students who are members of “groups historically excluded from and underrepresented in science.” The fellowship committee determined that as an Asian American, Yang was not from an “underrepresented” group. The committee therefore refused to even consider her application.

Yang took to Twitter to vent: “While some Asian Americans are academically successful, others like the Hmong are underrepresented in STEM and academia in general… name me just one Hmong American woman you know who is a neuroscientist. I would love to connect with her if she is out there.” She added, “I am an example of the consequences resulting from the continued practice of grouping people with East/Southeast/South Asian heritages underneath the ‘Asian American’ umbrella.”

Yang blamed her predicament on the “model minority myth.”  Her ire would have been better targeted at the federal Department of Education. For over forty years, its Office of Civil Rights has required educational institutions to collect and report demographic data about “Asian Americans,” with no differentiation among the many national-origin groups. The educational establishment, in turn, has grown used to treating Asian Americans as a uniform racial group.

Of course, one can object that no minorities should be given special consideration for fellowship. Or that only African Americans should be given such consideration, but not groups composed mostly of post-1965 immigrants and their descendants. But it’s pretty hard to argue that an Argentine American of Italian descent should be eligible for a minority fellowship because she is “Hispanic,” but a Hmong American should not because she is “Asian.”

You can read more about how our modern racial and ethnic classifications developed in my recently published article, The Modern American Law of Race, or you can wait for my book, Classified: The Untold Story of Racial Classifications in America, forthcoming July 2021.

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After Paid Leave Plan Gets Chopped, Biden Promises Revamped Spending Proposal


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Democrats appear likely to abandon plans to include an expensive new federal entitlement program—paid family leave—as they try to trim the overall cost of President Joe Biden’s “Build Back Better” plan proposal.

Biden’s plan called for a federal paid leave program that would replace up to 85 percent of a worker’s pay (with that percentage falling for higher-paid workers) for up to 12 weeks per year. Workers could access the paid leave program if they were having a baby, taking care of an elderly or sick relative, or recovering from a serious illness of their own.

There has not been an official Congressional Budget Office assessment of how much the paid leave program would cost, but a similar stand-alone proposal drawn up by Democrats in 2019 carried a $547 billion price tag over 10 years. That made the paid leave proposal one of the more expensive heaves in Biden’s proposal. Even after Democrats tried to trim the benefits by reducing the timeframe to just four weeks instead of 12, the price tag was still over $300 billion, Politico reported earlier this month.

Ultimately, the high cost is what seems to have doomed that aspect of Biden’s plan.

The problem facing Democrats right now is rooted in basic budget math of the kind that usually gets ignored in Washington. Sen. Joe Manchin (D–W.Va.) has said he is worried about the trajectory of the national debt and will not support a social spending plan that relies on more borrowing. Without his support, Democrats do not have a majority in the Senate. So the plan has to include enough revenue offsets to pay for the proposed new spending—or, at least, pay for them sufficiently to satisfy Manchin.

But Democrats keep backing away from the sorts of large-scale tax increases necessary to pay for a $3.5 trillion spending plan—like the proposed “billionaire tax” on unrealized capital gains that reportedly got axed on Wednesday. As Reason’s Peter Suderman explains, that tax was a terrible idea (and maybe even an unconstitutional one), but discarding it reveals something about the underlying negotiations over Biden’s plan:

It is certainly possible that some deal will still be negotiated, that some other tax mechanism or mechanisms will be found that can raise sufficient revenue to make the tax-and-spending math work. But even if something eventually passes, Democrats’ down-to-the-wire struggle highlights the inherent political difficulty of raising taxes, even within a party that is nominally devoted to the idea that higher taxes, especially on the rich and well-off, are a popular political good. And the reason for that difficulty is not the intransigence of tax-hating Republicans, or the existence of the Senate filibuster, but the fact that Democrats are having trouble mustering sufficient support from elected Democrats.

So, to review: Manchin won’t vote for more borrowing. Democrats can’t find the votes for big tax increases. The only remaining option, at that point, is to start hacking away at the spending side of the legislation. Which is exactly what Democrats are doing, and that’s why paid leave appears to be heading for the cutting committee room floor.

Manchin on Wednesday stressed that his opposition to new benefits was rooted in concern for the country’s long-term fiscal status, noting in comments to reporters both the nearly $29 trillion national debt and the looming insolvency of the trust funds for Social Security and Medicare. “In good conscience, I have a hard time increasing benefits—which, all of us can agree we’d love to have this and love to have that—when you can’t even take care of what you have,” Manchin said.

Here’s the real kicker for progressives: A paid leave proposal, expensive though it may be, is politically popular even among Republicans. If Sen. Kirsten Gillibrand (D–N.Y.), who has been championing the policy, were able to bring a stand-alone bill for a paid leave program to the Senate floor (along with a mechanism to pay it), it is at least theoretically possible that such a bill would pass. Sure, there would be negotiations, amendments, and arguments over it. Legislators would have to legislate, in other words. But there are almost certainly 60 votes in the Senate for some form of federal paid leave program.

Instead, there will likely be no federal paid leave program. And that’s at least in part due to the fact that Democrats are trying to cram all their big ideas into a single piece of legislation, rather than trying to find agreement for individual items and moving them one at a time.

Where does that leave Biden’s bill on the eve of the latest deadline for a Senate vote that seems nowhere close to happening? The president is supposed to meet with congressional Democrats on Thursday to present a new framework that The Washington Post promises will “win the support of all Democrats.” Meanwhile, The New York Times says the revamped plan “is likely to leave some critical issues unresolved, including how to pay for it.”

So, yeah.

One of the cardinal rules of politics—and political media, especially—is that nothing is ever as bad (or as good) as it seems. These are professions where overreacting is a way of life. That said, here’s something White House Chief of Staff (and longtime Biden confidant) Ron Klain retweeted on Wednesday night. Judge for yourself how things are going right now over at 1600 Pennsylvania Ave.

FREE MINDS

Sen. Tom Cotton (R–Ark.) penned a wildly inaccurate piece for National Review defending qualified immunity. Reason‘s Billy Binion helpfully offers some corrections:

Read the whole thing.

FREE MARKETS

How to eat for an entire year on $150—as long as your stomach can handle it:

It all started on the first day of his internship in 2014, when Dylan noticed the rollicking coasters of Six Flags Magic Mountain from the windows of his new office. Fresh out of college and something of a coaster-fanatic already, Dylan was perusing the options for Six Flags’ annual pass when he stumbled upon what might be the deal of his lifetime — for a one-time fee of $150, he could eat two meals a day, every day at the park for an entire year. Since his office was just a five-minute drive away, it was a no-brainer.

“That entire first year, I don’t think I ever went to the grocery store,” he says. “I timed it so I was able to go there during my lunch break, go back to work, then stop back for dinner on my way home.”

Over the course of seven years of eating at the Six Flags food court, Dylan claims he saved enough to pay off his student loans, get married, and buy a house. Read the whole saga in MEL Magazine.

QUICK HITS

• Facebook doesn’t make people angrier. Some people are just jerks.

• Another In-N-Out burger joint was shut down in California for being “an immediate health hazard to the public” because the location won’t check customers’ vaccine status before serving them.

• Hong Kong approved a new censorship law prohibiting content that Chinese officials believe “might endanger national security.”

• America is in desperate need of more workers, but federal officials wasted at least 400,000 visa slots during the fiscal year that ended in September.

• Next week’s gubernatorial election in Virginia could provide a post-Trump road map for the GOP.

• Hall of Fame quarterback Brett Favre repaid $600,000 in welfare he improperly received from Mississippi.

• You’re gonna need a bigger….whatever you keep scorpions in?

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