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Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

Over at The Washington Post (paywall), IJ’s first-ever client, African-style hair braider Pamela Ferrell, is profiled at length about a different chapter in her life. “I never want to feel what that officer — whose face was so full of hate — felt. Then [hatred] gets your soul. I won’t give it that.”

New on the Short Circuit podcast: Special guest Molly Brady of Harvard Law tells an untold story of how NIMBYs tried to turn neighbors into nuisances, and when they failed turned to zoning instead.

• The Smoot-Hawley Tariff Act of 1930 requires all “vessel[s] arriving in the United States” to maintain (and publicly disclose) a manifest recording information about the just-completed voyage and the cargo. Data-aggregating companies file FOIA suit against the federal government, contending that the Act gives them a right to access airplane manifests too. Second Circuit: The statute is a mess (“an amalgamation of language from incompatible statutes”), but it applies to waterborne vessels only, not aircraft. No word on whether it applies to seaplanes. Or airships.
• Two Pittsburgh brothers are stopped on the street by a police lieutenant who suspects (incorrectly) that they are carrying synthetic marijuana. Five other police officers soon join the lieutenant. Finger-pointing altercation ensues, and the police slam one brother into a wall and tase the other. Third Circuit (over dissent): No qualified immunity for the body-slamming officer, though the lieutenant is off the hook for failing to prevent the body slam.
• United States Park Police officer stops truck driver on the George Washington Memorial Parkway, where commercial vehicles require permits. He smells marijuana, finds marijuana, and arrests the driver. Fourth Circuit: Yet he had no lawful reason to stop the driver. Merely suspecting that he might not have had a permit is not grounds for a traffic stop. Suppress the evidence.
• After federal agents seize a man’s truck, he waits over two years for a hearing before a judge. Does due process require a more prompt post-seizure hearing? Fifth Circuit: The Constitution requires no such hearing; and the Second Circuit’s contrary holding (in an opinion written by then-Judge Sotomayor) should be limited to the specific statute at issue in that case. (This is an IJ case. We will be filing a cert petition.)
• After unruly, possibly armed man declines to raise his hands with sufficient alacrity, Fort Worth, Tex. officer employs a “distractionary strike” to gain compliance, allegedly breaking the man’s nose. Fifth Circuit: A reasonable jury might review the bodycam footage and think that was excessive force.
• Dearborn, Mich. officer: I shot the man because he was standing over me, trying to get my gun, and I realized the gun was loose in its holster.  The man’s estate: That makes no sense. There was nothing wrong with the safety mechanisms on the officer’s double-lock holster, and the bullet trajectories indicate the victim was lying on the ground when he was shot. Sixth Circuit: All of which presents a fact question for the jury. No qualified immunity.
• In May, the Sixth Circuit stayed a district court order directing Ohio to (among other things) dispense with the ink signature and witness requirements for ballot initiative petitions. Sixth Circuit (September 2020): We still think the district court was wrong, so its preliminary injunction is reversed (and marijuana decrim is rather less likely to appear on some local ballots). Also, a soft circuit-split: the Sixth Circuit breaks with the Eleventh in electing to spell Anderson v. Celebrezze correctly. Which is unsurprising since respondent Anthony J. Celebrezze Jr. was the son of Anthony J. Celebrezze Sr., a Sixth Circuit judge from 1965 to 1998.
• District Court: “I disagree with the Sixth Circuit. . . . Maybe the Sixth Circuit will reverse me again, but I can’t impose a sentence on [the defendant] that . . . does not make sense to me.” Sixth Circuit: Vacated and remanded for reassignment to a different judge.
• It is clearly established that a government employee cannot grope an inmate. It is clearly established that a government employee cannot grope a fellow government employee. But what about just groping ordinary folks? That calls for qualified immunity, says two-thirds of this Ninth Circuit panel. (It’s clearly established now, though.)
• It is clearly established that if an inmate’s health significantly deteriorates after the inmate is seen by jail medical staff, guards must summon medical staff anew. So, says the Sixth Circuit, Macomb County, Mich. guards who allegedly watched a man (who was in jail for being unable to pay a $772 court fine) lie naked and convulsing on the floor of his cell for two days before his death are not entitled to qualified immunity.
• District Court: The database systems ICE uses to determine whether individuals who have recently been arrested by local authorities are subject to deportation are not reliable enough to create probably cause. Ninth Circuit (over a dissent): Reversed. The district court needs to reconsider whether reliability issues with some of the databases necessarily mean the whole system is unreliable. Separately, it was error to hold that detainees are not entitled to a post-detainer review by a neutral magistrate on whether there is probable cause to deport them.
• In 1990, Congress created a program to temporarily allow foreigners to live here if they couldn’t safely return to their home countries because of natural disasters, armed conflicts, or other calamities. In 2017 and 2018, the Dep’t of Homeland Security closed the program to citizens of Sudan, Nicaragua, El Salvador, and Haiti. Ninth Circuit (over a dissent): Which is something Congress gave DHS broad discretion to do. Moreover, there is no evidence the policy change was driven by the president’s alleged racial animus. The district court’s nationwide preliminary injunction is vacated.
• Woman alleges that Pontotoc County, Okla. jailer demanded she go to the control tower where he had sex with her while she cried, fearing she would face additional charges if she resisted. Jailer: It was consensual. Regardless, it’s not clearly established that sex with an inmate is inherently coercive. Tenth Circuit: No qualified immunity. (He was also convicted of rape, though the Tenth Circuit did not rely on that in reaching its decision here.)
• It is clearly established that police can’t plant evidence on people, says the Eleventh Circuit. So a Meriwether County, Ga. officer who says she did not plant pot at the plaintiff’s home can tell it to the jury. No qualified immunity.
• Allegation: Albany, Ga. officer invokes nonexistent eyewitness, gets innocent man charged with felony murder. The man spends several months in jail, but the charges are dismissed when he agrees to testify against the remaining co-defendants. District court: Which doesn’t count as the charges being resolved in his favor, so he can’t sue the officer for malicious prosecution. Eleventh Circuit: Not necessarily. The case can go on.
• And in en banc news, the Ninth Circuit will not reconsider its earlier holding that the First Amendment does not protect the right of a labor union to encourage neutral employees to strike for the purpose of furthering the union’s labor negotiations. Six judges dissent, pointing out that this would seem to conflict with everything the modern Supreme Court has said about the First Amendment. And by an 8–7 vote, the Sixth Circuit will not rehear an earlier panel decision about the appropriate application of harmless-error review in a federal habeas case brought by a prisoner who was partially shackled during trial.

Friends, in 1873, the Supreme Court ruled that the “right to use the navigable waters of the United States” is possessed by all Americans and protected by the Privileges or Immunities Clause of the 14th Amendment. But that right—and the constitutional clause that protects it—have largely been ignored ever since. This week, IJ asked the Supreme Court to change that. For decades, Jim and Cliff Courtney have tried to provide boat transportation across 55-mile-long Lake Chelan in Washington state, but state officials have stymied them at every turn through a protectionist licensing law. Click here to read the cert petition. And click here for a lovingly crafted podcast episode about the case.

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Not content with one round of sector-specific bailouts, the country’s passenger airlines are lobbying Congress and the White House hard in hopes of receiving yet another infusion of taxpayers’ money.

On Thursday, The Wall Street Journal reports, the top executives of American Airlines, Southwest, and United all met with White House Chief of Staff Mark Meadows to ask for cash assistance, which they say would forestall a looming round of October layoffs.

Meadows appeared amenable to providing an additional $25 billion to the industry, which he deemed a small sum compared to the broader pandemic relief proposal that Congress is currently considering.

“I never thought I’d say $25 billion was a small number, but compared to $1.5 trillion, it’s a rather small amount of additional assistance that could potentially keep 30,000 to 50,000 workers on the payroll,” Meadows told reporters after the meeting. Meadows is the former chair of the House Freedom Caucus, which presents itself as a force for fiscal conservatism.

That sum would likely come as a clean extension of the $32 billion Payroll Support Program, which was originally passed in March as part of the Coronavirus Aid, Relief, and Economic Security (CARES) Act. That program, administered by the Treasury, made $25 billion in grants available to passenger carriers on the condition that they not involuntarily furlough their workers or cut wages through the end of September. They’re also obliged to run a minimum number of flights to areas they serviced prior to the pandemic.

Airlines—who saw travel volumes decline by as much as 95 percent at the beginning of the pandemic—have eagerly accepted those grants. United, American, and Delta all inked grant agreements worth around $5 billion each. Southwest accepted $3.2 billion in taxpayer-funded grants. Companies will have to pay some of this grant money back, either as cash or as stock.

The CARES Act also created a $25 billion line of credit for the industry. So far, no airline has touched that pot of money, despite an announcement in July that several major carriers would. Southwest has cited its success at raising private capital as a reason for walking away from CARES Act loans.

The airlines and their unions are warning that without another round of grants, carriers could be forced to lay off up to 75,000 employees after benefits expire October 1.

The Congressional Research Service has pointed out that because the airlines’ grant agreements were signed in May, June, July, and even later, many of these recipients will likely still have grant money left over to pay workers in October.

Nevertheless, the potential for sudden, mass layoffs of airline workers in an election year has attracted bipartisan concern from members of Congress.

In August, 16 Republican senators wrote a letter to Senate Majority Leader Mitch McConnell (R–Ky.) urging him to support a second airline bailout. In late July, a majority of U.S. House members, including 195 Democrats and 28 Republicans, likewise signed a letter endorsing a six-month extension of the Payroll Support Program. “Without an extension of the (payroll support program) before then, hundreds of thousands of airline workers will be fired or furloughed on October 1,” they wrote.

But job losses in an industry that has seen a massive drop in demand for its services isn’t the worst thing in the world, argues Marc Scribner, a transportation researcher with the Reason Foundation (which publishes this website).

“The outlook isn’t great for the airlines,” says Scribner. The number of people flying is down around 70 percent compared to this time last year, and the industry itself doesn’t expect passenger volumes to return to 2019 levels until 2024.

“Another round of bailouts would just be an expensive way of delaying” an inevitable shedding of jobs, he tells Reason, warning that trying to prevent the shrunken sector from downsizing risks creating a “zombie airline industry.”

As Veronique de Rugy argued in a recent column for Reason, bailouts tend to set the stage for still more bailouts by propping up lots of unprofitable businesses.

Refusing a second round of bailouts would lead to job losses and possibly even bankruptcy for some carriers, but it would also encourage the restructuring necessary for an airline to return to profitability in a world of much-diminished demand for air travel. After all, if you only have 30 percent of the passengers you once had, you probably don’t need to keep paying 100 percent of your flight attendants and baggage handlers.

Whether or not a second airline bailout will end up being included in the fourth relief package remains to be seen.

Neither the $1 trillion relief measure floated by McConnell in July, nor the $500 billion “skinny stimulus” proposed by Republicans this month included money for the airlines. The Democrats’ May-passed $3 trillion relief proposal would have barred airlines from furloughing workers until government assistance ran out, but didn’t give them any more money.

A $1.5 trillion relief package proposed by the bipartisan House Problem Solvers Caucus managed to budget $12 billion for broadband in underserved communities but included no more money for the airlines either.

None of that bodes well for a second bailout. But given that Senate Republicans, House Democrats, and the White House have all endorsed additional support for carriers, there’s a real chance they’ll end up being included in whatever eventually passes.

The best way to help both airlines and consumers, says Scribner, is to tackle the public health crisis that’s scaring people away from flying in the first place.

“The danger of going forward with another round of airline bailouts is that we are going to be locking in the pre-pandemic industry structure when we could stand to see some destruction and competition,” he says.

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Yes, that’s a real case; here’s the opening paragraph of the applicant’s reply brief:

Applicant James Blaesing’s (“Applicant”) efforts to collect DNA from President Warren Harding’s remains present a unique disinterment scenario. This is not a dispute over a decedent’s final resting place or a battle over estate proceeds. This is an attempt by President Harding’s grandson to prevent others from questioning his lineage and usurping his right to control how his family’s story is told….

Applicant seeks universal, permanent recognition ofhis ancestry, not wealth or worldly resources. “Proper pride in one’s ancestry and in the worthiness of one’s parents is a necessary part of the equipment of a well-balanced person, for as it has been said: ‘Pride is the savage rear guard of the human soul, and fights when all other resources have been exhausted.'”

From the New York Times (Heather Murphy):

There is no real dispute that James Blaesing is the grandson of Warren G. Harding and his mistress. But the wounds of that revelation have resurfaced in court, as relatives of the 29th president, many now in their 70s, argue over a proposal to exhume President Harding’s body as the 100th anniversary of his election approaches.

On one side is Mr. Blaesing, who says the exhumation is necessary to prove with “scientific certainty” that Harding was his grandfather, even though the DNA evidence is already persuasive, and to confirm his and his mother’s “membership in a historic American family.” He also wants to bring along a television production crew to document the opening of the tomb.

On the other side are several Harding relatives who say the disinterment would create an unnecessary spectacle. One has questioned the motives of the television production company, believing it is fixated on the unfounded theory that Harding, who died in office in 1923, was poisoned—perhaps by his wife, Florence Harding.

Thanks to the Media Law Resource Center MediaLawDaily newsletter for the pointer.

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From yesterday’s decision in Hamilton v. Speight (3d Cir.) (nonprecedential), written by Judge Paul Matey and joined by Judges Michael Chagares and Thomas Hardiman:

Lenwood Hamilton is a former professional athlete, entertainer, and motivational speaker…. Gears of War is a video game series in which members of the Delta Squad—
including Augustus “Cole Train” Cole—battle “a race of exotic reptilian humanoids”
known as the Locust Horde on the planet Sera. A few years ago, Hamilton saw the game for the first time. “Looking at the Augustus Cole character,” he felt, “[wa]s like looking in a mirror.” So he sued[,] … alleg[ing] that defendants used his likeness in violation of his right of publicity….

Here, no reasonable jury could conclude that Hamilton—whether Lenwood or Hard Rock—is the “sum and substance” of the Augustus Cole character. There are no doubt similarities. Hamilton and Cole have similar skin colors, facial features, hairstyles, builds, and voices. Hamilton played football for the Philadelphia Eagles; Cole once played “thrashball”—a “fictionalized sport that loosely imitates American football”—for a team with that same name. And Gears of War players can dress Cole in a “Superstar Cole” outfit that resembles Hard Rock Hamilton’s signature costume.

But other significant differences reveal that Hamilton was, at most, one of the “raw
materials from which [Augustus Cole] was synthesized.” Hart v. Electronic Arts, Inc. (3d Cir. 2013). In Gears of War, Cole fights a fantastic breed of creatures in a fictional world. Hamilton, of course, does not. Cf. Kirby v. Sega of Am., Inc. (Cal. Ct. App. 2006) (transformative use where musician depicted in video game “as a space-age reporter in the 25th century”). Nor has Hamilton served in the military. Cf. Hart (no transformative use where game depicted “digital [football player] do[ing] what the actual [football player] did while at Rutgers: . . . play[ing] college football, in digital recreations of college football stadiums, filled with all the trappings of a college football game”); No Doubt v. Activision Publ’g, Inc. (Cal. Ct. App. 2011) (no transformative use where game featured “exact depictions of [band’s] members doing exactly what they do as celebrities”—i.e., singing and playing music)…. Cf. Winter v. DC Comics (Cal. 2003) (alleged depiction of musicians Johnny and Edgar Winter as “Johnny and Edgar Autumn” in comic book protected by the First Amendment; though the Autumns shared physical attributes and style of dress with the Winters, the Autumns were “depicted as villainous half-worm, half-human offspring born from the rape of their mother by a supernatural worm creature that had escaped from a hole in the ground”—i.e., were “but cartoon characters … in a larger story, which is itself quite expressive”).

{Relying on copyright law principles, Hamilton also argues that the transformative use test does not apply when the work at issue “[is] not a commentary on the person whose likeness [is] used[.]” He is incorrect. See Winter (“Comedy III did not adopt copyright law wholesale…. What matters is whether the work is transformative, not whether it is parody or satire or caricature or serious social commentary or any other specific form of expression.” (emphasis added)).

If Hamilton was the inspiration for Cole, the likeness has been “so transformed that
it has become primarily the defendant’s own expression.” The First Amendment therefore bars Hamilton’s claims….

As the discussion of Hart reflects, the Third Circuit had held that sports video games in which characters were closely based on real sports figures aren’t protected by the First Amendment by right of publicity claims. I think that’s mistaken, for reasons I discuss here: Among other things, I think the Hart holding jeopardizes the common and valuable practice of including real people as characters in books, movies, and plays—think Midnight in Paris, Picasso at the Lapin Agile, and many more. (Note that, rightly or wrongly, video games are treated as constitutionally equivalent to other speech.)

Still, I think the new Hamilton decision is correct, given Hart: At least when there is something of a fanciful transformation of the character, that use is constitutionally protected. Thanks to the Media Law Resource Center MediaLawDaily newsletter for the pointer.

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In California, wildfires have burned more than 3.2 million acres—an area larger than the state of Connecticut—since January. Since August 15, the state’s fires have killed at least 24 people and destroyed more than 4,200 structures. The amount of the state’s forestland that has burned this year is has been described as “unprecedented” and “record-breaking.”

The area annually burned by wildfires has been zig-zagging upward since 1950. The chart below displays data through 2017; subsequently, Cal Fire reports, the wildfires consumed 1.6 million acres in 2018 and 260,000 in 2019 respectively.

The latest area burned may not be as unprecedented on a longer time scale. For example, a 2007 study in Forest Ecology and Management suggests that the area in California burned by Native Americans to manage landscapes, as well as those sparked by lightning before the era of European settlement and active fire suppression, may have fallen between 4.5 and 12 million acres annually. “The idea that US wildfire area of approximately two million hectares (about 5 million acres) annually is extreme is certainly a 20th or 21st century perspective,” wrote the researchers. “Skies were likely smoky much of the summer and fall in California during the prehistoric period.”

In the 20th century, the National Interagency Fire Center reports that the area annually burned by wild land fires in U.S. (not just California) may have exceeded 50 million acres in 1930 and 1931. But the agency cautions that the less rigorous methods for collecting and compiling these early 20th century data means that “figures prior to 1983 should not be compared to later data.” For example, the data from the 1930s may well include fires intentionally set in the Southeast to clear agricultural land.

A 2009 study in Ecological Applications (data updated here) identified a U-shaped trend in 11 western U.S. states, in which fires burned more space at the beginning of the last century, less in the middle decades, and more again recently:

What is causing the upward trend in the area burned by wildfires in the western U.S.? During a visit to California this week, President Donald Trump suggested that bad forest management is the chief cause. During the briefing, California Gov. Gavin Newsom gingerly suggested that “the science is in and observed evidence is self-evident that climate change is real, and that is exacerbating this.” In fact, both have played a role, as has the complicating circumstance that millions of Californians have moved to fire-prone wildlands.

A 2009 report from researchers associated with California Polytechnic State University observed that bad forest management, including active fire suppression and restrictions on timber harvests, have “resulted in an unnatural accumulation of fuels on many California forestlands.” The report further noted: “Where 50–70 trees per acre stood before the Gold Rush, California forests now average over 400 trees per acre. When fire enters these ecosystems the resulting high-intensity wildfires are as unnatural as the accumulated fuels that they consume.”

Meanwhile, California’s climate has been heating up and periods of drought have been deepening and lengthening. Using surface temperature data, a team led by University of Maryland atmospheric chemist Clark Weaver calculates that California, since 1895, has been growing warmer at a rate of about 2.1° Fahrenheit per century. The warming sped up over that time: From 1960 to today, the rate is 4.8° per century.

An August 2020 study in Environmental Research Letters finds that since 1979, a combination of rising temperatures and falling average precipitation has increased the likelihood of extreme autumn wildfire conditions across California. The researchers report trends for the months of September, October, and November (SON) in both temperatures (up about 1° Celsius) and precipitation (down an average of 30 percent), making fire weather conditions about twice as worse statewide.

The researchers find that from 1984 to 2018, the trends toward a hotter and drier California temperature correlate with a increase of about 40 percent per decade in the size of the statewide autumn-burned area.

As all this was happening, more people were heading into the woods, that is, making their homes in the “wildland-urban interface” (WUI) areas where houses and wildland vegetation meet and intermingle. Some go there because they can’t afford to live in pricey urban areas with strict restrictions on new building, while other, more fortunate people move to the woods to enjoy the scenery, wildlife, and outdoor activities.

A 2007 report in the International Journal of Wildland Fire found by 2000, some 3.5 million California housing units were located in WUI areas, with another 1.5 million intermixed within and surrounded by wild landscapes. On top of that, 62 percent of net California housing growth from 1990 to 2000 occurred in WUI zones. A 2018 study in the Proceedings of the National Academy of Sciences reported that America’s wildland-urban interface “grew rapidly from 1990 to 2010 in terms of both number of new houses (from 30.8 to 43.4 million; 41% growth) and land area (from 581,000 to 770,000 km2; 33% growth), making it the fastest-growing land use type in the conterminous United States.”

In other words, more and more Americans have moved into areas where the wildfire risk is higher:

The measure that could make a big difference with respect to California wildfire risk is, as the president advised, better and more proactive forest management. As it happens, the federal government, which the president oversees, owns 57 percent of California’s forests, whereas state and local governments own around 3 percent. (The rest is in private hands.)

Better forest management to reduce wildfire risk chiefly involves reducing the fuel load in overgrown fire-suppressed forests using mechanical harvesting and prescribed burns. A 2019 Government Accountability Office report found that federal agencies spent around $5 billion on reducing wildland fuels from 2009 to 2018:

The Forest Service and the Bureau of Land Management estimate that more than 100 million acres of federal lands are at high risk from wildfire, but in 2018 the agencies managed to treat only about 3 million acres.

An intriguing 2019 study in Fire notes that 70 percent of all prescribed fire between 1998 and 2018 was completed by non-federal entities in the Southeastern U.S. In other words, private owners and state agencies in the Southeast have completed more than twice as much prescribed fire as the entire remainder of the country. “This may be one of many reasons why the Southeastern states have experienced far fewer wildfire disasters relative to the Western U.S. in recent years,” the researcher observes. It is worth noting that the federal government owns just a small percentage of the land in most Southeastern states.

A 2020 study in Nature Sustainability estimated that 20 million acres of California forestland—about 20 percent of the state’s land area—would benefit from prescribed burning to cut the risks of catastrophic wildfires. Yet California intentionally burned just 50,000 acres in 2017. The costs for prescribed burns range from $100 to $500 per acre. That suggests that it would take roughly $2 billion to $10 billion to treat 20 million acres. For comparison: In its latest budget request, the U.S. Forest Service says it has a backlog of 80 million acres in need of active management but plans to reduce fuel loads on just over 1 million acres in 2021. The U.S. Department of Agriculture, which oversees the Forest Service, suggested in a July 2020 report that “restoration of national forests comes with an estimated price tag of $65 billion.”

The insurance risk analytics firm Verisk assesses the primary factors that contribute to wildfire risk—fuel, slope, and road access—to determine a property’s individual wildfire hazard score. The company finds that more than 2 million properties in California are at high and extreme risk from wildfire. (Nationwide, about 4.5 million properties are at high wildfire risk.) The Insurance Information Institute reports that annual insured wildfire losses in the U.S. generally hovered below $1 billion from 2004 until 2017. In 2017 and 2018, insured wildfire losses escalated to around $15 and $17 billion, respectively, before dropping back down in 2019 to around $1 billion. U.S. insured wildfire losses so far this year are estimated at around $3 billion:

After the spectacular wildfire losses in 2017 and 2018, insurance companies have revised their risk models and are now pulling out the California market. Why? Because the premiums that state regulators allow insurers to charge don’t cover their projected wildfire risks. By one calculation, insurers covering California wildfire losses paid out more than $2 for every $1 in premiums in 2017 and $1.70 for every $1 in premiums in 2018. With that dynamic, it is not surprising that insurance companies have dropped wildfire coverage for nearly 350,000 California homeowners since 2015. Property owners who can still buy insurance in the market have seen their premiums increase recently by as much 300 to 500 percent.

In the wake of 2018’s disastrous fires, the California legislature passed Senate Bill 824, which prohibits cancellation or nonrenewal of homeowners policies within a year of a declared state of emergency if a structure is either in an area where a wildfire occurred or adjacent to a fire perimeter. In December 2019, California Insurance Commissioner Ricardo Lara imposed a mandatory one-year moratorium on insurance companies refusing to renew certain policies; this applies to least 800,000 homes in California wildfire disaster areas.

As more Californians lose their standard wildfire insurance coverage, they have been turning to the state’s Fair Access to Insurance Requirements (FAIR) plan to protect their properties. The FAIR plan is basically a high-risk insurance pool that offers last-resort, bare-bones coverage, chiefly for fire losses, to property owners who cannot obtain a policy in the regular market. It was established in 1968, in the wake of urban riots and brush fires, when the California legislature required insurance companies offering property policies in the state to create and contribute to the plan. It is not taxpayer-financed, and plan premiums are statutorily required to be actuarially sound.

The FAIR plan’s premiums have been increasing at a rate of 8 percent per year since 2016. This year, the program got regulators’ permission to raise its rates by 15.6 percent—after trying to hike them by 35 percent.

Being unable to obtain insurance means, of course, that owners will find it much harder to sell, since banks will not issue mortgages for uninsurable properties.

Recognizing that his one-year nonrenewable mandate forcing insurance companies to maintain fire policies is coming to its end, Insurance Commissioner Lara announced this week that he is convening an investigatory hearing in October that will focus on ways to protect California residents against increasing wildfire risks. “Our current reality of increasing insurance premiums and non-renewals hurts those who can least afford it, including working families and retirees on fixed incomes,” said commissioner Lara in a press release. “We can lower the insurance risk by incentivizing people to bring down the fire risk on their properties and in their communities with clear, science-based home-hardening standards.”

Home-hardening could help, but not perhaps as much as the commissioner and property owners may think. A 2019 Fire article analyzed the factors associated with structure loss in the California areas burned by wildfire from 2013 to 2018. Analyzing how more than 40,000 structures exposed to wildfire fared, the researchers found that “in most regions home structural characteristics are far more important in determining home survival than defensible space.” (Defensible space generally means cutting back brush and trees as much as 100 feet to establish a perimeter around a house.) They added that many “destroyed structures could be characterized as ‘fire-safe,’ such as having >30 meters of defensible space or fire-resistant building materials.”

So why would one of the most frequently referenced protection measures—expanding defensible space—have so little impact on whether a house survives a wildfire? Because flying embers that precede the fire front by a mile or two often waft over the cleared perimeter to set houses alight. Measures that do somewhat increase the chances that a house will survive a wildfire are having enclosed (or no) eaves, multiple-pane windows, and screened vents. These tend to exclude embers from gaining entry into more combustible parts of a structure.

If this study is right, the home-hardening measures that commissioner Lara wants insurance companies to take into account when setting premiums will probably not have much impact on whether Californians who live in fire-prone areas can obtain coverage or reduce what those who can get coverage pay for their policies.

Whatever is sparking the upsurge in wildfires, California regulators and residents should take market signals seriously when deciding where to live. As the Pomona College environmental historian Char Miller recently put it in The New York Times, insurance companies ask themselves: “Why am I insuring something that I know is going to be destroyed?” Homeowners should certainly be asking themselves a similar question.

Meanwhile, a 2007 analysis in the Journal of Real Estate Finance and Economics found that repeated fires in any given area of Southern California brought down property values. “The first fire reduces house prices by about 10 percent,” they calculated, “while the second fire reduces house prices by nearly 23 percent.” Both insurance rates and resell prices are signals that living in the woods is costly. Many people may be willing to take the risk of losing their property to wildfire, but insurance policyholders or taxpayers should not be forced to subsidize that choice. Charging people the full cost of their fire risks could well incline them to build and live in safer areas.

A fascinating 2016 Stanford Law Review article highlights that point. The authors, legal scholars Omri Ben-Shahar and Kyle Logue, observe that insurance can serve “as a form of private regulation of safety—a contractual device controlling and incentivizing behavior prior to the occurrence of losses.” Their focus is on flood insurance, but the point is valid for fire coverage too:

Insurance could contribute at least modestly toward mitigating California’s rising wildfire risks. Although it is way too bureaucratically complex and slow, the Federal Emergency Management Agency (FEMA) has a severe repetitive loss program hints at a way forward. That voluntary program buys out homeowners whose property has been flooded numerous times and encourages them to relocate to higher ground. FEMA has acquired more than 43,000 such flood-prone properties since 1989. A streamlined buyout program for structures destroyed by wildfire, ideally run by private insurers, could give residents of high-risk areas a stronger incentive to relocate and rebuild elsewhere.

One preliminary idea, based on what has been happening with many FEMA buyouts, is that insurers might pay the pre-fire value for burnt-out properties and communities, then turn the now-vacant land over to local land trusts to oversee and manage.

Another innovative measure that would help homeowners reduce their wildfire risks is to issue forest resilience bonds (FRBs). These raise private capital to fund forest restoration efforts, such as mechanical harvesting and prescribed burning, that reduce the chances of wildfire. Smaller fires mean lower costs. The bond issuers—who could be government entities, but could also be utility companies or other private parties—reimburse the investors over time. For example, a $4.6 million FRB was issued in 2018 to treat and lower the fire risks on 15,000 acres of forestland in the North Yuba River watershed via tree thinning and prescribed burning. Instead of waiting for action and fickle funding from distant federal and state agencies, local communities at high risk of wildfire could issue such bonds and begin forest restoration sooner. Insurance companies might even invest in such bonds, and could also factor the lower fire risk into their premiums for that community’s homeowners.

An alternative to state and federal wildfire suppression is privately provided wildfire fighting. The Montana-based Wildfire Defense Systems (WDS) has been offering just such services since 2013. Insurance companies contract with WDS to evaluate the wildfire risks of policyholders and advise them on how to lower those risks. WDS also offers insurers access to private firefighting services that are on-call across 20 states.

The Trump administration is right to complain about poor forest management, but it has been offering no credible plans for fixing it. And California’s insurance regulators seem dead set on policies that will eventually drive private insurance companies out of the state. Meanwhile, forests burn, thousands flee their homes, and millions choke on smoke.

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Joe Biden, who as recently as Wednesday was claiming he would have the authority as president to impose a nationwide mask mandate, suddenly reversed himself last night. “I cannot mandate people wearing masks,” the Democratic presidential nominee admitted during a CNN “town hall,” adding that he could still require masks in federal buildings and on federal land.

That concession represents an embarrassing retreat for Biden, who has been talking for months about forcing Americans to cover their faces in public. “I would insist that everybody out in public be wearing that mask,” he said in a June 25 interview with a local TV reporter in Pittsburgh. When asked if he would “use your federal leverage to mandate that,” Biden replied: “Yes, I would. From an executive standpoint, I would….I would do everything possible to make it required that people had to wear masks in public.”

Biden reiterated that promise at the Democratic National Convention last month. “If I’m your president,” he said, “on day one we’ll have a national mask mandate.” 

Speaking to reporters in Delaware on Wednesday, Biden said he had been consulting with his legal advisers about an executive order that would mandate masks in states that have not imposed such a requirement. “Our legal team thinks I can do that, based upon the degree to which there’s a crisis in those states, and how bad things are for the country,” he said.

Either Biden’s legal advisers changed their minds, he misunderstood their advice, or he reconsidered the electoral implications of campaigning for president as the guy who wants to unilaterally impose a requirement that remains controversial even among people who acknowledge the value of masks in reducing virus transmission. While a recent Harris poll found that a large majority of Americans support a national mask mandate, the question did not specify whether that policy would be enacted by Congress or decreed by the president. Furthermore, if people who oppose a mandate feel more strongly about the issue than people who support that policy (as seems plausible), Biden’s old stance might have alienated more voters than it attracted.

President Donald Trump, who has sent mixed messages about masks but has never been shy about asserting powers he does not actually have, seized on Biden’s plan to mandate face coverings as evidence of his opponent’s dictatorial ambitions. “He wants the president of the United States, with the mere stroke of a pen, to order over 300 million American citizens to wear a mask for a minimum of three straight months…no matter where they live,” Trump said at a press briefing last month. “He does not identify what authority the president has to issue such a mandate or how federal law enforcement could possibly enforce it or why we would be stepping on governors throughout our country, many of whom have done a very good job and they know what is needed….If the president has the unilateral power to order every single citizen to cover their face in nearly all instances, what other powers does he have?”

Trump’s respect for federalism and constitutional limits on presidential power is highly selective, of course. This is the same man who last April asserted “total” authority over COVID-19 lockdowns, saying “the president of the United States calls the shots.” Other signs of Trump’s situational commitment to obeying legal constraints on his authority include his extralegal ban on bump stocks; his determination to build a border wall that Congress has refused to fund; his talk of punishing news organizations that annoy him by yanking broadcast licenses and loosening libel laws; his threat to withhold congressionally appropriated money from states that allow wide use of mail-in ballots; and his administration’s nationwide eviction moratorium—which, like the mask mandate Biden now admits he can’t impose, was presented as a response to COVID-19.

That last policy, which Centers for Disease Control and Prevention (CDC) purported to establish this month, is supposedly based on the agency’s authority under the Public Health Service Act. A regulation issued under that statute says the CDC’s director may “take such measures” he “deems reasonably necessary” to stop the interstate spread of communicable diseases, “including inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection.”

As South Texas College of Law professor Josh Blackman has noted, such a broad reading of the CDC’s authority is highly implausible in light of the specific examples cited in the regulation on which the agency is relying. George Mason law professor Ilya Somin likewise warns that the eviction moratorium undermines property rights, federalism, and the separation of powers.

If the CDC can, in the name of disease control, force landlords to house people who do not pay their rent, it can impose pretty much any requirement under that heading—including the mask mandate that both Trump and Biden now agree cannot be imposed by the executive branch. Given the Trump administration’s broad reading of the CDC’s authority, the only thing preventing Trump from mandating masks may be his personal antipathy toward them, combined with a political calculation that such a decree would not go over well with his supporters.

As for Biden, there is not much in his long political career that suggests he draws a distinction between what he wants to accomplish and what the Constitution allows. When he mentioned the Constitution during a Democratic presidential debate last year in connection with Kamala Harris’ plan to impose gun control by executive fiat, it was striking precisely because he rarely acknowledges limits to presidential authority when they get in the way of policies he likes. Biden’s view of presidential war powers, for example, was the broadest of any laid out by this year’s Democratic contenders.

In short, there is little reason to believe that Trump or Biden will eschew presidential power grabs simply because they both now agree that an executive order requiring face masks would be a step too far. But I guess we should be grateful that either of them acknowledges there are some things the president cannot do.

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