Month: December 2020

Education sector “support staff members,” corporate tax lawyers, and magazine fashion editors will all jump to the front of the coronavirus vaccination line ahead of the general population, under recommendations issued in late December by the federal government’s Centers for Disease Control and Prevention.

Self-interest dictates I should probably wait until after I get my immunity-producing doses before raising any questions about the prioritization. The government’s allocation strategy is such an inviting target, though, that it’s hard to resist taking, er, a shot.

How did we get here? On December 20, a government committee of highly educated, mostly academic experts known as the Advisory Committee on Immunization Practices voted about who should get the vaccine first. The committee has 15 voting members. Twelve of them are medical doctors. One is a lawyer. Nine—a majority—are affiliated with universities, including Stanford, Vanderbilt, Baylor, and the University of California, Los Angeles.

Naturally, the committee of doctors decided that the first vaccines should go to healthcare workers. That might seem like common sense—emergency room or intensive care doctors treating Covid-19 patients deserve to be protected against the risk of catching the disease in the workplace. Healthcare workers, though, is a big, catchall category. It includes everyone from Beverly Hills plastic surgeons conducting elective cosmetic surgery to “administrative staff,” which might be the billing clerk in the plastic surgery practice, or some hospital accounts-receivable bookkeeper or fundraiser with no patient contact.

“Healthcare personnel” are in the CDC’s phase 1a. Educational sector support staff are next in phase 1b. That could include people who are currently working from home and who ordinarily have little or no direct contact with students—say, the employees who answer telephone questions about retired professors’ pension benefits.

The next phase, 1c, encompasses the “media” and “law” categories. Like healthcare personnel, these groups are so broad that they include essential frontline workers but also some others whose prioritization is difficult to justify.

Journalists covering the pandemic by doing on-the-scene reporting from nursing homes or hospital intensive care units probably do have a strong case to be vaccinated relatively early. So do criminal defense lawyers meeting clients in prisons or jails, or making frequent in-person courtroom appearances.

The “media” and “law” categories, though, also include the copyeditors at Vogue and the big-firm lawyers who rarely show up in court but spend their time instead writing memos and helping companies minimize their taxes. Their Covid-19 risk seems pretty small, or at least small enough that it’s hard to see the rationale for those workers leapfrogging ahead of the general population.

A cynic might suspect the vaccine committee put lawyers and journalists early in the queue as a way to avoid getting sued or attracting negative press coverage.

It turns out that there is a mechanism in capitalism for allocating scarce goods. It works pretty well—better than allowing a government-appointed committee to decide who gets what when. It is called “price.”

When sellers are free to adjust prices upward to meet demand, scare goods wind up in the hands of those who value them most. If a coronavirus vaccine dose cost $1,000 or $2,000 instead of “free” or “$20,” a hospital might decide that it is worth vaccinating the intensive care nurses immediately. At that price, the same hospital might decide to wait for a while before vaccinating the accounts-receivable bookkeeper.

Some worry that under a free market approach like this, the Beverly Hills plastic surgery billing clerks and corporate tax lawyers will get vaccinated before the emergency room doctors in inner-city hospitals or public defenders visiting clients in jail. That’s a reasonable concern, but it’s better addressed by targeted subsidies than by a total suspension of the price mechanism in favor of broad-brush categories like “law” or “media.”

A nice thing about temporarily high prices—whether for a Tesla or an iPhone or a Manhattan apartment—is that they tend to spur production, either of that product or of close substitutes.

The coronavirus vaccine was created by a combination of private-sector ingenuity at Pfizer and Moderna and government spending and planning at Operation Warp Speed. The Trump administration has showed openness to using commercial vendors such as CVS and McKesson to administer and distribute the vaccine. Letting a committee of academic physicians rather than a market decide who gets the shot first is a departure from the private sector-led approach that has driven America’s success so far.

It may seem like the most important thing America has to give the rest of the world right now is the vaccine. An even more valuable export, though, would be confidence that free markets and capitalism work better than communism, cronyism, and state-run central planning. It might mean journalists or lawyers wait a week or two longer for this vaccine.

The net long-term result, though, would be that more shots and goods of all sorts wind up faster in the arms of those who can use them best.

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On January 3, 2021, the 116th Congress will come to a close, and moments later, the 117th Congress will begin. There will be, for a fleeting instance, an inter-session recess. During this period, in theory at least, President Trump could make recess appointments. And those appointments would last until the the next session concludes in January 2022. Would such appointments be constitutional?

Noel Canning recounts that in 1903, President Theodore Roosevelt made 160 recess appointments between the end of one Senate session and the beginning of another Senate session:

Most notably, in 1905 the Senate Committee on the Judiciary objected strongly to President Theodore Roosevelt’s use of the Clause to make more than 160 recess appointments during a “fictitious” inter-session recess. S.Rep. No. 4389, 58th Cong., 3d Sess., p. 2 (hereinafter 1905 Senate Report). At noon on December 7, 1903, the Senate President pro tempore had “declare[d]” a formal, “extraordinary session” of the Senate “adjourned without day,” and the next formal Senate session began immediately afterwards. 37 Cong. Rec. 544 (1903). President Roosevelt made over 160 recess appointments during the instantaneous inter-session interval.

The Senate Judiciary Committee issued a reporting, finding that this instantaneous break was not a “recess of the Senate” for purposes of the Recess Appointments Clause. The report defined “recess” as:

“the period of time when the Senate is not sitting in regular or extraordinary session as a branch of the Congress …; when its members owe no duty of attendance; when its Chamber is empty; when, because of its absence, it can not receive communications from the President or participate as a body in making appointments.”

Were these appointments valid? Later, Justice Breyer’s majority opinion flagged TR’s appointments:

There are a few historical examples of recess appointments made during inter-session recesses shorter than 10 days. We have already discussed President Theodore Roosevelt’s appointments during the instantaneous, “fictitious” recess.

Alas, Justice Breyer did not definitively resolve this issue.

There may be others of which we are unaware. But when considered against 200 years of settled practice, we regard these few scattered examples as anomalies. We therefore conclude, in light of historical practice, that a recess of more than 3 days but less than 10 days is presumptively too short to fall within the Clause. We add the word “presumptively” to leave open the possibility that some very unusual circumstance — a national catastrophe, for instance, that renders the Senate unavailable but calls for an urgent response — could demand the exercise of the recess-appointment power during a shorter break. (It should go without saying — except that Justice SCALIA compels us to say it — that political opposition in the Senate would not qualify as an unusual circumstance.)

Again, the Court’s opinion does not distinguish between inter-session recesses and intra-session recesses. The three-to-ten day standard would seem to apply to both types of recesses. An instantaneous inter-session appointment would be “presumptively” unconstitutional.

In his concurrence (really a dissent), Justice Scalia uses the TR example for a different purpose: to show that at the turn of the 20th century, even the most aggressive President did not try to make an intra-session recess appointment. Rather, TR tried to squeeze the recess appointments into the fleeting inter-session recess.

That was where things stood when, in 1903, Roosevelt made a number of controversial recess appointments. At noon on December 7, the Senate moved seamlessly from a special session into a regular one scheduled to begin at that hour. See 37 Cong. Rec. 544; 38 Cong. Rec. 1. Roosevelt claimed to have made the appointments in a “constructive” recess between the two sessions. See Special Session Is Merged Into Regular, N.Y. Times, Dec. 8, 1903, p. 1. He and his allies in the Senate justified the appointments on the theory that “at the moment the gavel falls to summon the regular session into being there is an infinitesimal fraction of a second, which is the recess between the two sessions.” Extra Session Muddle, N.Y. Times, Dec. 7, 1903, p. 3. In 1905, the Senate Judiciary Committee published a report criticizing the appointments on the ground that “the Constitution means a real recess, not a constructive one.” S.Rep. No. 4389, 58th Cong., 3d Sess., p. 4. The report explained that the recess is “the period of time when the Senate is not sitting in regular or extraordinary session… when its members owe no duty of attendance; when its Chamber is empty; when, because of its absence, it can not receive communications from the President or participate as a body in making appointments.” Id., at 2 (emphasis deleted).

The majority seeks support in this episode, claiming that the Judiciary Committee embraced a “broad and functional definition of `recess'” consistent with the one the majority adopts. Ante, at 2564. On the contrary, the episode powerfully refutes the majority’s theory. Roosevelt’s legal justification for his appointments was extremely aggressive, but even he recognized that “the Recess of the Senate” could take place only between formal sessions. If the majority’s view of the Clause had been considered plausible, Roosevelt could have strengthened his position considerably by making the appointments during an intra-session break of a few days, or at least a few hours. (Just 10 minutes after the new session began on December 7, the Senate took “a recess for one hour.” 38 Cong. Rec. 2.) That he instead strained to declare a dubious inter-session recess of an “infinitesimal fraction of a second” is powerful evidence that the majority’s view of “the Recess” was not taken seriously even as late as the beginning of the 20th century.

Yet the majority contends that “to the extent that the Senate or a Senate committee has expressed a view, that view has favored a functional definition of `recess’ [that] encompasses intra-session recesses.” Ante, at 2563. It rests that contention entirely on the 1905 Judiciary Committee Report. This distorts what the committee said when it denied Roosevelt’s claim that there had been a recess. If someone avers that a catfish is a cat, and I respond by pointing out that a catfish lives in water and does not have four legs, I have not endorsed the proposition that every land-dwelling quadruped is a cat. Likewise, when the Judiciary Committee explained that an instantaneous transition from one session to another is not a recess because the Senate is never absent, it did not suggest that the Senate’s absence is enough to create a recess. To assume otherwise, as the majority does, is to commit the fallacy of the inverse (otherwise known as denying the antecedent): the incorrect assumption that if P implies Q, then not-P implies not-Q. Contrary to that fallacious assumption, the Judiciary Committee surely believed, consistent with the Executive’s clear position at the time, that “the Recess” was limited to (actual, not constructive) breaks between sessions.

Scalia doesn’t actually say that TR’s appointments were invalid. Indeed, under Scalia’s reading of “the recess of the Senate,” an inter-session recess of any duration would suffice. Though, under the 1905 Senate Report’s functional definition of a “Recess,” a momentary lapse would not suffice. Here, Scalia’s opinion does not provide a clear answer.

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Newly recorded COVID-19 cases and deaths in the United States, which rose dramatically this fall, now seem to be declining. According to Worldometer’s numbers, the seven-day average of daily new cases fell by 18 percent between December 18 and yesterday. The seven-day average of daily deaths has fallen by 19 percent since December 22.

Daily new cases in the U.S. are still five times as high as they were in mid-September, while daily deaths are three times as high as they were in mid-October. But the seven-day average of daily deaths, about 2,200 as of yesterday, has dropped slightly below last spring’s peak after exceeding it for several weeks. The recent trends, assuming they continue, are a hopeful sign that the winter might not be quite as deadly as many people feared.

Back in October, for instance, Joe Biden said “the expectation is we’ll have another 200,000 Americans dead [from COVID-19] between now and the end of the year.” That implied a total U.S. death toll of about 423,000 by January 1. Per Worldometer, the current death toll is about 342,000. With four days to go in the year, it looks like Biden’s projection will be off by 70,000 or so.

Allowing for the lag between laboratory confirmation and death, the recent drop in fatalities corresponds with a decrease in daily new cases recorded in late November. Since newly identified infections are falling again, it is plausible that daily deaths will continue to fall as well.

But for how long? Since COVID-19 symptoms that might prompt someone to seek testing appear two to 14 days after infection, the increase in confirmed cases following the dip in late November is consistent with the fear that gatherings over Thanksgiving weekend would boost virus transmission. The impact of Christmas and New Year’s Day gatherings may not be fully apparent until mid-January or later.

The pessimistic take on the recent dip in daily new cases is that it simply represents a falloff from the surge associated with Thanksgiving, which suggests that cases and deaths will rise again as infections tied to Christmas and New Year’s Day celebrations show up in the official tallies. A more optimistic interpretation is that the dramatic increases in cases and deaths have encouraged wider and more consistent compliance with COVID-19 precautions.

Did the new legal restrictions imposed by many states also play a role? Maybe, although a comparison of the two most populous states seems inconsistent with that hypothesis. California, where Gov. Gavin Newsom has imposed a raft of new restrictions, has seen a smaller decline in daily deaths than Texas, where Gov. Greg Abbott has taken a more lenient approach.

However you interpret current trends, they show that continued increases in new cases and deaths are not inevitable. The way Americans choose to behave in the months until vaccines are widely available will determine exactly how deadly the pandemic proves to be.

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Critics have described Wonder Woman 1984 as “a film with a heart full of hope and love” and a reminder “that a cinematic superpower can transport us away from the doldrums of reality and save the day,” with a heroine who serves as “a moral and muscular counterweight to ego-driven male misdirections.”

But as I watched this movie from the comfort of my couch on Christmas evening, searching for those transporting signs of love, hope, and affirming feminist counterweights, I found something far less inspired. Wonder Woman 1984 is a risk aversion strategy in movie form. It is not a particularly good movie, because it was not designed to be a particularly good movie. It was designed to avoid being notably bad.

So it offers a bland rehash of the last Wonder Woman movie in a new setting, with somewhat less effective character bits, somewhat less amusing comic moments, and action scenes that seem to gesture at the original film’s high points without quite hitting them. It’s an aggressively cautious production that manages not to make any big mistakes, but in the process forecloses on the possibility of doing anything all that well. 

I will not describe the plot of this movie, except to say that it involves an ancient stone that grants wishes, which is fitting for a movie that traffics in ho-hum wish fulfillment. 

The story, such that it is, is mostly a vehicle for loosely connected scenes in which Wonder Woman (Gal Gadot) and her alter ego Diana Prince do the sort of things you might want to see Wonder Woman do. Here is Wonder Woman stopping jewel thieves in a brightly colored 1980s mall! Here is Diana Prince hanging out in Washington, D.C., with Steve Trevor (played once again by Chris Pine), her dead boyfriend who has magically returned via a gift from the Convenient Plot Device Fairy! Here is Wonder Woman fighting a supervillain-ized version of herself—Cheetah (Kristen Wiig), in strangely cheap-looking CGI! 

Some of the actors do fine work: Wiig in particular brings a loopy menace to an underwritten role, and Pine continues to demonstrate an endearing willingness to look goofy on screen. Gadot, however, is largely wasted. She has a strong screen presence, but her Wonder Woman is vague and undefined, except as an avatar of generic goodness and virtue, whatever you think that might be. And as Prince, she has all the personality of a supporting character in a teaser trailer. The movie picks up decades after its predecessor with no sense of what happened in between. What has she been doing all these years? What does she want out of life? Out of the world? 

The movie is set largely in Washington, D.C., and there are are interlocking subplots about Ronald Reagan’s nuclear ambitions and conflict in the Middle East, but they have been stripped of all real-world specifics. I suppose you could read a Trumpy mania into Pedro Pascal’s Maxwell Lord, a scammy real-estate developer who becomes one of the film’s two villains, but any connection seems more stylistic than specific; the movie might allude to Donald Trump, but it doesn’t say much of anything about him. 

Like so many of today’s biggest movies, Wonder Woman 1984 exists in a strangely depoliticized and decontextualized fantasy world, one with governments and wars but no politics or ideology to speak of—a virtual construct designed to summon the sensation of political relevance without any sense of what anyone might believe, or why. 

The story, similarly, isn’t really a story. It’s an excuse for a series of trailer-ready bits, a collection of loosely ordered scenes that you might have found in a movie you might actually have wanted to see. (And, it turns out, an unexpected number of jokes about fannypacks. See, it was the 1980s, and they’re so funny, because you wear them on your…never mind.)

Anyway, maybe Wonder Woman 1984 is a movie you did want to see, if only because 2020 has provided so few opportunities for this sort of megabudget, studio-made franchise entertainment. Until this year, superhero films with foreign-aid-program-sized budgets were a near weekly occurrence, and it’s been strange to suddenly go without. There is something intrinsically pleasurable about watching this sort of top-shelf production after going so long without one, even on a small screen at home. 

But there is also something disappointing in the fact that this one is so aggressively mediocre, so devoid of grander aspirations. Wonder Woman 1984 delivers on the promise of a perfectly average superhero movie experience, and not a cent more. It is neither over- nor underwhelming—you will leave the theater, or your living room, simply whelmed. It’s fine, I suppose, but it’s certainly not a wonder. 

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