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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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The U.S. Department of Commerce today announced that it will, as threatened, implement a ban on the TikTok and WeChat apps, thus censoring tools Americans use to communicate each other while blaming it all on China’s Communist rule.

As of Sunday, online mobile or app stores will not be able to distribute or update either WeChat or Tiktok. WeChat will further be banned from processing payments within the United States. This enacts President Donald Trump’s August executive orders, in which he claimed that the two apps threaten the United States due to their parent company’s ties to the Chinese government.

“At the President’s direction, we have taken significant action to combat China’s malicious collection of American citizens’ personal data, while promoting our national values, democratic rules-based norms, and aggressive enforcement of U.S. laws and regulations,” Commerce Secretary Wilbur Ross said in a press release today.

Restricting which communication tools Americans can use in fact undermines American values and our “rules-based norms.” It is more akin to how countries like China attempt to control how citizens can communicate.

“The Commerce Department’s decision to bar transactions with TikTok and WeChat raises serious First Amendment concerns and should be scrutinized carefully by the courts,” wrote Jameel Jaffer, executive director at the Knight First Amendment Institute, following today’s orders. “The Supreme Court held 50 years ago that the First Amendment protects Americans’ right to access foreign media. This protection is no less important today. The privacy and security concerns with platforms like TikTok and WeChat are real, but we should be wary of setting a precedent that would give this president, and every future one, broad power to interfere with Americans’ access to information and ideas from abroad.”

The administration is being sued by both TikTok and at least one employee who works there over the broadness of Trump’s order, arguing that this move violates their due process protections and fails to identify an actual threat. One of the suits notes that “TikTok is neither owned, operated, nor controlled by China or the Chinese government. Indeed, TikTok does not even operate in China.”

Attempts to try to force the sale of TikTok to an American company such as Oracle have stalled, with Trump complaining that the U.S. government wouldn’t get a cut of the sale.

Today’s order will not stop Americans who have already downloaded the apps from using them, but it will make it harder others from downloading them.

The biggest “winners” of this order are neither the American public nor the Trump administration but the companies that provide virtual private networks, a.k.a. VPNs, which can be used to bypass government-mandated bans and firewalls. TechCrunch notes that whenever a country attempts to ban TikTok, VPN companies see a surge in customers looking for ways to bypass the rules.

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• World’s Funniest Animals. The CW. Friday, September 18, 9 p.m.
• L.A.’s Finest. Fox. Monday, September 21, 8 p.m.
• Filthy Rich. Fox. Monday, September 21, 9 p.m.
• Manhunt: Deadly Games. CBS. September 21, 10 p.m.

Autumn has always been broadcast television’s spring, the time when new life—however Frankensteinish it may be in some years—bursts into bloom. But in 2020, The Year of the Plague, it’s more like the dead of winter. Television production has largely been shut down by the coronavirus, and the usual fall banquet of TV is more like a light snack, and of leftovers at that.

Of the dozen “new” shows debuting over the next month (down from 20 to 30 in a normal fall), a mere five are truly new productions. Everything else is a remake, a reboot or a refugee from the distant corners of the cable-TV gulag. Not since the days when television mainly consisted of test patterns and barn dances has new programming been less prized.

You can get a neat summation in the fall season’s very first week, when two of the four debuts are drama series that have already run in their entirety on the Spectrum video-on-demand service.

That doesn’t exactly make them Gilligan’s Island or Happy Days, aired so much that American babies are seemingly born with the scripts imprinted on their brains: Spectrum, still in its infancy, has relatively few viewers and isn’t even available in every state. But it takes a little gumption to label them premieres.

They are, however, solid entertainment. The stupidly-titled Manhunt: Deadly Games is a crisp, absorbing recounting of the search for the bomber who killed two people and injured 150 others at the 1996 Olympic games in Atlanta. And L.A.’s Finest is a female-buddy cop drama that shows a deft touch in mixing tart humor with impressively violent action sequences.

Comparisons between CBS’ Manhunt and Clint Eastwood’s film Richard Jewell, which largely follow the same story of law-enforcement and media screw-ups during the investigation of the Olympics bombing, seem inevitable. But I won’t be making them; I was in process of moving across the country in December when Eastwood’s film had its brief and disastrous theatrical run, and missed it. (Reason‘s Kurt Loder, however, didn’t.)

The two, however, shared the same general story line: How the FBI, with generous help from a grotesquely careless news media, first framed an innocent and heroic man—Richard Jewell, the sharp-eyed security guard who actually spotted the bomb and triggered an evacuation that saved hundreds of lives—for the crime, then dithered ineffectually for five years until apprehending the real bomber.

Veteran producer-director Michael Dinner does a good job identifying and defining his numerous characters (Eric Rudolph, the right-wing-militia bomber, doesn’t even appear until the third episode, and doesn’t get much screen time until the sixth), which helps clarify what might have been a confusing mélange of story lines.

Dinner’s aided immensely by winning turns by Gethin Anthony as a steely FBI agent who values arrest box scores vastly ahead of actual guilt or innocence, a performance the polar opposite of his wild-eyed portrayal of Charles Manson in NBC’s Aquarius, and Arliss Howard (Rubicon) as a homey BATF bomb expert who resists the FBI juggernaut.

Best of all is Cameron Britton (Stitchers) as Jewell, who manages to make his character at once a self-important and prickly would-be Rambo and yet also a vulnerable ordinary guy, confounded being flattened by indifferent and incompetent institutions.

If there’s a criticism to be made of Manhunt, it’s that the show is invested with a certain paranoia, with the FBI and the mayor of Atlanta almost openly plotting to come up with a quick arrest of anybody at hand.  “We need a suspect, and we need him before the Olympics close,” barks one senior FBI official at a meeting in Washington. Evidence? We don’t need no stinking evidence.

Maybe. But the fact that the FBI and BATF guys, as far as I can tell, are fictionalized characters makes me wonder how much evidence there really is. Enjoy Manhunt as a compelling cop drama, not as history.

Fox’s L.A.’s Finest has moments as grim-eyed as anything in Manhunt, but they’re leavened considerably by the badinage between robbery-homicide detectives Syd Burnett (Gabrielle Union, reprising a role she originated in the 2003 film Bad Boys II) and Nancy McKenna (Jessica Alba) as they crash cars and shoot perps. Everything from book clubs to the emailed photos of on-line dating candidates. (“Hey, is that a Toblerone?”) Also as amusing: McKenna’s teenage daughter Izzy (Sophie Reynolds), who reads woke tomes like A Feminist Guide to Female Serial Killers while brooding about the intersectionality of having a cop and a prosecutor for parents— “It’s like I live in a surveillance state.”

The bang-bang in L.A.’s Finest is long and loud—two car chases and two shootouts in the first 12 minutes—but it’s too well-staged to complain about. And the lurid back stories of the detectives—even their secrets have secrets—keep things interesting even in the infrequent moments when nobody is being tortured or killed.

The two shows swiped from Spectrum look even better when contrasted with the authentic network fare of the week. Fox’s Filthy Rich is based on a New Zealand nighttime soap of the same name that enjoys the twin distinctions of being the most expensive TV show in the country’s history as well as the most-heavily subsidized, consuming $10 million (U.S.) in taxpayer money before sinking without a trace.

It seems unlikely that remaking the show as a Southern gothic, drawing heavily on the Jim and Tammy Bakker scandals of the 1980s, will make it any more successful. Kim Cattrall and a don’t-quit-your-day-job supporting cast play members of a wealthy and secretly scandalous televangelist family whose secrets are exposed when the patriarch’s plane crashes and three scruffily illegitimate heirs surface. The only thing more hacky than the script is Cattrall’s wayward Southern accent.

Then there’s World’s Funniest Animals, The CW’s attempt to elevate surfing cat videos on the internet into the status of an actual TV show. Dogs skateboard! Ostriches dance! A Canadian cat tries to fiercely pounce on his own butthole, which seems metaphoric! A lemur eats a banana, which, God help us, is even less interesting than it sounds. And baby elephants wrestle teenage girls, but forget it, dude, it’s not in a back seat, and only the elephants are naked.

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This morning, USA Today published my op ed making the case for abolishing the constitutional requirement that the president must be a “natural born” citizen. This step would enable immigrants to become president, and also put an end to the sorts of ridiculous controversies over eligibility under the Clause that have arisen in every presidential election since 2008. The op ed is coauthored with Harvard Law School Prof. Randall Kennedy, one of the leading academic experts on racial and ethnic discrimination. I have been a big fan of Prof. Kennedy’s work since I was a young law student in the 1990s, and it is a great honor to coauthor this piece with him. We differ on many issues, but we completely agree on this one.

Here is an excerpt:

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California voters will be asked in November whether they want to end a ban on affirmative action in college admissions, even though the state college system’s own demographic data shows increasingly diverse campuses absent preferential treatment.

Proposition 209, passed in 1996, added to the state’s constitution a ban on racial or sex preferences in education and hiring decisions in government institutions. This meant that on top of forbidding discrimination against somebody on the basis of sex, race, or ethnicity, the state couldn’t give somebody an advantage in public college admissions or government jobs on the basis of these factors.

In June, Democratic lawmakers voted to put on the November ballot a measure that would strike down Proposition 209. It’s on the ballot as Proposition 16, and the new proposition would simply strike out the text added to the state’s constitution by Proposition 209.

The proposition is supported by the regents of the University of California, which is notable because former leaders of the college system led the campaign for Proposition 209 in the first place. Former regent Ward Connerly, a Republican, said at the time that affirmative action was intended to be a temporary measure to recover from decades of racist practices, but that “[t]hree decades later, affirmative action is permanent and firmly entrenched as a matter of public policy. … not because of any moral imperative but because it has become the battleground for a political and economic war that has racial self-interest as its centerpiece.”

The arguments for eliminating Proposition 209 are odd and not terribly compelling (which would explain why Prop. 16 is currently doing poorly in polls). Assembly Member Shirley Weber (D–San Diego) authored the bill that would become Prop. 16 and explained in June that “The ongoing pandemic, as well as recent tragedies of police violence, is forcing Californians to acknowledge the deep-seated inequality and far-reaching institutional failures that show that your race and gender still matter.” Affirmative action, notably, does nothing to solve either COVID-19 or police violence.

Coverage in The Los Angeles Times is giving a lot of attention to a study from U.C. Berkeley released in August claiming that in the immediate wake of Prop. 209, there was a drop in enrollment by black and Latino students in the University of California system, which drove down their future wages.

The study further argues that prior to Prop. 209, when affirmative action was permitted in California, white and Asian American students were not harmed because they just went to other high-quality schools and ended up with similar earnings.

Affirmative action proponents could argue that the market provided for those students who were negatively affected by affirmative action, which would appear to echo the libertarian argument that gay couples have access to a market for wedding cakes and thus Christian bakers should not be forced to act against their own beliefs under threat of government penalty.

But there is a significant difference here, and it is that gay couples can’t be forced to pay a bakery if it won’t make a cake for them. The same is not true for California’s state-run college system and applicants who would be accepted on the merits but rejected under affirmative action. Because about 12 percent of the University of California’s budget comes from state funding—a total of $3.69 billion for the 2018-2019 school year—and about 12 percent of California’s general fund goes to higher education across the state, bringing back affirmative action would require some Californians to pay into an education system that would likely discriminate against them and their children on the basis of their race if they are white or Asian. As one might imagine, this does not play well with leaders of some Asian organizations in California who are tired of being pitted against other minorities.

“This is a troubling trend where our public university in the state is taking backwards steps in history to allow racial favoritism in college admissions,” said Crystal Lu, president of the Silicon Valley Chinese Assn. Foundation, in June.

On Thursday, UC’s board of regents banned the use of race quotas in admissions, hiring, and contracting, but race and gender would be used as a factor in admissions (along with more typical considerations like grades, talents, and coursework). Even without the quotas, though, it’s part of the college system’s stated goal to more closely match the demographics of California’s school age population.

What’s a bit strange about this effort is that the data showing drops in minority attendance at the University of California is from 20 years ago. The U.C. system responded to the drop after Prop. 209’s passage by finding effective ways to increase minority representation at their colleges that don’t depend on racial favoritism.

Here’s what the Los Angeles Times noted in June at the same time as the U.C. regents were calling for repealing Prop. 209:

UC campuses increased outreach to underserved communities. UCLA, for instance, works with 20 Los Angeles Unified high schools and several Black churches in the Inland Empire to scout promising students and keep them on track. The strategy, spearheaded by Youlonda Copeland-Morgan, UCLA vice provost of enrollment management, has helped the campus increase the proportion of resident Black students admitted as freshmen from 3.7% in 2012 to 6.3% in 2019.

The measures have produced some progress. The share of admission offers to California freshmen who are Black increased from 4.3% in fall 2010 to 4.7% in 2019, while the Latino share grew from 22.9% to 34.3% during the same period. Asian Americans also increased from 33.9% to 35.72% while whites declined from 32.4% to 21.9%.

The share of students admitted to California colleges who are black is just one percentage point less than the estimated 5.8 percent of the state that is black, and the share of students admitted who are Latino is just five percentage points below the estimated 39 percent of the state that is Latino.

Most importantly, even without affirmative action, white college admissions are dropping as a percentage of the total enrolled population right now! The most recent data about college admissions in California actually shows that affirmative action is not needed to create a college campus that better reflects the state’s population.

The one big outlier in these stats is the percentage of the freshman that identifies as Asian, which is more than twice the 14 percent of the California population that is Asian. That would explain why Asian community leaders are so angry: The people trying to sell Californians on bringing back affirmative action want voters to think it’s those privileged white folks who are hogging all the seats in the lecture hall. But white enrollment is actually declining, which means returning affirmative action to California colleges will ultimately pit minority groups against each other.

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The 2020 presidential election is shaping up to be a choice between a man who wants to spend America further into oblivion to solve a problem that money can’t fix, and a man who believes being president gives him license to regulate the personal behaviors of more than 330 million people (and also wants to spend America into oblivion).

In the first corner is President Donald Trump, who is now trying to paper over his administration’s many, many early mistakes in handling the coronavirus by running the federal printing press at warp speed.

Trump on Wednesday agreed with Speaker of the House Rep. Nancy Pelosi (D-Calif.) that more stimulus spending is necessary. In May, Pelosi’s House passed a $3 trillion coronavirus stimulus bill—that’s $3 trillion on top of about $4 trillion in emergency coronavirus spending already authorized, some of which remains unspent—but the Republican-controlled Senate has refused to pass it. Citing concerns about the size of the deficit, Senate Republicans have pushed for a smaller package that would cost about $500 billion.

Trump left no doubt where he stood on Wednesday.

“I like the larger amount,” he said from the podium in the White House briefing room yesterday evening. “Some of the Republicans disagree, but I think I can convince them to go along with that.”

Over 13 million Americans remain out of work in large part due to the pandemic. There may be a good argument for a limited federal response that helps those most hurt by the pandemic and by mandatory shutdowns. Another round of business-focused aid might be necessary as the crisis drags on. But the “higher number” that Trump prefers in the House-passed stimulus bill is a mess of special interest handouts and unnecessary aid to states that shouldn’t be looking to the deeply indebted federal government for help in the first place.

It is difficult to comprehend just how much money the federal government has already spent because of the COVID-19 pandemic. Here’s a useful illustration—compare the total government spending during this year to the 2009 stimulus, which looks like a tiny bump in comparison:

Continuing to spend like this is beyond reckless.

Meanwhile, Trump’s opponent in November’s election also made coronavirus-related news yesterday—but not in a good way.

During a news conference in Delaware, former vice president Joe Biden said he believed the president has the authority to issue a national mandate requiring the wearing of face masks in public. “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,” Biden said, according to CBS News.

Biden has been beating the “mask mandate” drum since the Democratic National Convention but has not been forthcoming about the details of that plan, like how his administration would enforce such a rule.

Wednesday’s remarks, however, suggest that Biden’s team is actually building a legal case for having a president require that individuals dress in a certain way. That’s beyond ridiculous, of course, and seems likely to be unconstitutional.

Should all Americans wear masks when they are unable to socially distance during the pandemic? Yes. Should the president be ordering this behavior? Absolutely not.

As Elizabeth Nolan Brown wrote last month, the biggest problem with a national mask mandate is that someone has to enforce it. “That means either turning federal agents to the task of monitoring mask-wearing or giving more funds to state and local police departments so they can do so,” she argued. “No matter how it’s accomplished, there’s no way that doesn’t lead to more spending on law enforcement, more government surveillance, and more contact between cops and communities that are already overpoliced—all at a moment when millions of Americans are demanding just the opposite of that.”

Oh, and Biden also supports the passage of the House’s $3 trillion stimulus package—part of roughly $11 trillion in new spending that Biden’s campaign is proposing to pay for with about $3 trillion in new taxes. You can do that math on that one by yourself.

What neither Trump nor Biden has figured out yet is that it is impossible to stimulate your way out of an economic crisis that’s been created by people being unwilling or unable to spend money. When the federal printing press churned out $1,200 checks for every American at the start of the pandemic, personal savings rates shot through the roof. There are some people who might need additional help to get through this crisis, but throwing money at the rest of us—to say nothing of bailing out the postal service and the Kennedy Center—makes no sense.

The mask mandate has a similar problem. It is impossible to enforce, so the only realistic option is to convince Americans to voluntarily wear masks—which is something you can do without a mandate. The president, like all other government officials, should encourage the wearing of masks and endeavor to provide accurate, timely information to all people so they can make their own risk assessments. That’s all. Just please do that one thing.

It is a near certainty that either Trump or Biden will be elected president less than two months from now. It is also a near certainty, regardless of who wins, that federal spending will continue to rise and that presidential power will continue to metastasize.

There might be good reasons to vote for either Biden or Trump—and there are plenty of reasons to vote against both, as the new issue of Reason explores—but when it comes to their plans for the next stage of dealing with this pandemic, neither man deserves our confidence.

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