Month: July 2020

Flattening the curve on COVID-19 has meant flattening the curve on tax season, too, pushing everything down the line a bit so that the final day to hand over the government’s cut of our hard-earned income comes up on July 15. That’s given us an unparalleled opportunity in a time of crisis to assess what we’re getting for our money. Amidst the smoking ruins of 2020, it’s understandable if you regret every penny you’ve ever surrendered to a tax collector.

The year 2020 should stand forever as evidence that, rather than a solution, government is often a cup of gasoline just waiting to be thrown on a fire. The spark this time was a tiny, but deadly, virus.

From the beginning, President Trump minimized the danger posed by COVID-19 even as the Centers for Disease Control and Prevention (CDC) and the Food and Drug Administration (FDA)—agencies of the federal government over which he presides—fumbled developing a test for the disease and kneecapped academic, commercial, and hospital efforts that could do better. The FDA only belatedly eased rules standing in the way of expanding the supply of ventilators, masks, hand sanitizer, and other supplies.

When companies found it challenging to navigate the ever-shifting regulatory landscape, the president invoked the Defense Production Act to force them to produce what the government wanted, when it was wanted.

To add to the fun, the CDC kept Americans entertained with contradictory advice as to whether or not wearing masks could be helpful.

Taking the chaos in D.C. as a challenge to their own abilities at confusing and dismaying the public, state governors feuded with the Trump administration as well as with local officials who were busy baffling us with their own efforts.

Perhaps the CDC’s test-fumbling was seen as insufficiently deadly; governors of some states, including New Jersey and New York, required nursing homes to accept COVID-19 patients against all advice. Such facilities have accounted for about 40 percent of all U.S. deaths during the pandemic.

In the name of delaying the spread of COVID-19, states and localities issued draconian and arbitrary shutdown rules that closed businesses, choked-off travel, interrupted personal relationships, and threatened many people with economic ruin and despair. To make it worse, some of the governors issuing them promptly ignored or gamed their own rules.

That this has been to questionable benefit should go without saying—we’re seeing a new round of mandated closures now, after Americans’ patience and limited ability to weather orders that shut businesses and kill jobs is greatly eroded. In fact, by the end of May, Americans were unemployed, aggravated, at wit’s end and ready to explode.

Despite spending years fueling conflict between police and the public, and then confining the population to stew at home over health concerns and the prospect of unpaid bills and poverty, officials seemed astonished that the country erupted in anger at the latest law-enforcement outrage.

“Police abuse remains a problem that needs to be addressed by policymakers and police professionals,” the federal government’s National Institute of Justice warned in 2000.

Twenty years later, with little done to address the issue and lots of time and frustration on their hands, Americans marched, protested, and some also rioted. The killing of George Floyd, mistreatment of African-Americans, and anger at police brutality in general, sent people into the streets to demand change—in forms good, bad, indifferent, and undefined.

How that change will shake out is anybody’s guess; as with the pandemic, Republicans and Democrats have turned dealing with police reform and racism into new excuses for political point-scoring. Will officials back enforcers to the hilt, go with tearing down random statues misunderstood by the mob, or make the difficult effort to rein-in their own out-of-control enforcers? Hang on while political professionals wet their fingers and hold them in the air.

What is clear is that this turmoil has a big price tag, which will probably generate more turmoil. As of June 26, the Federal Reserve Bank of Atlanta projects a 39.5 percent decline in GDP for the second quarter.

For the year overall, the Federal Reserve Bank’s projection of a 6.5 percent decline in GDP is actually optimistic compared to the roughly 8 percent drops predicted by the International Monetary Fund (IMF) and the Organization for Economic Cooperation and Development (OECD).

“The COVID-19 pandemic pushed economies into a Great Lockdown, which helped contain the virus and save lives, but also triggered the worst recession since the Great Depression,” writes Gita Gopinath, director of the IMF’s research department.

The U.S. government tried to offset the economic fallout of the pandemic and of the lockdown orders, but it did so very badly. Of the money paid out to alleviate the pain, $1.4 billion went to dead people who are already well beyond the reach of stimulus efforts, according to the U.S. Government Accountability Office.

The checks that went to living recipients didn’t do much more good.

“Stimulus checks increase spending particularly among low-income households, but very little of the additional spending flows to the businesses most affected by the COVID shock; and loans to small businesses have little impact on employment rates,” concludes a paper from a Harvard University economic research team published earlier this month.

For all of this, we’ll be paying over the course of many years to come.

The Congressional Budget Office “projects that over the 11-year horizon, cumulative real output (in 2019 dollars) will be $7.9 trillion, or 3.0 percent of cumulative real GDP, less than what the agency projected in January.” That is, America over the next decade is expected to be a poorer place than it was on track to be. That’s not entirely because of matters under human control—COVID-19 is a creation of nature—but human government officials played an enormous role in creating the conditions in which we find ourselves.

So we’re getting quite a lot for our money. Whether all of that incompetence, in-fighting, obstructionism, authoritarianism, and waste is worth what we’re paying is a matter for each of us to decide. We’ll have time to contemplate the return on our investment as we await the arrival of this year’s tax day, and to consider if we’re happy with what we’re getting for our money.

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There is much to admire in Justice Kagan’s Seila Law dissent. She wrote a robust historical analysis about the removal power. And, to be frank, Chief Justice Roberts didn’t bother responding to most of her claims. But there is at least one weak spot in Kagan’s analysis: she misread Hamilton in Federalist No. 77. To Kagan, Hamilton thought the Constitution required Senatorial consent for a Presidential removal. Kagan’s reading is all-too-common. Indeed, in Myers v. United States, both Chief Justice Taft and Justice Brandeis accepted this understanding of Federalist No. 77. 

This reading, however, is not the best reading of Federalist No. 77. In that paper, Hamilton was discussing the appointment power, not the removal power. He stated what should be an uncontroversial point: when a new President wants to “displace”–that is replace or substitute–a holdover appointed by his predecessor, the Senate must provide “advice and consent” for the new position. Hamilton was not discussing whether the Senate must consent before the President removes an officer of the United States. He was talking about what happens after the removal: the Senate must provide advice-and-consent to fill the vacancy.

In Federalist No. 77, Hamilton begins by praising the “stability” of the new government when one administration concludes and a new administration begins:

IT HAS been mentioned as one of the advantages to be expected from the co-operation of the Senate, in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint. A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected, if he were the sole disposer of offices.

Let’s consider an example. When President Washington’s term concludes, and President Adams’s term begins, President Adams would need the Senate’s consent to “displace as well as to appoint.” That is, Adams would need the Senate’s consent to “appoint” people to fill vacant positions. That conclusion is not controversial. And Adams would need the Senate’s consent to “displace” some holdovers from the Washington administration. What does it mean to “displace”?

That displacement process can take one of two forms. First, Adams could ask the holdover to resign, which he probably would. If so, the position is now vacant, and the President could seek advice-and-consent to fill it. Second, if the holdovers refuses to resign, Adams could remove the holdover. At that point, now the position is vacant, and the President could seek advice-and-consent to fill it. In short, the Senate’s role in “displace[ment]” does not concern asking an Officer to resign, or removing an Officer. Rather, the Senate’s role arises on the back-half of this process: replacing, or substituting a new person for that position.

In Federalist No. 77, Hamilton was not discussing the President’s removal power; he was trying to sell the Constitution to the people of New York, who were worried about a new executive who will create chaos.  Hamilton makes this point expressly in the next two sentences of Federalist No. 77:

Where a man in any station had given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him, by the apprehension that a discountenance of the Senate might frustrate the attempt, and bring some degree of discredit upon himself. Those who can best estimate the value of a steady administration, will be most disposed to prize a provision which connects the official existence of public men with the approbation or disapprobation of that body which, from the greater permanency of its own composition, will in all probability be less subject to inconstancy than any other member of the government.

Hamilton was discussing a simple proposition: a new President could not unilaterally appoint new members to the executive branch; he would need the Senate’s consent. Thus, the Senate wold ensure there was some be “stability” from administration to administration, rather than a “violent or so general a revolution.” Senate advice-and-consent on the appointment power maintains stability. In other words, the President could not simply fire everyone as a means to appoint new people. If he chooses to fire people, without an eye to the Senate, he would be stuck with vacancies in critical positions, thereby undermining his own administration. Hamilton was prescient: the parallels to present circumstances should be apparent.

At one point in her opinion, Justice Kagan seems to understand the phrase “displace” to mean replace, or substitute. Indeed, she uses the phrase “substituting.”

Delegates to the Constitutional Convention never discussed whether or to what extent the President would have power to remove executive officials. As a result, the Framers advocating ratification had no single view of the matter. In Federalist No. 77, Hamilton presumed that under the new Constitution “[t]he consent of [the Senate] would be necessary to displace as well as to appoint” officers of the United States. Id., at 515. He thought that scheme would promote”steady administration”: “Where a man in any station had given satisfactory evidence of his fitness for it, a new president would be restrained” from substituting “a person more agreeable to him.” Ibid.

Again, Hamilton wrote, “Where a man in any station had given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him…” Kagan changed “from attempting a change in favor of” to “from substituting.” Here Kagan, perhaps inadvertently, nailed it. But she still drew the same conclusion Taft and Brandeis drew: that “displace” was synonymous with “remove.” The better conclusion is that “displace” means “substitute,” which is a multi-step process.

This reading also accounts for Hamilton’s general reading of a robust, “vigorous” executive. In Myers, Chief Justice Taft wrote that Hamilton “changed his view of this matter” with respect to Washington’s proclamation of neutrality. Hamilton didn’t change his mind, or state a “heterodox” position in Federalist No. 77. He simply used the word “displace” in a different fashion.

Seth Barrett Tillman wrote about this issue a decade ago in a paper, fittingly titled, “The Puzzle of Hamilton’s Federalist No. 77.” Once again, Seth shined a light on constitutional puzzles that few others saw. I am always grateful for his careful and prescient scholarship.

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After A&E canceled the police ride-along reality show Live PD in response to growing criticism and activism about how police officers treat black people, host Dan Abrams insisted that part of the purpose of the show is to provide additional transparency into how officers operate in the field. Abrams said that he thought the show actually furthered the cause of police accountability.

But a new investigation by The Marshall Project, in partnership with The Daily Beast, raises questions about the influence of the police departments with whom the show partnered.

The Marshall Project sought out records and emails between the 47 law enforcement agencies that worked with Live PD and the show’s production company. From the 20 agencies who responded to their records requests, they found documentation that police officers reviewed footage before it aired and that, in 13 cases, police asked Live PD to not broadcast specific encounters.

Not all of Live PD was aired live. The show frequently followed police and recorded footage to be aired for future episodes. And even for the footage aired “live,” there was actually a 10- to 25-minute delay so that the footage could be reviewed. The show said it only edited footage to remove private information or censor footage that could jeopardize a case or cause a security risk.

But The Marshall Project found that law enforcement agencies asked that footage be cut for other reasons. In one such case, police in Warwick, Rhode Island, confronted a man on a skateboard with a shopping cart who was suspected of shoplifting. As a police car chased the man on a skateboard, it appeared (though it’s not fully clear) that the officer driving the car opened the door to knock the skater down while the vehicle was moving.

This is a pretty dangerous tactic for catching a shoplifter and could have hurt the man. A captain with the police department wrote to Live PD and told them that the method used to catch the shoplifter was “way outside of [their] policy and [they] would be opening up some scrutiny issues with the city and our insurance company if they were to see this.” He said that the incident was “too ‘wild west'” for how they typically behave in the department. Following that email, the incident never aired on Live PD.

The investigation also found footage of a sheriff’s deputy in Spokane, Washington, forcefully removing a woman from her own home after she apparently called them over a domestic violence incident. The woman told officers they had to get a search warrant in order to enter her home and then tried to close the door. Instead of leaving, or waiting peacefully outside the home, the officers dragged the woman out of her house while waiting for a judge to sign a warrant.

Once again, representatives from the sheriff’s department asked Live PD not to air the encounter due to “procedural issues” with how the deputies behaved. The show’s producers tried to edit the footage, but the department was still not satisfied. The encounter never aired.

Big Fish Entertainment, which produced Live PD, told The Marshall Project that the incident didn’t air because they were concerned about the woman and a child in the home being identified, not because of the sheriff’s department request. In fact, in each incident they were asked about, the production company had a different reason for censoring or cutting footage, and told The Marshall Project that it was not due to police concerns.

The Marshall Project obtained the footage of these encounters and have embedded the videos in its story, so you can review for yourself whether this behavior looks like police misconduct.

These incidents where police departments attempted to influence what Live PD put on the show is precisely why I cast doubt on claims that this type of programming actually shines a light on how police treat people. Real transparency means letting the public witness police mistakes.

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Wesley Yang is the author of the widely praised essay collection The Souls of Yellow Folk and proprietor of one of the liveliest Twitter feeds around. In a wide-ranging conversation with Nick Gillespie, he discusses the cultural impacts of the coronavirus lockdown and protests in the wake of the police killing of George Floyd; racism against black people, Latinos, Asians, and white ethnic people in American history; and how a totalizing and misguided attack on “white supremacism” came to replace a focus on ending specific racist policies and attitudes in recent years. “Wokeness” and “anti-racism” are forming a new elite consensus, Yang says, that may well undermine traditional American beliefs in a prosperous, innovative, and better future.

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