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The Constitutionality of Territorial Courts

I posted yesterday about my general claim that state courts, territorial courts, and the like are constitutional even though they do not comply with Article III. Here I’ll post about why.

The key is in four words of Article III that we don’t usually pay that much attention. It says: “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”

The four key words are “of the United States.” That means that Article III does not speak to who can exercise the judicial power of other governments. And that is why there is no Article III problem with state courts, which exercise the judicial power of their respective states—the judicial power of the state of Connecticut, and so on.

All of this might seem obvious, but it extends to less obvious conclusions. The U.S. territories, for instance, are not states. But they have been governed by non-Article-III courts more or less since the founding. The Supreme Court upheld these courts in a confusing opinion known as American Insurance Co. v. Canter, but people aren’t quite sure why.

The answer is that territorial courts exercise the judicial power of their territories, just as state courts exercise the judicial power of their states. Indeed, the territorial courts upheld during the 19th century had their powers described in just those terms.

And that is true even though they were created by Congress. Congress has the power to govern territories and set up territorial governments, but those territorial governments have always been thought to exercise the powers of their own territories. That’s why territorial legislatures don’t have to be appointed by the President, and the same logic goes for territorial courts. (It also answers one of the several questions at issue in the PROMESA litigation about Puerto Rico bankruptcy, though as I’ve written that statute is unconstitutional for other reasons.)

The same logic also explains the constitutionality of tribal courts, of foreign, multinational, and international tribunals, and of some of the motley courts that Congress has recognized over time. As always, for more on this feel free to read the long article.

Tomorrow I’ll explain why military courts and so-called “Article I courts” are different.

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How the Coronavirus Might Kickstart the 21st Century

We know little for sure about how the COVID-19 pandemic is going to play out, especially in terms of the number of dead and the effect on the global economy. But this much seems to be a damn good bet: The disease is acting as an accelerant in creating a far more dispersed, decentralized, and devolved world in which we will paradoxically feel more connected than ever before while also keeping our literal and figurative distance from one another. In a year’s time—and a decade’s, too—you will be living, learning, and working far more online than you are now.

In short, rapid innovations in learning, working, and living online could be a silver lining. Welcome to the 21st century we dreamed about 30 years ago but never quite had the energy or focus to actually implement. Since the 1990s, champions of what was then called cyberspace and digital culture prophesied about “creating a world that all may enter without privilege or prejudice accorded by race, economic power, military force, or station of birth.” Every issue of the early Wired promised a peaceful “Digital Revolution” that would whip “through our lives like a Bengali typhoon” and create real and virtual worlds in which we could let our 3D-printed freak flags fly however we chose.

In 1990’s Life After Television, George Gilder (then widely known for his reactionary, anti-feminist polemic Sexual Suicide) gazed upon networked machines he called “telecomputers” and dreamed of a world in which political and corporate hierarchies were smashed by user-generated “hetarchies” and “you could spend a day interacting with Henry Kissinger, Kim Basinger, or Billy Graham” on whatever terms were mutually agreed upon. With the end of “bottlenecks” caused by centralized political, technological, and economic control, telecomputers would revitalize “family, religion, education, and the arts” and other institutions that “preserve and transmit civilization to new generations.”

Much of all that has become reality in some recognizable forms. With the rise of the internet and the user-friendly interface laid on top of it, the World Wide Web as a global platform, the world has become much more inclusive and all participants, even the poorest among us, have more options and more control over how we work, what we consume, and how we relate to one another. But if we’re being honest with ourselves, we’ve half-assed it until now. The digital future has figuratively sat in our living room like a piece of complicated and ambitious exercise equipment that, once purchased, is rarely used and now serves mostly as a place to drape dirty clothes.

Our response to COVID-19 has great potential to change all that. The changes that persist after the crisis has passed could, finally, radically change how we work and learn, get medical care, shop, and consume popular culture as more and more of our lives will take place online and, hopefully, on our own personalized terms.

Over 30 states have shuttered K-12 public schools and districts everywhere are scrambling to figure out how to implement distance-learning programs to salvage some semblance of continuing instruction. Colleges across the country have canceled classes at least through the end of March and it seems iffy whether they will return at all for the spring semester. Educational institutions at all levels are scrambling to ramp up their ability to stream classes, which is not just a bandwidth issue but one of preparing instructors on how to teach and students to learn via the internet. While participation in distance learning has grown by leaps and bounds since 2000, fewer than 6 percent of all public K-12 students take a majority of all their courses online. There’s every reason to believe that once they get a sense of the flexibility and offerings available, those numbers will rise substantially.

The president is distributing government guidelines urging workers who can do their jobs via the internet to do so until further notice. Among the journalists and analysts who write about telecommuting, working from home is nothing new. I’ve been working from home basically full time since 1996, when I moved from Reason‘s Los Angeles headquarters to the remote prison town of Huntsville, Texas, where my then-wife had gotten a faculty position at Sam Houston State University. But what many “knowledge economy” workers take for granted is anything but common. While the share of workers telecommuting has been increasing steadily over the past 20 or more years, just 3.6 percent of the American workers “currently work at home half-time or more,” according the American Community Survey. 

Yet over half of all employees have a job where at least some of what they do could be done remotely and fully 80 percent of workers pre-COVID-19 say they want to work from home at least part of the time, according to analyst Kate Lister. Free or nearly free video- and teleconferencing enabled by Google, Skype, and Zoom is booming and won’t stop once we all test negative for illness. It’s inconceivable that working from home won’t gain vastly in popularity (both among workers and management) even when the government says it’s OK to return to our traditional workplaces.

Our lives as consumers will change definitively too, for goods and services that are both banal and important. In the past few years, for instance, telemedicine has grown in popularity, especially for counseling services, but still accounts for less than 1 percent of insurance claims. Now it’s being encouraged not just by overburdened health-care systems but by the very governments that long frowned upon it. Effective March 6, new regulations loosened the ability of Medicare and Medicaid providers to dispense medical advice via the internet. Movie theaters and sports leagues have long been suffering declines in attendance, as high-quality, cheap flatscreen TVs and sound systems proliferated and streaming services starting delivering most of what we wanted whenever we wanted it. Even as the number of theater screens has continued to grow and the number of films getting theatrical releases continues to climb, fewer people want to buy tickets for a night out. Of course people will head back out to the local multiplex and sports venues once they are reopened, but they will likely number even fewer than before. 

COVID-19 is a windfall not just for Amazon’s traditional products—the online-retail behemoth is hiring an additional 100,000 workers to meet demand over the next few weeks or months—but for online grocery delivery services too. Even before the outbreak, business had been booming online, with sales more than doubling to $26 billion between 2016 and 2018, even while serving fewer than 10 percent of customers.

Especially among media people who report on such topics, the triumph of e-commerce has been a given for at least a decade if not longer. But it was only last February that “online sales narrowly beat general merchandise stores, including department stores, warehouse clubs and super-centers. Non-store retail sales last month accounted for 11.813 percent of the total, compared with 11.807 percent for general merchandise.” When other types of purchases such as houses, cars, and prepared meals are factored in, bricks-and-mortar commerce still outstrips online, but that is changing and will certainly be super-charged by the current lockdown. Indeed, even before COVID-19, companies such as Carvana and Vroom were starting to advertise a fully online experience to buy automobiles, while more and more parts of house buying such as finding listings and doing virtual tours have moved online. 

While much was made of minor upticks in people moving to cities in the early 2010s, the longer-term trend has been about Americans increasingly choosing the suburbs, even before COVID-19. As demographer William H. Frey of the Brookings Institution wrote last year, “In many respects, the city growth dominance earlier in the decade was an aberration of historical patterns— perhaps a result of the down housing market following the Great Recession, and the ‘stuck in place’ millennial generation. Now, the new census data suggest that earlier suburbanization patterns are re-emerging.” Suburban living (and small-town living, for that matter) are made more attractive when goods and cultural offerings once only available in big cities are made readily available online and through next-day (or even same-day) delivery. Add in the fear factor of dense populations and infection, and it seems like COVID-19 will speed up the dissipation of urban areas.

Then there is the governmental response. Paradoxically, local, state, and federal governments are flexing, enacting emergency measures rarely or never seen before in peacetime. Across the country, mayors and governors are declaring states of emergencies and shutting down bars, gyms, and other gathering places, putting limits on the number of people who can gather at one time, and even issuing curfews. Yet these same leaders—and members of the federal government from the president on down—are also waiving or loosening longstanding regulations, at least temporarily. The Transportation Security Administration has reversed course and now allows 12-ounce bottles of hand sanitizer where just days ago it insisted that any container with more than 3.4 ounces of fluid or gel was an unacceptable security risk. The Food and Drug Administration, which has famously dragged its heels on all sorts of expedited approvals even for drugs shown safe and effective in Europe, issued almost immediate approval for a new coronavirus testing protocol. The governor of Massachusetts deigned to allow medical professionals licensed to practice in other states to work in the Bay State without going through a timely and expensive certification process.

At virtually every level in the United States, the government response to COVID-19 has been mostly incompetence on the one hand and overreaction on the other. Arguably, the most important conversation we will have as a society post-outbreak is one about the lessons being taught in real time about limited-but-effective public policy. Countries such South Korea and Singapore, despite authoritarian tendencies, responded swiftly and successfully to the outbreak in ways that foregrounded transparency and information-sharing rather than lockdowns and mandatory closings and quarantines (though both nations did some of both). If past is prologue, governments at all levels will be slow to give up the power they are currently exercising, but the weight of public opinion and examples from our work, cultural, and commercial lives might prove an effective counterweight.

President Trump recently said that it would likely be July before the current crisis passed. Whenever the COVID-19 pandemic recedes, though, it will likely change the coming decades every bit as much as the 9/11 attacks and the 2008 financial crisis changed the past 20 years. Looking back on the cultural, economic, and political responses to those events, it’s hard to say that the country responded wisely. The wars in Afghanistan and Iraq, the explosion in government spending under first George W. Bush and then Barack Obama are harder to justify with every passing year. As a society, rather than coming together, we became increasingly polarized and distrustful of public and private institutions. That dynamic, however understandable and predictable, has only made things worse.

This time, we stand on a different threshold. We are wearier and warier than ever, for sure, of what the government might do for us. Even in the early days of this situation, we know that a strong response to the pandemic ultimately relies more on our actions as individuals with agency and autonomy than it does on the ministrations of the Donald Trumps and Joe Bidens and Bernie Sanderses of the world.

The best possible outcome is one that leads to the future that helped fire up our imaginations 30 years ago to dream of a world in which we all were able to participate more fully, express ourselves more cogently, and live how and where we desire. Ironically, the shift online being forced by COVID-19—a global health crisis that many are comparing to the 1918 flu epidemic, one of the defining events of the old 20th century—might finally conjure the future as we once dared to dream about it.

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via IFTTT

How the Coronavirus Might Kickstart the 21st Century

We know little for sure about how the COVID-19 pandemic is going to play out, especially in terms of the number of dead and the effect on the global economy. But this much seems to be a damn good bet: The disease is acting as an accelerant in creating a far more dispersed, decentralized, and devolved world in which we will paradoxically feel more connected than ever before while also keeping our literal and figurative distance from one another. In a year’s time—and a decade’s, too—you will be living, learning, and working far more online than you are now.

In short, rapid innovations in learning, working, and living online could be a silver lining. Welcome to the 21st century we dreamed about 30 years ago but never quite had the energy or focus to actually implement. Since the 1990s, champions of what was then called cyberspace and digital culture prophesied about “creating a world that all may enter without privilege or prejudice accorded by race, economic power, military force, or station of birth.” Every issue of the early Wired promised a peaceful “Digital Revolution” that would whip “through our lives like a Bengali typhoon” and create real and virtual worlds in which we could let our 3D-printed freak flags fly however we chose.

In 1990’s Life After Television, George Gilder (then widely known for his reactionary, anti-feminist polemic Sexual Suicide) gazed upon networked machines he called “telecomputers” and dreamed of a world in which political and corporate hierarchies were smashed by user-generated “hetarchies” and “you could spend a day interacting with Henry Kissinger, Kim Basinger, or Billy Graham” on whatever terms were mutually agreed upon. With the end of “bottlenecks” caused by centralized political, technological, and economic control, telecomputers would revitalize “family, religion, education, and the arts” and other institutions that “preserve and transmit civilization to new generations.”

Much of all that has become reality in some recognizable forms. With the rise of the internet and the user-friendly interface laid on top of it, the World Wide Web as a global platform, the world has become much more inclusive and all participants, even the poorest among us, have more options and more control over how we work, what we consume, and how we relate to one another. But if we’re being honest with ourselves, we’ve half-assed it until now. The digital future has figuratively sat in our living room like a piece of complicated and ambitious exercise equipment that, once purchased, is rarely used and now serves mostly as a place to drape dirty clothes.

Our response to COVID-19 has great potential to change all that. The changes that persist after the crisis has passed could, finally, radically change how we work and learn, get medical care, shop, and consume popular culture as more and more of our lives will take place online and, hopefully, on our own personalized terms.

Over 30 states have shuttered K-12 public schools and districts everywhere are scrambling to figure out how to implement distance-learning programs to salvage some semblance of continuing instruction. Colleges across the country have canceled classes at least through the end of March and it seems iffy whether they will return at all for the spring semester. Educational institutions at all levels are scrambling to ramp up their ability to stream classes, which is not just a bandwidth issue but one of preparing instructors on how to teach and students to learn via the internet. While participation in distance learning has grown by leaps and bounds since 2000, fewer than 6 percent of all public K-12 students take a majority of all their courses online. There’s every reason to believe that once they get a sense of the flexibility and offerings available, those numbers will rise substantially.

The president is distributing government guidelines urging workers who can do their jobs via the internet to do so until further notice. Among the journalists and analysts who write about telecommuting, working from home is nothing new. I’ve been working from home basically full time since 1996, when I moved from Reason‘s Los Angeles headquarters to the remote prison town of Huntsville, Texas, where my then-wife had gotten a faculty position at Sam Houston State University. But what many “knowledge economy” workers take for granted is anything but common. While the share of workers telecommuting has been increasing steadily over the past 20 or more years, just 3.6 percent of the American workers “currently work at home half-time or more,” according the American Community Survey. 

Yet over half of all employees have a job where at least some of what they do could be done remotely and fully 80 percent of workers pre-COVID-19 say they want to work from home at least part of the time, according to analyst Kate Lister. Free or nearly free video- and teleconferencing enabled by Google, Skype, and Zoom is booming and won’t stop once we all test negative for illness. It’s inconceivable that working from home won’t gain vastly in popularity (both among workers and management) even when the government says it’s OK to return to our traditional workplaces.

Our lives as consumers will change definitively too, for goods and services that are both banal and important. In the past few years, for instance, telemedicine has grown in popularity, especially for counseling services, but still accounts for less than 1 percent of insurance claims. Now it’s being encouraged not just by overburdened health-care systems but by the very governments that long frowned upon it. Effective March 6, new regulations loosened the ability of Medicare and Medicaid providers to dispense medical advice via the internet. Movie theaters and sports leagues have long been suffering declines in attendance, as high-quality, cheap flatscreen TVs and sound systems proliferated and streaming services starting delivering most of what we wanted whenever we wanted it. Even as the number of theater screens has continued to grow and the number of films getting theatrical releases continues to climb, fewer people want to buy tickets for a night out. Of course people will head back out to the local multiplex and sports venues once they are reopened, but they will likely number even fewer than before. 

COVID-19 is a windfall not just for Amazon’s traditional products—the online-retail behemoth is hiring an additional 100,000 workers to meet demand over the next few weeks or months—but for online grocery delivery services too. Even before the outbreak, business had been booming online, with sales more than doubling to $26 billion between 2016 and 2018, even while serving fewer than 10 percent of customers.

Especially among media people who report on such topics, the triumph of e-commerce has been a given for at least a decade if not longer. But it was only last February that “online sales narrowly beat general merchandise stores, including department stores, warehouse clubs and super-centers. Non-store retail sales last month accounted for 11.813 percent of the total, compared with 11.807 percent for general merchandise.” When other types of purchases such as houses, cars, and prepared meals are factored in, bricks-and-mortar commerce still outstrips online, but that is changing and will certainly be super-charged by the current lockdown. Indeed, even before COVID-19, companies such as Carvana and Vroom were starting to advertise a fully online experience to buy automobiles, while more and more parts of house buying such as finding listings and doing virtual tours have moved online. 

While much was made of minor upticks in people moving to cities in the early 2010s, the longer-term trend has been about Americans increasingly choosing the suburbs, even before COVID-19. As demographer William H. Frey of the Brookings Institution wrote last year, “In many respects, the city growth dominance earlier in the decade was an aberration of historical patterns— perhaps a result of the down housing market following the Great Recession, and the ‘stuck in place’ millennial generation. Now, the new census data suggest that earlier suburbanization patterns are re-emerging.” Suburban living (and small-town living, for that matter) are made more attractive when goods and cultural offerings once only available in big cities are made readily available online and through next-day (or even same-day) delivery. Add in the fear factor of dense populations and infection, and it seems like COVID-19 will speed up the dissipation of urban areas.

Then there is the governmental response. Paradoxically, local, state, and federal governments are flexing, enacting emergency measures rarely or never seen before in peacetime. Across the country, mayors and governors are declaring states of emergencies and shutting down bars, gyms, and other gathering places, putting limits on the number of people who can gather at one time, and even issuing curfews. Yet these same leaders—and members of the federal government from the president on down—are also waiving or loosening longstanding regulations, at least temporarily. The Transportation Security Administration has reversed course and now allows 12-ounce bottles of hand sanitizer where just days ago it insisted that any container with more than 3.4 ounces of fluid or gel was an unacceptable security risk. The Food and Drug Administration, which has famously dragged its heels on all sorts of expedited approvals even for drugs shown safe and effective in Europe, issued almost immediate approval for a new coronavirus testing protocol. The governor of Massachusetts deigned to allow medical professionals licensed to practice in other states to work in the Bay State without going through a timely and expensive certification process.

At virtually every level in the United States, the government response to COVID-19 has been mostly incompetence on the one hand and overreaction on the other. Arguably, the most important conversation we will have as a society post-outbreak is one about the lessons being taught in real time about limited-but-effective public policy. Countries such South Korea and Singapore, despite authoritarian tendencies, responded swiftly and successfully to the outbreak in ways that foregrounded transparency and information-sharing rather than lockdowns and mandatory closings and quarantines (though both nations did some of both). If past is prologue, governments at all levels will be slow to give up the power they are currently exercising, but the weight of public opinion and examples from our work, cultural, and commercial lives might prove an effective counterweight.

President Trump recently said that it would likely be July before the current crisis passed. Whenever the COVID-19 pandemic recedes, though, it will likely change the coming decades every bit as much as the 9/11 attacks and the 2008 financial crisis changed the past 20 years. Looking back on the cultural, economic, and political responses to those events, it’s hard to say that the country responded wisely. The wars in Afghanistan and Iraq, the explosion in government spending under first George W. Bush and then Barack Obama are harder to justify with every passing year. As a society, rather than coming together, we became increasingly polarized and distrustful of public and private institutions. That dynamic, however understandable and predictable, has only made things worse.

This time, we stand on a different threshold. We are wearier and warier than ever, for sure, of what the government might do for us. Even in the early days of this situation, we know that a strong response to the pandemic ultimately relies more on our actions as individuals with agency and autonomy than it does on the ministrations of the Donald Trumps and Joe Bidens and Bernie Sanderses of the world.

The best possible outcome is one that leads to the future that helped fire up our imaginations 30 years ago to dream of a world in which we all were able to participate more fully, express ourselves more cogently, and live how and where we desire. Ironically, the shift online being forced by COVID-19—a global health crisis that many are comparing to the 1918 flu epidemic, one of the defining events of the old 20th century—might finally conjure the future as we once dared to dream about it.

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Italian Daily Death Rate Up 20% Because of Coronavirus, Lombardy Up About 80%

Italy’s population is about 60 million, and its normal death rate is 10.6 per 1000, for about 640,000 deaths per year, or about 1750 per day; the 350 or so extra deaths per day over the last couple of days (if this worldometers.info data is correct) are about 20%.

But apparently about 2/3 of the deaths have been in Lombardy (in Northern Italy; Milan is the capital), which has about 1/6 of Italy’s population. If the daily deaths are likewise 2/3 in Lombardy (not certain, because it’s possible that the geographical incidence of the deaths has changed over time), then we’re talking about 240 or so extra deaths per day on top of the usual 300 or so in Lombardy, or about 80%.

These are unusually high numbers, of course, since Italy appears to have the highest death rate of any country right now; and of course they are just the numbers for the last couple of days. (Daily deaths in China have apparently fallen sharply, after climbing sharply and then staying high for a couple of weeks.) They are also back-of-the-envelope estimates based on imperfect data, but I hope they give a more useful perspective on the magnitude of the epidemic than do the raw numbers.

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Italian Daily Death Rate Up 20% Because of Coronavirus, Lombardy Up About 80%

Italy’s population is about 60 million, and its normal death rate is 10.6 per 1000, for about 640,000 deaths per year, or about 1750 per day; the 350 or so extra deaths per day over the last couple of days (if this worldometers.info data is correct) are about 20%.

But apparently about 2/3 of the deaths have been in Lombardy (in Northern Italy; Milan is the capital), which has about 1/6 of Italy’s population. If the daily deaths are likewise 2/3 in Lombardy (not certain, because it’s possible that the geographical incidence of the deaths has changed over time), then we’re talking about 240 or so extra deaths per day on top of the usual 300 or so in Lombardy, or about 80%.

These are unusually high numbers, of course, since Italy appears to have the highest death rate of any country right now; and of course they are just the numbers for the last couple of days. (Daily deaths in China have apparently fallen sharply, after climbing sharply and then staying high for a couple of weeks.) They are also back-of-the-envelope estimates based on imperfect data, but I hope they give a more useful perspective on the magnitude of the epidemic than do the raw numbers.

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via IFTTT

Stop It With the Coronavirus Curfews Already

Now that sports have been effectively canceled, there is apparently a new competition afoot in this coronavirus-cursed country: Politicians vying to see who can impose the most freedom-infringing clampdown in the name of flattening the curve.

New Jersey Gov. Phil Murphy on Monday evening “strongly suggested” a statewide curfew between 8 p.m. and 5 a.m., with exceptions made only for emergencies and “essential travel,” whatever that means. For now, this designation falls short of an official order, resting instead in the vaguely threatening legal zone of strong discouragement, though the governor has literally promised “more draconian steps” in the future.

The move came concurrently as a “shelter in place” order for the 7 million residents of six counties in the San Francisco Bay Area, who are now permitted to leave their own homes only “to provide or receive certain essential services or engage in certain essential activities and work for essential business or government services.” Violating the order is a misdeameanor that—according to the order!—”constitutes an imminent threat and creates an immediate menace to public health.” Don’t worry, though; San Francisco Police Chief William Scott said that cops will be taking a “compassionate, commonsense approach” to enforcement.

“We’re absolutely considering that,” New York City’s clownpants mayor Bill de Blasio added this morning.

It is worth thinking this stuff through a bit more than your average politician. I sit squarely on the worst-case-scenario side of the spectrum and have been practicing the kinds of social distancing de Blasio is only belatedly preaching, but there are a least four main commonsense objections to curfews that arise even before you start considering the constitutionality and massive economic impact of it all.

1) Shutting most everything down creates real shortages, not just the no-toilet-paper-at-Whole-Foods kind. The more people and industries you order locked down, the more supply chains get broken, the more stores shutter, the fewer goods are available. We all still need stuff, even if we’re sitting indoors all day. And in cramped, big cities like New York, where living space is at a premium, there is frequently neither storage space nor predilection for stocking up on weeks’ worth of food at a time.

2) Compressing the commercial day will mean more people shopping together in close quarters. The smart play until now among germaphobes has been hitting up the local Rite Aid in the wee small hours. Mayors, county executives, and governors are increasingly foreclosing that option.

3) Law enforcement has more urgent priorities than policing the free movement of citizens. At a moment when National Guard reservists are being called up to build emergency ICU capacity, do we really want available man/womanpower scaring peaceable residents straight?

4) Human beings do not have a limitless capacity for self-imprisonment. We are about to see a lot of resentment from the healthy Youngs about how they no longer have jobs or the ability to make student loan payments because of draconian governmental measures to combat a disease disproportionately affecting the Olds. But even setting that aside, in the absence of V-1 bombs flying overhead, people are eventually going to bust out of their containment. Setting up legal regimes in contravention of human nature is a recipe for all kinds of trouble.

How do these curfews and mandatory quarantines end? No really, how do they? What does success look like? When is the “emergency” over? We see very little acknowledgment that these questions are even relevant, let alone attempts to answer them amid the cascade of competitive shutdowns.

I, too, urgently hope that people mostly stay the hell away from each other over the coming weeks. But not at gunpoint, and not in such a way that creates new and perhaps even worse pathways for unhealthy behavior. Let’s be careful out there both personally and governmentally.

from Latest – Reason.com https://ift.tt/3b9AW2J
via IFTTT

Stop It With the Coronavirus Curfews Already

Now that sports have been effectively canceled, there is apparently a new competition afoot in this coronavirus-cursed country: Politicians vying to see who can impose the most freedom-infringing clampdown in the name of flattening the curve.

New Jersey Gov. Phil Murphy Monday evening “strongly suggested” a statewide curfew between 8 p.m. and 5 a.m., with exceptions made only for emergencies and “essential travel,” whatever that means. For now, this designation falls short of an official order, resting instead in the vaguely threatening legal zone of strong discouragement, though the governor has literally promised “more draconian steps” in the future.

The move came concurrently as a “shelter in place” order for the 7 million residents of six counties in the San Francisco Bay Area, who are now permitted to leave their own homes only “to provide or receive certain essential services or engage in certain essential activities and work for essential business or government services.” Violating the order is a misdeameanor that—according to the order!—”constitutes an imminent threat and creates an immediate menace to public health.” Don’t worry, though; San Francisco Police Chief William Scott said that cops will be taking a “compassionate, commonsense approach” to enforcement.

“We’re absolutely considering that,” New York City’s clownpants Mayor Bill de Blasio added this morning.

It is worth thinking this stuff through a bit more than your average politician. I sit squarely on the worst-case scenario side of the spectrum, and have been practicing the kinds of social distancing de Blasio is only belatedly preaching, but there are a least four main commonsense objections to curfews that arise even before you start considering the constitutionality and massive economic impact of it all.

1) Shutting most everything down creates real shortages, not just the no-toilet-paper-at-Whole-Foods kind. The more people and industries you order locked down, the more supply chains get broken, the more stores shutter, the fewer goods are available. We all still need stuff, even if we’re sitting indoors all day. And in cramped, big cities like New York, where living space is at a premium, there is frequently neither storage space nor predilection for stocking up on weeks’ worth of food at a time.

2) Compressing the commercial day will mean more people shopping together in close quarters. The smart play until now among germaphobes has been hitting up the local Rite Aid in the wee small hours. Mayors, county executives, and governors are increasingly foreclosing that option.

3) Law enforcement has more urgent priorities than policing the free movement of citizens. At a moment when National Guard reservists are being called up to build emergency ICU capacity, do we really want available man/womanpower scaring peaceable residents straight?

4) Human beings do not have a limitless capacity for self-imprisonment. We are about to see a lot of resentment from the healthy Youngs about how they no longer have jobs or the ability to make student loan payments because of draconian governmental measures to combat a disease disproportionately affecting the Olds. But even setting that aside, in the absence of V-1 bombs flying overhead, people are eventually going to bust out of their containment. Setting up legal regimes in contravention of human nature is a recipe for all kinds of trouble.

How do these curfews and mandatory quarantines end? No really, how do they? What does success look like? When is the “emergency” over? We see very little acknowledgment that these questions are even relevant, let alone attempts to answer them amid the cascade of competitive shutdowns.

I, too, urgently hope that people mostly stay the hell away from each other over the coming weeks. But not at gunpoint, and not in such a way that creates new and perhaps even worse pathways for unhealthy behavior. Let’s be careful out there both personally and governmentally.

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via IFTTT

Trump’s Tariffs Weakened America’s Hospitals. Then Coronavirus Hit.

It hasn’t been talked about at any of the White House’s almost-daily coronavirus press conferences, but the Trump administration acted twice this month to reduce tariffs on imported medical equipment.

It won’t be talked about, of course, because those quiet maneuvers amount to an admission of guilt. President Donald Trump’s trade policies made it more difficult and expensive for American hospitals to buy the equipment they needed to confront a pandemic like the one now facing the world.

“In the last two years, Trump’s policy has forced China to divert the sales of these products—including protective gear for doctors and nurses and high-tech equipment to monitor patients—from the United States to other markets,” says Chad Brown, a senior fellow at the Peterson Institute for International Economics (PIIE), “and now the U.S. medical establishment faces looming trouble importing these necessities from other countries, which may be hoarding them to meet their own health crises.”

Before the trade war, tariffs on medical equipment imported from China were low or non-existent. More than a quarter of all medical equipment imported to the U.S. came from China, according to PIIE’s data.

Trump’s tariffs certainly put a dent in those imports. The first round of tariffs on Chinese imported goods, imposed in July 2018, put a 25 percent import tax on hand sanitizer, patient monitors, thermometers, oxygen concentrators, and more. The subsequent rounds of tariffs, imposed in September 2019, added 15 percent to the cost of imported surgical gloves and other types of medical protective gear.

According to PIIE data, American imports of those Chinese-made medical products fell by 16 percent between 2017 (the last full year before Trump’s tariffs) and 2019.

The Trump administration had ample warning that tariffs on imported medical gear and equipment would leave America less prepared for a major public health crisis. At the August 2018 hearings that evaluated the necessity of Trump’s proposed China tariffs—hearings that, as I reported at the time, consisted of hundreds of American business owners pleading with the government to spare them from this supposed “protection”—multiple members of the American medical community warned about exactly what is now happening.

“Any disruption to this critical supply chain erodes the healthcare industry’s ability to deliver the quality and cost management outcomes that are key policy objectives of the country,” Matt Rowan, president of the Health Industry Distributors Association, told the Office of the U.S. Trade Representative at the time.

“These products are essential to protecting healthcare providers and their patients every single day,” he continued. “The healthcare products on the proposed list are used widely, throughout healthcare settings and are a critical component of our nation’s response to public health emergencies.”

At a hearing on additional proposed tariffs in June 2019, more warnings were issued. Lara Simmons, president of Medline Industries, told the tariff committee that it was not possible to quickly find alternative suppliers of many health care items imported from China. That meant hospitals and healthcare providers would have little choice but to pay the higher prices created by tariffs—and, therefore, would likely buy less.

“Starting production in the U.S. or any third country would be a time consuming and expensive process due to the FDA [Food and Drug Administration] regulatory procedure that is required for these products,” she said.

Trump’s so-called “phase one” trade deal with China resulted in the lifting of a few tariffs, but the tariffs on medical equipment and gear remained in place. That Trump has lifted those tariffs now is good, but not imposing them at all would have been far better.

“It reveals the foolishness of the administration’s shoot-first-and-ask-questions-later approach,” Scott Lincicome, a trade lawyer and scholar with the Cato Institute, tells Reason. The practical (and obvious) consequences of the tariff policy should have been addressed from the start, he says, like the fact that tariffs created an incentive for hospitals and other importers to rely on their existing inventories and put off making additional purchases in the hopes that the tariffs would be reduced before supplies ran out.

“There was clearly no thought given to how this would actually work in practice,” Lincicome says, “and now you’re seeing the consequences.”

Some on the neo-nationalist right are using the coronavirus outbreak and the stressed supply chains it has caused as evidence that a national industrial policy is necessary to ensure America has adequate supplies to counter a pandemic. But autarky would result in less efficient markets and more expensive products. It would leave America with the same results—higher prices and lower supply—that the tariffs did. That’s not a good solution.

We need more free trade, not less, to be better prepared for future pandemics.

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Trump’s Tariffs Weakened America’s Hospitals. Then Coronavirus Hit.

It hasn’t been talked about at any of the White House’s almost-daily coronavirus press conferences, but the Trump administration acted twice this month to reduce tariffs on imported medical equipment.

It won’t be talked about, of course, because those quiet maneuvers amount to an admission of guilt. President Donald Trump’s trade policies made it more difficult and expensive for American hospitals to buy the equipment they needed to confront a pandemic like the one now facing the world.

“In the last two years, Trump’s policy has forced China to divert the sales of these products—including protective gear for doctors and nurses and high-tech equipment to monitor patients—from the United States to other markets,” says Chad Brown, a senior fellow at the Peterson Institute for International Economics (PIIE), “and now the U.S. medical establishment faces looming trouble importing these necessities from other countries, which may be hoarding them to meet their own health crises.”

Before the trade war, tariffs on medical equipment imported from China were low or non-existent. More than a quarter of all medical equipment imported to the U.S. came from China, according to PIIE’s data.

Trump’s tariffs certainly put a dent in those imports. The first round of tariffs on Chinese imported goods, imposed in July 2018, put a 25 percent import tax on hand sanitizer, patient monitors, thermometers, oxygen concentrators, and more. The subsequent rounds of tariffs, imposed in September 2019, added 15 percent to the cost of imported surgical gloves and other types of medical protective gear.

According to PIIE data, American imports of those Chinese-made medical products fell by 16 percent between 2017 (the last full year before Trump’s tariffs) and 2019.

The Trump administration had ample warning that tariffs on imported medical gear and equipment would leave America less prepared for a major public health crisis. At the August 2018 hearings that evaluated the necessity of Trump’s proposed China tariffs—hearings that, as I reported at the time, consisted of hundreds of American business owners pleading with the government to spare them from this supposed “protection”—multiple members of the American medical community warned about exactly what is now happening.

“Any disruption to this critical supply chain erodes the healthcare industry’s ability to deliver the quality and cost management outcomes that are key policy objectives of the country,” Matt Rowan, president of the Health Industry Distributors Association, told the Office of the U.S. Trade Representative at the time.

“These products are essential to protecting healthcare providers and their patients every single day,” he continued. “The healthcare products on the proposed list are used widely, throughout healthcare settings and are a critical component of our nation’s response to public health emergencies.”

At a hearing on additional proposed tariffs in June 2019, more warnings were issued. Lara Simmons, president of Medline Industries, told the tariff committee that it was not possible to quickly find alternative suppliers of many health care items imported from China. That meant hospitals and healthcare providers would have little choice but to pay the higher prices created by tariffs—and, therefore, would likely buy less.

“Starting production in the U.S. or any third country would be a time consuming and expensive process due to the FDA [Food and Drug Administration] regulatory procedure that is required for these products,” she said.

Trump’s so-called “phase one” trade deal with China resulted in the lifting of a few tariffs, but the tariffs on medical equipment and gear remained in place. That Trump has lifted those tariffs now is good, but not imposing them at all would have been far better.

“It reveals the foolishness of the administration’s shoot-first-and-ask-questions-later approach,” Scott Lincicome, a trade lawyer and scholar with the Cato Institute, tells Reason. The practical (and obvious) consequences of the tariff policy should have been addressed from the start, he says, like the fact that tariffs created an incentive for hospitals and other importers to rely on their existing inventories and put off making additional purchases in the hopes that the tariffs would be reduced before supplies ran out.

“There was clearly no thought given to how this would actually work in practice,” Lincicome says, “and now you’re seeing the consequences.”

Some on the neo-nationalist right are using the coronavirus outbreak and the stressed supply chains it has caused as evidence that a national industrial policy is necessary to ensure America has adequate supplies to counter a pandemic. But autarky would result in less efficient markets and more expensive products. It would leave America with the same results—higher prices and lower supply—that the tariffs did. That’s not a good solution.

We need more free trade, not less, to be better prepared for future pandemics.

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Russia’s State Duma Votes To Reset Putin’s Current Term, Allowing His Re-election in 2024

Vladimir Putin officially solidified his grasp on power last week when the State Duma, Russia’s lower legislative chamber, voted unanimously to pass a constitutional amendment modifying the structure of presidential term limits. Putin will be allowed to once again run for office in 2024, when his current term is set to expire, and stay in power for two consecutive six-year terms.

The amendment was introduced by Valentina Tereshkova, former astronaut and current Duma member of the United Russia Party. She implored the Duma to reset Putin’s previous presidential terms, allowing him to seek re-election without the restrictions of constitutional law.

Additionally, the amendment would give the president stronger veto power and the authority to appoint different members of the cabinet at will, without altering the government’s overall structure. The president could also gain the ability to become a lifelong senator if he chooses not to run again for office.

Russian policy experts have speculated how exactly Putin will retain his authority in the coming years. Some thought that Putin’s new placeholder might be former tax chief Mikhail Mishustin, who was appointed as the new prime minister in January after Dmitry Medvedev resigned. Shortly after news of the resignation broke out, Putin had proposed a constitutional amendment that would shift some power from the executive branch to the Duma.

Yet it looks like Putin decided to forego democratic formalities altogether, seizing power in the most direct way possible. The Russian constitution is written not to give power to the people but to give power to the people who already have it, prominent libertarian activist Mikhail Svetov wrote on Twitter.

The Kremlin has reached the finish line on formalizing Russia’s corporate state, Yabloko Party Leader Grigori Yavlinsky wrote on Facebook. By nullifying Putin’s current presidential term and altering how constitutional amendments are passed, Putin can overcome any remaining legal obstacles to permanent rule.

The proposed amendment contradicts the basic tenets of the Russian constitution, said Kirill Rogov, a senior research fellow at the Gaidar Institute for Economic Policy, in an interview with Echo of Moscow Radio. The Duma is illegally trying to implement it, he said, making Putin’s move an effective coup d’etat.

A coalition consisting of Russian opposition leaders, human rights activists, and constitutional law experts submitted an appeal to the European Union asking for advice on how to move forward. The appeal’s authors urged Russian citizens to publicly express their dissent towards the amendment, which would “strengthen the undemocratic vertical of power…and narrow down the autonomy of local self-government.”

If Putin stays president until 2036, he will have been in power for 36 years, longer than even Stalin’s rule. Russia’s constitutional court continues to spurt out legal jargon designed to confuse the public, but the underlying message remains clear: Putin’s autocracy has no further need to continue even the illusion of democracy.

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