Month: September 2020

Although the results of a nationwide antibody study by the Centers for Disease Control and Prevention (CDC) have not been published yet, the initial findings reportedly indicate that less than 10 percent of the U.S. population has been infected by the COVID-19 virus. “The preliminary results on the first round show that a majority of our nation—more than 90 percent of the population—remains susceptible,” CDC Director Robert Redfield said during congressional testimony last week.

That finding is roughly consistent with the CDC’s most recent “best estimate,” based on studies of the epidemic’s impact in other countries, that the overall COVID-19 infection fatality rate (IFR)—the share of Americans infected by the virus who will die as a result—is about 0.65 percent. According to Worldometer’s tally, the current death toll in the United States is about 210,000. The CDC’s IFR estimate therefore implies that around 32 million Americans, a bit less than 10 percent of the U.S. population, have been infected.

Assuming that the CDC’s nationwide IFR estimate proves to be about right, there are still a couple of important complications. Regional antibody studies by the CDC, using blood drawn for routine tests unrelated to COVID-19, suggest that the IFR varies widely from one part of the country to another—from 0.1 percent in Utah to 1.4 percent in Connecticut as of early May, for example. Recent CDC estimates indicate that the IFR also varies dramatically by age—from 0.003 percent among people 19 or younger to 5.4 percent among people in their 70s.

According to those “best estimates,” which were published this month as an update to the CDC’s COVID-19 Planning Scenarios, the IFR is 0.02 percent for 20-to-49-year-olds and 0.5 percent for 50-to-69-year-olds. The CDC did not include an IFR estimate for people 80 or older. But judging from crude case fatality rates (deaths divided by confirmed cases), the IFR for people in that age group would be substantially higher than 5.4 percent.

The CDC’s latest death counts indicate that the crude case fatality rate is around 28 percent for patients 85 or older and 18 percent for 75-to-84-year-olds. That rate falls to about 8 percent for 65-to-74-year-olds, 2 percent for 50-to-64-year-olds, 0.6 percent for patients in their 40s, 0.2 percent for patients in their 30s, 0.06 percent for patients in their late teens and early 20s, 0.02 percent for 5-to-17-year-olds, and 0.04 percent for children 4 and younger.

The CDC’s overall IFR estimate implies that COVID-19, while not nearly as lethal as many people initially feared, is about six times as deadly as the seasonal flu. But as with the flu, the risk is highest for the elderly, and the difference in the case of COVID-19 is huge. The estimated IFR for people in their 70s is 11 times the rate for 50-to-69-year-olds, 270 times the rate for 20-to-49-year-olds, and 1,800 times the rate for people younger than 20. In the latter two groups, the estimated IFR is lower than the overall IFR for the seasonal flu.

If the CDC’s estimates are in the right ballpark, they still do not settle the ongoing debate about how best to protect people in high-risk groups: through broad restrictions that aim to reduce virus transmission or more targeted measures that try to insulate older, less healthy individuals from the epidemic until effective vaccines can be deployed. But the stark differences reflected in age-specific fatality rates clarify what the main goal of government policy and private precautions should be.

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Matthew Mayhew is sorry. Very, very sorry.

“I am sorry for the hurt, sadness, frustration, fatigue, exhaustion and pain this article has caused anyone, but specifically Black students in the higher education community and beyond,” writes the Ohio State University professor. “I am struggling to find the words to communicate the deep ache for the damage I have done.”

Yet finds them he does—in a lengthy article for Inside Higher Ed so hyperbolic and servile in tone that it verges on parody. Indeed, I emailed the professor to confirm that his apology was sincere; he did not respond to a request for comment. Perhaps he is busy with the “long process of antiracist learning” that he has pledged to undertake.

“I am designing a plan for change, for turning the ‘I am sorry’ to ‘I will change’—for moving Black Lives Matter from a motto to a pathway from ignorance and toward authentic advocacy,” Mayhew writes. “To do this, a colleague of mine asked me to center the question: What can I do to unlearn patterns that hurt and harm Black communities and other communities of color? My center is as a learner, so movement for me will involve unlearning and relearning by listening, reading, dialoguing, reflecting and writing as a means for increasing my awareness and knowledge about systemic racism and the experiences of people of color and people who hold marginalized identities different from my own.”

At this point, you’re probably curious about what crime Mayhew committed. You’re thinking, at the very least, this guy wore a heck of a lot of blackface 30 years ago.

Mayhew’s transgression is this: Last week, he penned an article for Inside Higher Ed titled “Why America Needs College Football.” It made the apparently controversial, venomously hateful, and insidiously racist claim that Football Is Good:

As college campuses attempt to find a new normal suitable for the COVID-19 realities, college athletics, especially college football, have garnered much attention. Debates continue about whether players should be required to play this fall season. Although many people have been outspoken about the financial and health ramifications of allowing—or requiring—players to gear up, few, if any, have addressed the essential role that college football may play toward healing a democracy made more fragile by disease, racial unrest and a contested presidential election cycle.

Essentializing college football might help get us through these uncharacteristically difficult times of great isolation, division and uncertainty. Indeed, college football holds a special bipartisan place in the American heart.

Mayhew’s piece—co-authored with a graduate student named Musbah Shaheen, who has YET TO ATONE as far as I can tell—is too bland and mawkish for my tastes. It’s filled with platitudes about how we may root for different teams, but deep down, blah blah, you get the idea. There’s little in the way of original analysis or research here. Criticizing the piece is perfectly fine.

It’s also true that the college football industry does not always put players first; that black athletes face unique challenges, including in terms of their health, and especially during the COVID-19 pandemic; and that the college athletics industry too often renders education a secondary mission of universities. In light of all that, I would accept Mayhew’s piece as a tad naive, or out of its depths.

But his apology goes well beyond that:

I learned that I could have titled the piece “Why America Needs Black Athletes.” I learned that Black men putting their bodies on the line for my enjoyment is inspired and maintained by my uninformed and disconnected whiteness and, as written in my previous article, positions student athletes as white property. I have learned that I placed the onus of responsibility for democratic healing on Black communities whose very lives are in danger every single day and that this notion of “democratic healing” is especially problematic since the Black community can’t benefit from ideals they can’t access. I have learned that words like “distraction” and “cheer” erase the present painful moments within the nation and especially the Black community.

More:

I am just beginning to understand how I have harmed communities of color with my words. I am learning that my words—my uninformed, careless words—often express an ideology wrought in whiteness and privilege. I am learning that my commitment to diversity has been performative, ignoring the pain the Black community and other communities of color have endured in this country. I am learning that I am not as knowledgeable as I thought I was, not as antiracist that thought I was, not as careful as I thought I was. For all of these, I sincerely apologize.

Even more:

I know it’s not anyone’s job to forgive me, but I ask for it—another burden of a white person haunted by his ignorance. To consider the possible hurt I have played a role in, the scores of others whose pain I didn’t fully see, aches inside me—a feeling different and deeper than the tears and emotions I’ve experienced being caught in an ignorant racist moment.

And those are just the highlights! Mayhew even thanks three academics who had evidently called him out initially for helping him come to terms with his racism.

“I know they are taking a risk by partnering with me on this pathway,” he writes, sounding very much like Winston Smith after a visit to Room 101. “I know that they are carrying a burden by even taking any time with me. I want to thank them.”

Is this real? Are James Lindsay, Helen Pluckrose, and Peter Boghossian up to their old tricks again? Can a person really be this sorry for… um… liking football?

Mayhew is a real person, according to OSU’s website. I emailed him to confirm that the apology is sincere. “Were you held hostage while you were writing it?” I asked. “Blink twice if this is actually you.” Alas, he did not respond.

On Twitter, New York magazine’s Jonathan Chait notes that such a dramatic public apology is obviously weird and bad. “The obsequious tone of the groveling should be a red flag that there’s something seriously awry with this mode of discussion,” says Chait.

Indeed, I find it odd that Inside Higher Ed‘s editors published it. Maybe they, too, are sorry. So very sorry.

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On Friday, Democratic Representatives Ro Khanna (Calif.), Don Beyer (Va.) and Joe Kennedy III (Mass.) introduced a bill that would impose 18-year term limits on Supreme Court justices:

Democrats Ro Khanna (Calif.), Don Beyer (Va.) and Joe Kennedy III (Mass.) unveiled the bill, the Supreme Court Term Limits and Regular Appointments Act, on Friday. If passed, the act would institute regular appointments to the Supreme Court every two years, with new justices serving for nonrenewable 18-year terms. After 18 years, appointees would become “senior justices” able to temporarily rejoin the court in the event of an unexpected vacancy. Although the current eight justices would be exempted, the two-year appointment cycle would take effect immediately, without waiting for them to retire.

For reasons outlined here, I very much support the idea of term limits for SCOTUS justices (see also Steve Calabresi’s recent NY Times column defending them). But enacting them by statute is both unconstitutional and likely to set a dangerous precedent. Legal scholar Michael Ramsey has an excellent discussion of the constitutional problems at the Originalism Blog:

The consensus of legal scholars seems to be that this is unconstitutional if done by statute.  I’d like to be a contrarian and say otherwise, but I can’t.  Indeed, I think this is another example…. where the Constitution’s text is clear, if read carefully and without a view to evasion.

Article III, Section 1 provides:

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 Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour…

I’ll assume here that the “good Behavior” standard means the judges hold their offices for life unless impeached and removed under Article II, Section 4…. So, as a starting point, a simple term-of-years for Supreme Court Justices is a constitutional non-starter.

The Khanna et al. proposal apparently tries to get around that restriction by redefining the “office” of Supreme Court Justice as hearing cases for 18 years (I’ll call it phase 1) and then serving as a backup “senior Justice” in case of temporary vacancies (phase 2).  Rotating from phase 1 to phase 2 wouldn’t be a removal from office, it is argued, because the office, by definition, includes both phases of service.

This doesn’t work for me.  Article III, Section 1 creates “Offices” of “Judges … of the supreme and inferior Courts.” Necessarily, holding the “Office” of judge of the supreme Court means acting in a judicial capacity as a member of the supreme Court, not simply having the title and filling in occasionally.  This constitutionally defined office can’t be redefined by statute to mean the office of acting in a judicial capacity as a member of the supreme Court for a while and then doing something else for the balance of one’s tenure.  (Otherwise, Congress could define the “Office” of Supreme Court Justice as serving as a Justice for 5 years and then serving as dogcatcher in East Outback, Alaska, for the rest of the time).  And Article III, Section 1 goes on to say that the judges shall hold “their Offices”—that is, their offices as members of the Supreme Court—during good behaviour.

Ramsey’s critique implicitly highlights a possible negative consequence of assuming Congress has the power to impose term limits by statute: If Congress can impose an 18 year term limit, they can also impose much shorter ones, such as five year limit or a two year limit. That would make it easy for any party that controls both Congress and the White House to get rid of justices whose rulings they dislike, and replace them with more supportive jurists. And if Congress can impose term limits on all justices, they can also selectively impose them on specific justices it especially wants to get rid of, while leaving the others alone. For example, if a Democratic Congress wished to get rid of Gorsuch, Kavanaugh, or Amy Coney Barrett (assuming she gets confirmed), they could pass a law imposing very short terms on justices appointed in 2017, 2018, and 2020, respectively. Republicans could use similar tactics to target liberal justices who might otherwise become thorns in their side.

One can argue that politicians would be prevented from doing such things by political norms. But, as we have all seen in recent years, norms have a way of fraying and even collapsing in times of intense polarization. If you’re a Democrat, would you really trust Republicans to follow norms on this issue, when it becomes inconvenient for them to do so? If you’re a Republican, would you trust the Democrats to do the same?

I’m not suggesting that the Khanna proposal is itself motivated by such partisan calculations. To the contrary, I think he and his co-sponsors are acting in good faith. One indication is that they exempt current justices from the term limits, thus making it impossible to use the bill to get rid of current conservative justices liberals dislike. In theory, Amy Coney Barrett might be subject to the term limits if the Khanna bill passes before she gets confirmed. But in practice, such a scenario is highly unlikely.

But once it is generally accepted that Congress has the power to impose term limits on Supreme Court justices by creative redefinition of the office, that power can be also used in less scrupulous ways. And such tactics are likely to be attractive to politicians seeking partisan advantage.

And most politicians not exactly known for their principled adherence to inconvenient norms. The recent history of Supreme Court nominations and other judicial nomination battles shows that most aren’t even willing to stick to normsthey themselves embraced just a few years ago. Democrats and Republicans have repeatedly jettisoned their own professed principles on such matters as whether the Senate should consider nominations for vacancies that arise during an election year, whether it is appropriate to filibuster judicial nominees, whether senators can legitimately oppose nominees based on ideological considerations, and so on. The GOP’s egregious recent flip flop relative to their 2016 positions is just the latest in a long string of “hardball” tactics deployed in the ongoing political battle over judicial nominations.

By all means, adopt term limits for Supreme Court justices. But let’s do it by constitutional amendment. That is both the legally correct path, and the one less likely to create a dangerous slippery slope.

I criticized statutory term limits and related “rotation” proposals for Supreme Court justices in greater detail here and here.

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The New York Times on Sunday caused a stir with their report on President Donald Trump’s tax liability, or lack thereof. The analysis notes that Trump, whose net worth is estimated at $2.5 billion, “paid no income taxes at all in 10 of the previous 15 years,” and paid only $750 in both 2016 and 2017.

The story will likely come up during tonight’s presidential debate, and the consensus among the media and liberals broadly is that this is yet more evidence of Trump’s sketchy behavior. But focusing on Trump’s approach to reducing the amount he owes in taxes misses the larger point, which is that Trump’s returns are merely a symptom of a complex tax system that incentivizes filers to sniff out every legal strategy for reducing their tax burdens.  

For context, let’s begin with Trump’s business model, which goes something like this: Launch several businesses, many of which hemorrhage millions of dollars each year, and use the publicity from those businesses to make money on personal branding. The latter is highly profitable, earning Trump $427.4 million between 2004-2018. The losses from the former—his hotels and resorts for instance—are then used to largely offset his tax liability.

The Times’ report does erode the savvy businessman brand Trump has sought to cultivate for himself, both commercially and as a candidate for office. The president is not necessarily the astute entrepreneur he claims to be, though he may be uniquely skilled at making money by wasting money. His most high-profile business successes—his golf courses—have reportedly lost $315 million since 2000. The Trump International Hotel in Washington, D.C., just opened in 2016, has already lost $55 million, both numbers according to the Times.

Losing money for a living is certainly an unorthodox business model, but that doesn’t make it illegal. 

Trump’s deductions don’t stop there, however. There’s also the $9.7 million tax credit Trump claimed to renovate the Old Post Office building in Washington, D.C., which would later become the aforementioned Trump hotel. That fell under the historic preservation tax clause, an entirely legal tax incentive meant to encourage the redevelopment of old structures. 

It could be legally problematic, or just another revealing symptom of U.S. tax law, that Trump has claimed millions of dollars in unspecified consulting fees on various business projects, which typically amounted to 20 percent of his income, according to the Times. Ivanka Trump was allegedly the recipient of hundreds of thousands of dollars in such consulting fees. The president also declared $1.4 billion in business losses in 2008 and 2009. An IRS audit is ongoing.

“Any good tax lawyer or accountant will give options to their client. Some of them will be clearly legal, clearly allowable,” says Joseph Bishop-Henchman, Vice President of Policy & Litigation at the National Taxpayers Union Foundation. “And then there’s gray area stuff,” he continues, noting that the “payments to the [Trump] kids,” as well as the $1.4 billion backward-looking net operating loss, may be a stretch.

It is also true that the wealthy almost always pay a hefty tax bill. Someone of Trump’s worth, that is, a person in the top 1 percent of all earners, would usually shell out more than a third of his income in taxes.

But as Bishop-Henchman reminds us, much of the behavior outlined by the Times report is not only legal but was enshrined by our lawmakers to encourage certain behaviors. He mentions the tax credits Trump received for the Old Post Office building renovation: “Congress wrote that law, and they made it available,” he says. “And it’s been on the books for 40 years, and it’s been used to rehabilitate tens of thousands of historic properties. When you write stuff on the books, billionaires are going to use it, and they’re going to use it to bring their tax liability down.”

Our tax code, which Bishop-Henchman says was written in the style of a “phone book,” is replete with overly complex rules and regulations meant to influence the public’s economic behavior. Former Vice President Joe Biden is no stranger to this. “I have nothing against Amazon,” he wrote in June of 2019, “but no company pulling in billions of dollars of profits should pay a lower tax rate than firefighters and teachers. We need to reward work, not just wealth.” The tech behemoth paid no federal taxes in 2018 after making use of legal tax incentives established by Congress, of which Biden was a member for 36 years. For example, Amazon invested $22.6 billion in research and development in 2017, something the legislature hopes will spur job creation and economic growth.

“It’s this conflict between we want to use the tax code to incentivize all these things,” says Bishop-Henchman. “And then we get upset when people use them very well.”

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