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In January 2019, the Congressional Budget Office (CBO) published one of its recurring looks at America’s likely budget and economic trajectory over the coming decade. These reports are useful for showing not just the current state of the fisc, but where nonpartisan government analysts think it will go and what might occur as a result. They offer both an of-the-moment snapshot and a rough sense of what to expect.

What the CBO said at the time was that the country’s debt and deficits were on a risky, perhaps even dangerous, track.

The annual budget deficit—the gap between government spending and tax revenues—would run about $900 billion in 2019, and it would push beyond $1 trillion every year starting in 2022. Debt as a percentage of the country’s total economy would rise steadily, reaching 93 percent of GDP by 2029, the highest level since the years directly following World War II.

Automatic spending on major entitlements would keep government spending high and make reductions difficult. Interest payments on the nation’s rising debt would become one of the country’s largest spending categories. The persistently high levels of debt and deficits, meanwhile, would serve as a drag on economic growth. Overall debt levels were on track to reach the highest levels in the nation’s history. 

All of this was reason to worry. “Such high and rising debt would have significant negative consequences, both for the economy and for the federal budget,” the report warned, with reduced national productivity and total wages plus an increased likelihood of a fiscal crisis. In an emergency scenario, policymakers might be more constrained from responding in the most effective way. Debt and deficits were a modest burden on the economy in good times. And the higher they ran, the more economic risk accumulated. 

Again, this was the outlook in 2019, when the unemployment rate was below five percent, when the deficit was projected to run about $900 billion over a 12-month span, when daily viral death tolls and case-count heat maps weren’t posted on major news sites like especially grisly weather reports.

In June of this year, the federal deficit was $864 billion.

That’s more than the entire annual budget deficits of 2017 ($665 billion) or 2018 ($779 billion), more than any year during the George W. Bush administration or Barack Obama’s second term. In June of 2019, the federal budget deficit was $8 billion, which almost seems like a typo now. 

The reason, of course, is the federal response to the coronavirus, especially the CARES Act and various other spending bills designed to prop up the economy, which the CBO now projects won’t recover for more than a decade. 

The most recent 10-year outlook warns that unemployment will remain above 10 percent for the rest of this year and remain elevated until past 2030. Economic growth is expected to be sluggish—probably $17 trillion less than the pre-COVID track we were on. 

As the last 18 months have shown, all of this could rapidly change. But the United States is in uncharted waters in terms of both public finances and their effect on the economy. And no one really knows where we’ll go from here.

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Twenty-five years ago, The Los Angeles Times published a two-part investigative series I wrote about fatal shootings by police in Ventura County.

The first article quoted both grieving relatives and police officers who themselves were traumatized after the shootings. “My son is dead. I want to know why,” said the mother of a 23-year-old who was shot by police after he had leveled an empty shotgun at them.

The second article explored the possibility of preventing such shootings through technology, policies, and training. It quoted a county prosecutor who investigated the shootings and who suggested that because so many of the people shot in justifiable homicides are drunk or under the influence of drugs, a reduction in substance abuse might help reduce the numbers of times police have to shoot people.

Protests after the death of George Floyd in the custody of Minneapolis police sent me back to these old news articles. Floyd wasn’t shot, but his death raises similar issues. I wondered what, if anything, has changed.

The anger and frustration in reaction to Floyd’s death, after all, surely has something to do with the feeling that this has been a known issue for decades now but has not been solved. That grim truth is unavoidable when reading these old news articles in the context of current developments.

That feeling is a nationwide phenomenon. My former New York Sun colleague Errol Louis, himself the son of a New York police inspector, wrote a column enumerating cases in New York from the 1970s, 1980s, and 1990s. “Demonstrations against police misconduct get particularly heated because communities remember prior injustices. Layer after layer of incidents over the years become part of a litany of cases stretching across decades,” he wrote, describing it as “a catalogue of pain and grievance passed down across generations in black communities.”

As The Washington Post put it in a 2019 article, “Years of controversial police shootings, protests, heightened public awareness, local police reforms and increased officer training have had little effect on the annual total.” The headline of that article? “Four Years in a Row, police nationwide fatally shoot nearly 1,000 people.”

The post-George Floyd protests have blossomed into a broader, long overdue cultural reckoning with race-related issues and inequities. It will be too bad, though, if the policing issues that set off the protests are forgotten amid a focus instead on other only distantly related topics such as antiracism education in elementary schools or reparations for slavery.

The final quote—the “kicker,” in newspaper jargon—in the solutions-from-experts part of my police-shootings series came from George Kelling, a criminology researcher and the author, with James Q. Wilson, the author of the influential March 1982 Atlantic article “Broken Windows: The police and neighborhood safety.”

“To George Kelling, who teaches policing at Harvard and Northeastern universities, the answer is community policing—putting more officers on foot patrol on regular beats to solve problems in neighborhoods they know,” I wrote.

Kelling told me, “When you’ve got police officers that are remote from communities, where they’re kept in cars, you’ve got edgy police, frightened police, and that’s where you get problems.”

I didn’t disclose it in the 1995 Times article, but Kelling had been my professor in a Harvard class, “Workshop in Criminal Justice: Municipal Policing.”

As Kelling and Wilson had described it in the “Broken Windows” article, a careful, scientific study of Newark, N.J., found that “officers walking beats had higher morale, greater job satisfaction, and a more favorable attitude toward citizens in their neighborhoods than did officers assigned to patrol cars.”

I tested the proposition as a student in Kelling’s class by spending part of a night with Cambridge, Mass., police officers walking the beat, and part of it in the back seat of a police car. Precisely as the theory predicted, the officers in the car described the area as dangerous and drug-infested, while the ones on foot described the same exact streets as a pretty good neighborhood. The officers in the car drove out of the neighborhood to pick up dinner; the ones on foot stopped in at a local establishment.

Kelling died in 2019 and Wilson died in 2012, after significant crime reductions (the causes of which are hotly debated) but before either man could help police or any other government- or human-run agency achieve anything close to perfection. In unionized government bureaucracies and even in many other human organizations, change is hard and slow.

Let’s hope, though, that the changes needed now finally happen quickly enough that I’m not needed back making these same points again in another 25 years, which would be 2045.

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Presumptive Democratic presidential nominee Joe Biden has spent decades managing a “moderate” balancing act. The result is a wobbly policy platform that attempts to appeal to everyone but feels fully satisfactory to few.

Take the candidate’s collaboration with Bernie Sanders, the Vermont senator who recently ran against him for the Democratic nomination. The duo’s “Unity Task Force,” released last week, tackled a host of issues, including qualified immunity, the legal framework that lets public officials who violate your rights avoid federal civil rights suits.

A tripartisan push is underway to change this. Reps. Justin Amash (L–Mich.) and Rep. Ayanna Pressley (D–Mass.) introduced a bill recently to end the doctrine entirely. Though the GOP has been slower to warm to the subject, Sen. Mike Braun (R–Ind.) crafted his own legislation that would radically alter qualified immunity, allowing officials to invoke it only when relevant case law, federal regulation, federal statutes, and state statutes specifically permit the conduct in question—essentially reversing the current approach, in which officials are held liable only if the way they violated your rights has been described with exacting detail in previous case law.

Where does Biden fall on the issue? It’s not completely clear. “We will also act to ensure that victims of federal, state, or local law enforcement abuses of power can seek justice through civil litigation by reining in the doctrine of qualified immunity to increase police accountability,” the task force’s recommendations read. We can’t be sure what exactly that means, though we know that the Sanders faction wasn’t happy about it. The panel “got into heated debates” over qualified immunity specifically, reports Politico. “Progressives pushed to end it, but Biden appointees agreed only to sign onto a commitment to rein in the rule.”

“It either exists or it doesn’t,” noted journalist Radley Balko on Twitter. “You can’t tell the courts to only enforce it in the cases where you support it.”

Biden’s hesitance here isn’t surprising in the context of his attempt at a middle-of-the-road modus operandi. But even the Democratic House police reform bill proposed to eradicate the doctrine for cops. (Amash’s and Braun’s respective bills apply to all public officials, such as corrupt college administrators.) Biden’s tepid response here is more in line with moderates in the Republican Party than his own party.

Remember that Biden was a spirited force behind the 1994 crime bill. With its three-strike rule, that landmark legislation saw many people sentenced to life in prison for a violent felony if two previous offenses, including drug crimes, were on their record. But his problematic record does not begin and end with that law. Biden conceded last year that one measure he helped push through the Senate—sentencing disparities for crack versus cocaine—was a “big mistake.” Last month he said concerns surrounding his criminal justice record are “legitimate.”

Pledging concretely to scrap qualified immunity is an opportunity to protect the sorts of vulnerable Americans he failed to consider in 1994. Consider some of the people who have used qualified immunity as a shield over the years. Like the cops in Fresno, California, who allegedly stole $225,000 while executing a search warrant. Or the cops who assaulted and arrested a man for standing outside of his own home. Or the sheriff’s deputy who shot a 10-year-old, or the officer who shot a 15-year-old. Or the prison guards who locked an inmate in two cells, one filled with raw sewage and the other “massive amounts” of human feces. 

Biden’s demurral on qualified immunity makes more sense—as politics, not as policy—in light of the candidate’s cozy long-term relationship with police unions. He was at the front lines of a yearslong effort to pass a federal Police Officer’s Bill of Rights, which would have made it considerably more difficult to investigate police misconduct internally. Though the bill never become law as a standalone piece of legislation, an altered version was included in the Biden-Thurmond Violent Crime Control Act.

Just five years ago, Biden was lauding his 1994 crime bill at a dinner for the National Association of Police Organizations (NAPO), a group of police unions and related associations. “There wouldn’t have been a Biden crime bill,” he said in May 2015, “there wouldn’t have been that crime bill that put 100,000 cops in the street in the first place were it not for the fact that from the very beginning was the staunchest, staunchest advocate for it.”

But that group doesn’t seem any happier with Biden’s compromises than criminal justice reformers are. “For Joe Biden, police are shaking their heads because he used to be a stand-up guy who backed law enforcement,” said Bill Johnson, executive director of NAPO. “But it seems in his old age, for whatever reason, he’s writing a sad final chapter when it comes to supporting law enforcement.”

As of now, though, that final chapter doesn’t seem to include a sunset on qualified immunity.

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“The July 10 update is based on data received by CDC through June 29, 2020″; the 0.65% is the probability of dying once infected. As always, take these with a grain of salt. Among other things,

Many uncertainties remain. For example, current estimates of Infection Fatality Ratios do not account for time-varying changes in hospital capacity (e.g., in bed capacity, ventilator capacity, or workforce capacity) or for differences in rates of underlying health conditions that may contribute to a higher frequency of severe illness in congregate and community settings.  A nursing home, for example, may have a high incidence of infection (due to close contacts among many individuals) and severe disease (due to a high rate of underlying conditions) that does not reflect the frequency or severity of disease in the broader population of older adults.

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Today, the US Court of Appeals for the Second Circuit issued a ruling denying en banc rehearing in New York v. Department of Justice, an important sanctuary cities case. Thus, the earlier decision by a three-judge panel will not be reconsidered by the full Second Circuit (which has a total of twelve active judges). The panel decision was the Trump administration’s sole victory in a long series of cases arising from its attempts to impose immigration-related conditions on state and local governments that receive Byrne Memorial Justice Assistance Grants intended to aid law enforcement operations. The First, Third, Seventh, and Ninth Circuits have all issued rulings striking down the conditions because they were never authorized by Congress, which alone controls the power of the purse.  Numerous district court decisions addressing these issues have reached the same conclusion.

I summarized the flaws of the Second Circuit panel ruling in detail here. The decision has also been severely criticized in recent First Circuit and Seventh Circuit decisions addressing the same issue.

The Second Circuit rarely grants en banc reconsideration of panel decisions. This case is unusual in how close it came to doing so. Six of the twelve active judges voted to deny reconsideration without expressing any concerns about the panel decision (two of them wrote opinions defending it). Four others voted to grant the petition for rehearing, and in the process joined opinions explaining why they think the panel decision was badly wrong. In a concurring opinion joined by Judge Hall, Judge Raymond Lohier indicated he concurred in the denial of rehearing en banc only because the issue can be more quickly resolved by the Supreme Court:

Until today, every single circuit judge to have considered the questions presented by this appeal has resolved them the same way. That’s twelve judges—including one former Supreme Court Justice—appointed by six different presidents, sitting in four separate circuits, representing a remarkable array of views and backgrounds, responsible for roughly forty percent of the United States population, who, when asked whether the Attorney General may impose the challenged conditions, have all said the same thing: No.

Undeterred, the panel breaks course in an opinion as novel as it is misguided. As my colleagues explain in their dissent from the denial of  rehearing in banc, and as Justice Souter and Judges Selya, Barron, Rendell, Ambro, Scirica, Rovner, Bauer, Manion, Wardlaw, Ikuta, and Bybee have  collectively demonstrated, the panel opinion misreads statutory text,  misconstrues constitutional doctrine, and mistakes the conclusion that it prefers for the one that the law requires The task of remedying these very serious errors will now fall to the Supreme Court. I vote against rehearing in banc so  that it may do so sooner rather than later. Indeed, if there is a single panel decision that the Supreme Court ought to review from this Circuit next Term, it is this one….

This error creates an important circuit split that needs to be repaired definitively and now. Unfortunately, the split arises at the end of our Term. Our already cumbersome process for proceeding in banc, slowed by a pandemic, is not likely to correct anything anytime soon. And even if we rectified the panel’s error, the Department, encouraged by the panel’s decision, would continue to peddle its false and contorted theory to the remaining circuits that have yet to debunk it. Under these circumstances, the better course, in my view, is for the Supreme Court to grant certiorari and reverse. It can do so faster than we can, and it alone can forestall the spread of this grievous error.

The four dissenting judges also call on the Supreme Court to take the case. Even more interestingly,  Judge Jose Cabranes, one of the judges who joined the panel decision, also appears to do so in his concurring opinion supporting denial of rehearing en banc. “There can be little doubt, he writes, “that, in the fullness of time, the conflict among the Circuits will be resolved by our highest tribunal.”

As Judge Lohier explains, the Second Circuit panel decision is an anomalous departure from rulings on the same issue by other circuits, including by prominent conservative judges such as Bybee, Rovner, Selya, and Manion. He also correctly points out that the really big issue in this case is not the precedent it sets for the Byrne program, but the way in which it would allow the executive branch to exploit seemingly ambiguous statutory language to impose new grant conditions on state and local governments that were never authorized by Congress. That kind of executive authority is a menace to both federalism and separation of powers.

The litigation over the Byrne Grant conditions is just one part of a broader legal battle over sanctuary jurisdictions, which also includes a number of other issues. I reviewed them in this Texas Law Review article. As I explained in the article and elsewhere, the legal struggle here has important implications for federalism that go far beyond the specific issue of sanctuary cities. If the executive can usurp Congress’ power of the purse in this way, it would have broad leverage over states and localities on a wide range of issues. Conservatives who might be happy to see Donald Trump use that power to target sanctuary cities might be less pleased to see what Joe Biden does with it if he wins the 2020 election.

Normally, I would agree with the Second Circuit judges’ view that the Supreme Court is likely to take this case. The issues raised are important ones, and the Second Circuit ruling creates a split between the circuits of a kind the Court often seeks to resolve. But these are not normal times.

Recently, the Court denied the Trump administration’s petition to review the Ninth Circuit’s decision in favor of California in the administration’s lawsuit against California’s “sanctuary state” law. There are a number of possible explanations for this decision. But one possibility is that the Court is not eager to take a sanctuary cities case at this time.

In addition, if Joe Biden wins the November election—a very plausible outcome, given current polling trends—he and his attorney general will almost certainly do away with the Trump administration’s immigration-related Byrne Grant conditions. That could moot out the case before the Supreme Court has a chance to decide it. Even if the Court grants a petition for certiorari relatively soon, the case is unlikely to be argued until late this fall, and a decision probably would not be issued until well into next year.

If Biden becomes president and eliminates the dubious immigration conditions, the Second Circuit ruling will have little effect on this particular grant program. But it would still be a dangerous precedent for other executive branch grant-condition power grabs.

Of course the Supreme Court could try to hear and decide the case on an accelerated schedule. I think that’s unlikely, but I could be wrong. It’s also possible they are willing to take the risk of having the case mooted in the event of a Biden victory.

For the moment, my tentative view is that there is indeed a substantial likelihood the Court will take the case. But that probability is not as high as it would be if the same kind of circuit split on an important issue had arisen in less unusual circumstances.

NOTE: I joined an amicus brief urging en banc rehearing in this case, filed on behalf of myself and several other legal scholars.

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