Verfassungsblog, a German website focused on issues in constitutional law and legal theory, has published my article, “Does the Threat of Terrorism Justify Migration Restrictions?” Here is an excerpt:
Since the beginning of the War on Terror in 2001, and especially since the rise of ISIS and the Syrian Civil War, beginning in 2011, Western nations have adopted various policies barring migrants and refugees based on fear of terrorism and other security threats. These range from US President Donald Trump’s anti-Muslim travel bans to restrictions adopted by various European countries in the wake of the Syrian refugee crisis of 2015.
As I write these words in March 2022, European nations have adopted a much more open attitude towards refugees fleeing Russia’s brutal invasion of Ukraine. But a similar anti-migrant backlash could potentially occur in this case, as well, especially if the crisis goes on for a long time.
In both Europe and the United States, fears of terrorism and violence have been exploited by anti-immigrant nationalist political movements….
Concerns about terrorism are, to some extent, understandable. But the actual risk of terrorism caused by migrants is extremely low. And that risk can be mitigated by methods other than barring large numbers of refugees fleeing horrific violence and oppression. Indeed, accepting such refugees can actually help combat terrorism more than further it…. Barring migrants for the sake of achieving marginal reductions of already very low risks might be justified if restrictions imposed few or no morally significant costs. But, in fact, barring migrants fleeing oppression and war is a grave wrong. It inflicts enormous harm, violates human rights against unjust discrimination, and is also inimical to concepts of dignity prominent in modern European and international law jurisprudence….
The rest of the article defends the above points in detail, based on both moral considerations empirical evidence from Europe and the United States. While we cannot conclude that terrorism risks could never justify migration restrictions, there should be a strong presumption against such measures.
Airline passengers subject to the CDC mask mandate.
Yesterday, twenty-one mostly “red” states led by the state of Florida filed a lawsuit challenging the Centers for Disease Control (CDC) mandate requiring mask-wearing on public transportation and at transportation hubs, such as airports. The CDC claims that the mask mandate policy is authorized by 42 USC Section 264(a), the very same law that agency used to try to justify its nationwide eviction moratorium, which was invalidated by the Supreme Court in August, after a prolonged legal battle in the lower courts. The Court concluded (correctly, in my view) that the eviction moratorium lacked proper congressional authorization. The plaintiff states clearly hope to get a similar outcome with the mask mandate.
While the two cases raise related issues, I think the mask mandate is on much firmer legal footing than the eviction moratorium was. Courts may well uphold it.
I am far from happy about that prospect. I am deeply opposed to mask mandates, with the possible exception of a few highly specialized settings. In my view, their very modest public health benefits are greatly outweighed by the severity of this restriction on liberty, the pain and discomfort caused by mandatory mask-wearing, and the undermining of normal human interaction (which often depends on seeing people’s facial expressions). Mask mandates are especially reprehensible at a time when vaccination is available to virtually all Americans over the age of 5 (and those under 5 face very low risks even without vaccination), for the vast majority of vaccinated people the risks of Covid are comparable to or less than those of the flu, and highly risk-averse individuals can still protect themselves with one-way masking. Further, as Reason’s Jacob Sullum explains, the CDC’s perpetuation of the transportation mask mandate makes no sense at a time when the agency is recommending against mask mandates in almost every other setting, including many where the risk of infection is substantially greater.
But this is one of those cases where law and justice may be at odds with each other. The legal problems that doomed the eviction moratorium are much less evident in this case.
The Surgeon General, with the approval of the [Secretary of Health and Human Services], is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary. [a later statute gives this authority to the CDC rather than the Surgeon General]
The Trump and Biden administrations claimed the agency could enact a nationwide eviction moratorium under the catch-all provision authorizing “other measures” that the CDC considers “necessary” to stop the spread of disease.
The Supreme Court rejected that position because, if applied consistently, it would give the agency the power to suppress almost any activity that involves movement or interactions between people. Such sweeping authority is at odds with the more limited nature of the other authorities listed in the statute, and “other measures” should – the Court concluded – be interpreted as allowing only measures similar to the others listed in Section 264. In addition, the Court emphasized that interpreting Section 264 to grant the CDC the vast power it claimed is at odds with the “major question” doctrine, which requires Congress to “speak clearly when authorizing an agency to exercise powers of “vast ‘economic and political significance.'”
Several lower court decisions on the eviction moratorium also concluded that it violated constitutional limits on the delegation of legislative power to executive agencies. The government’s ultra-broad interpretation of Section 264 would give the CDC enormous power to ban virtually any human activity. If that isn’t a nondelegation problem, it’s hard to see what would be. I discussed the nondelegation and major question issues in the eviction moratorium case in greater detail in this article.
The CDC transportation mask mandate differs from the eviction order in a number of crucial ways. I summarized them in this March 2021 post:
I think this is unlikely because the focus on transportation is much more closely related to the purpose of preventing the “spread of communicable diseases from… from one State or possession into any other State or possession.” In addition, limiting it to transportation may fall into the category of promoting the “sanitation” of “articles” that facilitate the spread of disease across state lines. In this case, the relevant “articles” would be seats and air spaces on buses, airplanes, and other modes of transportation covered by the mask order. These distinctions may be the reason why Biden’s advisers concluded (correctly, in my view) that he did not have the power to order a general nationwide mask order, but could impose a much narrower one focused on transportation.
Unlike the eviction moratorium, the mask order need not rely on an ultra-broad interpretation of the vaguely worded “other measures” provision. It could instead potentially be based on the more specific provisions authorizing regulations promoting “sanitation.” For this reason, it is less likely to raise major question and nondelegation problems. Stretching the term “sanitation” to cover mask mandates wouldn’t give the CDC the power to suppress virtually any human activity, though it might allow it to mandate other intrusive restrictions on public transportation, such as wearing even more restrictive protective gear (gloves, hazmat suits, and so on).
I readily admit it may be possible to come up with plausible narrower interpretations of “sanitation” that would exclude mask mandates. The issue isn’t completely one-sided. But the government’s position here is a lot stronger than it was in the eviction moratorium litigation.
In addition to relying on the eviction moratorium precedent on the “major question” issue, the plaintiffs in the mask case also argue that the CDC order violates constitutional constraints on federal commandeering of state governments, by requiring the latter to enforce the mandate in state-owned transportation facilities. This argument is similar to that successfully made in other contexts where the federal government tries to compel states and localities to help enforce federal laws and regulations, including gun regulations, and the sanctuary cities cases.
I think the anti-commandeering argument has merit, though the federal government might be able to overcome it by claiming that the states are merely being regulated in the same way as owners of private transportation facilities. But even if the states prevail on that point, it wouldn’t lead to the end of the mask mandate; it wold only end the requirement that states help enforce it. In many contexts (such as with the War on Drugs), the federal government must rely on state cooperation to enforce federal law, because there are many more state law-enforcement agents out there than federal ones. Airports, however, are among the few places where there are often large numbers of federal law-enforcement personnel present on a regular basis, such as TSA employees. Thus, the feds can more easily “go it alone” here than in many other situations.
The Florida-led lawsuit isn’t the first legal challenge filed against the transportation mask mandate. The state of Texas (joined by Rep. Beth Van Duyne) filed an earlier suit last month. But the multi-state lawsuit is by far the most high-powered and high-profile case of this type.
In addition to the substantive issues these cases raise, there are some procedural questions involved. For example, the federal government might try to get the state plaintiffs dismissed on procedural grounds, such as by claiming they don’t have standing. Over the last couple years, the Supreme Court has tightened the procedural screws on state lawsuits against the federal government, most recently in the Obamacare severability case.
I won’t go into detail on these procedural issues here. But I tentatively predict that courts will not dismiss these cases based on standing or other procedural grounds, and will have to reach the merits. Among other things, the fact that the mandate applies on state-owned property and requires states to help enforce it gives them a strong argument that the states suffer tangible harm from the policy.
Finally, it’s possible this litigation will be mooted out if the transportation mask mandate expires on April 18, as currently scheduled. But the mandate has been extended several times before, and it is far from clear whether the Biden administration will do so again.
Fifty years ago, researchers at MIT produced The Limits to Growth, a report on how existing economic trends foretold environmental ruin. Left unchecked, the authors predicted, expanding populations and economic growth would exhaust global resources. and ultimately prompt civilizational collapse. The models upon which Limits was based suggested that global reserves of copper, silver, lead, tin, zinc, and petroleum would have all run out by now, and the world would be struggling to find enough arable land to feed a population of over 7 billion people. Without governmental efforts to change global trends, “[t]he most probable result will be a rather sudden and uncontrollable decline in both population and industrial capacity,” the authors warned.
As should be obvious, the predictions offered in The Limits to Growth (and other contemporary doomsayers) were wildly off the mark. Among other things, they failed to account for how markets respond to scarcity, producing incentives for efficiency and innovation, so that we may do more with less. In short, the authors failed to understand why markets encourage sustainability.
Those predicting imminent depletion of global resources and exhaustion of the earth’s carrying capacity also failed to predict what is arguably the most important — and under-appreciated — positive environmental trend of the 21st century: Dematerialization of modern economies. The same economic incentives which forestalled resource exhaustion have actually enabled people to do more with less throughout the developed world.
Dematerialization may be the most important, yet unsung, example of environmental progress in the 21st century. It is commonplace to observe that the relentless drive to do more with less has led to more efficient resource use, so that a soda can today is made with a fraction of the metal required 50 years ago. But dematerialization is not merely a story about increased efficiency or per‐capita reductions.
What is now being observed represents a fundamental decoupling of resource consumption from economic growth, such that as mature economies grow, they not only use fewer resources per unit of output, but they also consume fewer resources overall. In short, economic growth in the most developed nations increasingly coincides with a net reduction in resource consumption.
Let that sink in. It is not merely that we are using resources more efficiently in countries like the United States. It’s also that we are actually using fewer total resources year-over-year.
The United States uses less gold, steel, aluminum, copper, stone, cement, and even paper than it did at the start of this century, despite the continued increase in gross domestic product. Annual consumption of all but six of the 72 resources tracked by the U.S. Geological Service are “post peak.” We also use less fertilizer and water while growing more crops. Plastic consumption is up, as is energy use, but these two appear to have been decoupled from population and economic growth as well.
How does this dematerialization occur? Some examples may be useful. The dematerialization of soda cans is relatively easy to grasp, particularly for those of us who can remember the heavier cans of the 20th century. Aluminum cans weighed 85 grams when introduced in the 1950s. By 2011, the average can was under 13 grams. Cans today are not only thinner and lighter, they are produced more efficiently, with fewer separate sheets of metal.
Substitution can be an even more powerful source of dematerialization. Consider telecommunications. A single fiber optic cable made from less than 150 pounds of silica can carry the same volume of information as multiple 1‑ton copper cables. And were that not enough, satellite and wireless technologies enable us to bypass the use of physical cables altogether. We can communicate more and yet use vastly less material to do so. This not only saves copper, but other resources too. Think of all the paper saved by e‑mail, e‑banking, and e‑readers.
Not only did neo-Malthusians not predict these developments, they failed to recognize that such trends would be driven by private markets, and not governmental regulation.
We do more with less not because of government regulation or administrative direction, but because of capitalism and technology. These are the dominant forces driving dematerialization in the most developed countries and they could unleash similar gains in the rest of the world. We “want more all the time, but not more resources,” McAfee notes. We want more of what resources can provide, and one way to get more is to do more with less. Market capitalism both facilitates and enhances the underlying incentives that drive efficiency gains and technological advance. This not only leads to dematerialization but also promotes “critical aspects of well‐being,” including health and prosperity.
Unfortunately, these trends are not universal. While we consumer fewer resources in developed nations, these trends have not (yet) taken hold in many developing countries, which often lack well-functioning market economies. We have also not observed equivalent trends in many forms of pollution, largely because emissions are not priced the way consumption is. An entrepreneur who figures out how to produce widgets while using less copper gains an economic advantage, as the copper must be paid for. An entrepreneur who figures out how to emit fewer particulates or nitrogen oxides does not, as emitting such pollutants is not meaningfully priced and contemporary regulations rarely create meaningful incentives for emission reductions on the margin.
Understanding what has encouraged and allowed for dematerialization at the same time that populations have expanded and economies have grown is essential if these trends are to be replicated in developing countries and if we are to meet contemporary environmental challenges, including climate change. A suite of policies designed to replicate the same market dynamics that have led dematerialization could spur meaningful decarbonization. Ill-conceived policies, on the other hand, could actually do more harm than good. This is but one more reason policymakers should be more interested in fiscal instruments than regulatory mandates to reduce greenhouse gas emissions.
Another article in the same issue of Regulation as my More from Less review notes that greenhouse gas emissions in the United States may have peaked in 2005, and that GHG emissions appear to initially increase, but then decline, with economic growth. Such trends are not observed, however, in less-developed and less-market-oriented economies, such as China. The authors, Bruce Yandle and Jody Lipford, thins this indicates that domestic GHGs could continue to decline going forward, even without new government policies. This may be so, but the reductions are nowhere near what would be achieved if carbon emissions were priced and there were more powerful market incentives for market decarbonization. Greater market incentives for decarbonization could also lead to the development and deployment of low-carbon technologies that could facilitate emission reductions in other countries as well, and given that climate change is a global concern, such measures will be necessary if atmospheric stabilization is to be achieved.
The bottom line is that competitive markets create powerful incentives for efficient and sustainable resource use. Market-driven innovation has made it possible to provide for more people using fewer resources. Such environmental successes are often ignored because there is no policymaker or program than can take credit for them. They are the result of market processes, not governmental direction or design.
Replicating the incentives that spur dematerialization may be difficult, particularly because some obvious measures (such as taxing carbon emissions) are politically fraught. Yet pursuing such policies is the surest way to replicating market-driven environmental successes. Dematerialization is not a reason to ignore environmental problems, as many such problems are quite real. It does, however, provide a lesson for how to address many of the environmental problems that remain.
William Virgil spent almost three decades behind bars for a murder he didn’t commit. That guilty verdict came down after police in Kentucky withheld evidence that may have exonerated him during trial.
Yet Virgil won’t see any justice for that police misconduct, as he is now dead—the government roadblocks to his lawsuit so long and winding that they outlived him.
Such is the case with qualified immunity, the legal doctrine that allows local and state actors to violate your rights without fear of having to pay for it in civil court if the government misbehavior in question has not been “clearly established” in a prior court ruling.
But the cops at the center of Virgil’s story did violate “clearly established” law.
In April of 1987, Retha Welch was found dead in her Newport, Kentucky, home after she was stabbed repeatedly, hit on the head, and raped. Virgil was almost immediately pinpointed as a suspect, having developed a sexual relationship with Welch after Welch’s work in a jail ministry brought the two in contact. Based on circumstantial evidence, he was convicted the following year and was not released until December of 2015 after DNA testing excluded him as the killer.
Whether or not Virgil would have spent time in prison were it not for government malfeasance is impossible to say. But the U.S. Court of Appeals for the 6th Circuit ruled in 2018 that it should have been plainly obvious to any reasonable police officer—even in 1988—that withholding evidence from a defendant is unconstitutional. Specifically, former Newport Police Department officer Norman Wagner declined to disclose that he paid a jailhouse informant named Joe Womack to testify against Virgil after Wagner allegedly fed Womack details about the crime and promised to put in a good word with the parole board if Womack obliged. What’s more, Wagner, along with former officer Marc Brandt, failed to tell the defense about a serial killer investigation possibly connected to Welch’s murder, and that other suspects had been identified as a part of that effort.
“[Virgil] alleges, for example, that the officers tried to frame him; that they coerced an inmate to testify falsely that Virgil had confessed to the murder; and that they then deliberately suppressed exculpatory evidence regarding alternative suspects,” wrote Judge Joan Larsen for the 6th Circuit in December of 2018. “Such conduct, if proved, would surely amount to bad faith or its functional equivalent; and there can be little question that it was well established before September 1988 that police officers could not deliberately conceal material, exculpatory evidence.”
Virgil died in January of this year—almost three years after that decision came down, and even longer after a lower court came to the same conclusion. But his case was still prohibited from going before a jury, as the government insisted on appealing again to the same court which already ruled in Virgil’s favor.
“A reasonably trained police officer in 1988 would have certainly known that you have to disclose exculpatory evidence implicating other people in a homicide investigation,” says Elliot Slosar, an attorney at Loevy & Loevy, who is representing Virgil. “That type of law was clearly established not only by 1988, but by 1968. Because of that, we do view their appeal as frivolous.”
The suit was first filed in early 2016. Virgil’s estate is not expected to go to trial until 2023, with the government invoking its special protections to continue delaying a claim that multiple courts have already said should proceed to a jury trial. “Qualified immunity…enable[s] defendants who have been plausibly accused of misconduct to stretch out the litigation, to make it longer and more expensive than it would be,” says Clark Neily, senior vice president for legal studies at the Cato Institute. “Unfortunately, some plaintiffs do end up dying during litigation….It’s a real tragedy.” Meanwhile, Virgil overcoming qualified immunity did not entitle him to any sort of judgement—it merely afforded him the privilege to impanel his peers and state his case, something his cousin will now do in his stead.
“William just always wanted justice, which means a lot of different things,” says Slosar. “He wanted his day in court. He wanted for the public to see how he was framed for a crime he did not commit. He wanted for the public to see evidence of who really committed this tragic murder. More than anything, William always wanted these police officers to be held accountable for every single day that he was ripped away from his family and spent wrongfully incarcerated.”
That’s perhaps a modest list for someone who spent 28 years behind bars paying for a murder he didn’t take part in. And yet asking the government to pay for its part in ruining Virgil’s life is apparently too big an ask.
Verfassungsblog, a German website focused on issues in constitutional law and legal theory, has published my article, “Does the Threat of Terrorism Justify Migration Restrictions?” Here is an excerpt:
Since the beginning of the War on Terror in 2001, and especially since the rise of ISIS and the Syrian Civil War, beginning in 2011, Western nations have adopted various policies barring migrants and refugees based on fear of terrorism and other security threats. These range from US President Donald Trump’s anti-Muslim travel bans to restrictions adopted by various European countries in the wake of the Syrian refugee crisis of 2015.
As I write these words in March 2022, European nations have adopted a much more open attitude towards refugees fleeing Russia’s brutal invasion of Ukraine. But a similar anti-migrant backlash could potentially occur in this case, as well, especially if the crisis goes on for a long time.
In both Europe and the United States, fears of terrorism and violence have been exploited by anti-immigrant nationalist political movements….
Concerns about terrorism are, to some extent, understandable. But the actual risk of terrorism caused by migrants is extremely low. And that risk can be mitigated by methods other than barring large numbers of refugees fleeing horrific violence and oppression. Indeed, accepting such refugees can actually help combat terrorism more than further it…. Barring migrants for the sake of achieving marginal reductions of already very low risks might be justified if restrictions imposed few or no morally significant costs. But, in fact, barring migrants fleeing oppression and war is a grave wrong. It inflicts enormous harm, violates human rights against unjust discrimination, and is also inimical to concepts of dignity prominent in modern European and international law jurisprudence….
The rest of the article defends the above points in detail, based on both moral considerations empirical evidence from Europe and the United States. While we cannot conclude that terrorism risks could never justify migration restrictions, there should be a strong presumption against such measures.
Airline passengers subject to the CDC mask mandate.
Yesterday, twenty-one mostly “red” states led by the state of Florida filed a lawsuit challenging the Centers for Disease Control (CDC) mandate requiring mask-wearing on public transportation and at transportation hubs, such as airports. The CDC claims that the mask mandate policy is authorized by 42 USC Section 264(a), the very same law that agency used to try to justify its nationwide eviction moratorium, which was invalidated by the Supreme Court in August, after a prolonged legal battle in the lower courts. The Court concluded (correctly, in my view) that the eviction moratorium lacked proper congressional authorization. The plaintiff states clearly hope to get a similar outcome with the mask mandate.
While the two cases raise related issues, I think the mask mandate is on much firmer legal footing than the eviction moratorium was. Courts may well uphold it.
I am far from happy about that prospect. I am deeply opposed to mask mandates, with the possible exception of a few highly specialized settings. In my view, their very modest public health benefits are greatly outweighed by the severity of this restriction on liberty, the pain and discomfort caused by mandatory mask-wearing, and the undermining of normal human interaction (which often depends on seeing people’s facial expressions). Mask mandates are especially reprehensible at a time when vaccination is available to virtually all Americans over the age of 5 (and those under 5 face very low risks even without vaccination), for the vast majority of vaccinated people the risks of Covid are comparable to or less than those of the flu, and highly risk-averse individuals can still protect themselves with one-way masking. Further, as Reason’s Jacob Sullum explains, the CDC’s perpetuation of the transportation mask mandate makes no sense at a time when the agency is recommending against mask mandates in almost every other setting, including many where the risk of infection is substantially greater.
But this is one of those cases where law and justice may be at odds with each other. The legal problems that doomed the eviction moratorium are much less evident in this case.
The Surgeon General, with the approval of the [Secretary of Health and Human Services], is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary. [a later statute gives this authority to the CDC rather than the Surgeon General]
The Trump and Biden administrations claimed the agency could enact a nationwide eviction moratorium under the catch-all provision authorizing “other measures” that the CDC considers “necessary” to stop the spread of disease.
The Supreme Court rejected that position because, if applied consistently, it would give the agency the power to suppress almost any activity that involves movement or interactions between people. Such sweeping authority is at odds with the more limited nature of the other authorities listed in the statute, and “other measures” should – the Court concluded – be interpreted as allowing only measures similar to the others listed in Section 264. In addition, the Court emphasized that interpreting Section 264 to grant the CDC the vast power it claimed is at odds with the “major question” doctrine, which requires Congress to “speak clearly when authorizing an agency to exercise powers of “vast ‘economic and political significance.'”
Several lower court decisions on the eviction moratorium also concluded that it violated constitutional limits on the delegation of legislative power to executive agencies. The government’s ultra-broad interpretation of Section 264 would give the CDC enormous power to ban virtually any human activity. If that isn’t a nondelegation problem, it’s hard to see what would be. I discussed the nondelegation and major question issues in the eviction moratorium case in greater detail in this article.
The CDC transportation mask mandate differs from the eviction order in a number of crucial ways. I summarized them in this March 2021 post:
I think this is unlikely because the focus on transportation is much more closely related to the purpose of preventing the “spread of communicable diseases from… from one State or possession into any other State or possession.” In addition, limiting it to transportation may fall into the category of promoting the “sanitation” of “articles” that facilitate the spread of disease across state lines. In this case, the relevant “articles” would be seats and air spaces on buses, airplanes, and other modes of transportation covered by the mask order. These distinctions may be the reason why Biden’s advisers concluded (correctly, in my view) that he did not have the power to order a general nationwide mask order, but could impose a much narrower one focused on transportation.
Unlike the eviction moratorium, the mask order need not rely on an ultra-broad interpretation of the vaguely worded “other measures” provision. It could instead potentially be based on the more specific provisions authorizing regulations promoting “sanitation.” For this reason, it is less likely to raise major question and nondelegation problems. Stretching the term “sanitation” to cover mask mandates wouldn’t give the CDC the power to suppress virtually any human activity, though it might allow it to mandate other intrusive restrictions on public transportation, such as wearing even more restrictive protective gear (gloves, hazmat suits, and so on).
I readily admit it may be possible to come up with plausible narrower interpretations of “sanitation” that would exclude mask mandates. The issue isn’t completely one-sided. But the government’s position here is a lot stronger than it was in the eviction moratorium litigation.
In addition to relying on the eviction moratorium precedent on the “major question” issue, the plaintiffs in the mask case also argue that the CDC order violates constitutional constraints on federal commandeering of state governments, by requiring the latter to enforce the mandate in state-owned transportation facilities. This argument is similar to that successfully made in other contexts where the federal government tries to compel states and localities to help enforce federal laws and regulations, including gun regulations, and the sanctuary cities cases.
I think the anti-commandeering argument has merit, though the federal government might be able to overcome it by claiming that the states are merely being regulated in the same way as owners of private transportation facilities. But even if the states prevail on that point, it wouldn’t lead to the end of the mask mandate; it wold only end the requirement that states help enforce it. In many contexts (such as with the War on Drugs), the federal government must rely on state cooperation to enforce federal law, because there are many more state law-enforcement agents out there than federal ones. Airports, however, are among the few places where there are often large numbers of federal law-enforcement personnel present on a regular basis, such as TSA employees. Thus, the feds can more easily “go it alone” here than in many other situations.
The Florida-led lawsuit isn’t the first legal challenge filed against the transportation mask mandate. The state of Texas (joined by Rep. Beth Van Duyne) filed an earlier suit last month. But the multi-state lawsuit is by far the most high-powered and high-profile case of this type.
In addition to the substantive issues these cases raise, there are some procedural questions involved. For example, the federal government might try to get the state plaintiffs dismissed on procedural grounds, such as by claiming they don’t have standing. Over the last couple years, the Supreme Court has tightened the procedural screws on state lawsuits against the federal government, most recently in the Obamacare severability case.
I won’t go into detail on these procedural issues here. But I tentatively predict that courts will not dismiss these cases based on standing or other procedural grounds, and will have to reach the merits. Among other things, the fact that the mandate applies on state-owned property and requires states to help enforce it gives them a strong argument that the states suffer tangible harm from the policy.
Finally, it’s possible this litigation will be mooted out if the transportation mask mandate expires on April 18, as currently scheduled. But the mandate has been extended several times before, and it is far from clear whether the Biden administration will do so again.
Fifty years ago, researchers at MIT produced The Limits to Growth, a report on how existing economic trends foretold environmental ruin. Left unchecked, the authors predicted, expanding populations and economic growth would exhaust global resources. and ultimately prompt civilizational collapse. The models upon which Limits was based suggested that global reserves of copper, silver, lead, tin, zinc, and petroleum would have all run out by now, and the world would be struggling to find enough arable land to feed a population of over 7 billion people. Without governmental efforts to change global trends, “[t]he most probable result will be a rather sudden and uncontrollable decline in both population and industrial capacity,” the authors warned.
As should be obvious, the predictions offered in The Limits to Growth (and other contemporary doomsayers) were wildly off the mark. Among other things, they failed to account for how markets respond to scarcity, producing incentives for efficiency and innovation, so that we may do more with less. In short, the authors failed to understand why markets encourage sustainability.
Those predicting imminent depletion of global resources and exhaustion of the earth’s carrying capacity also failed to predict what is arguably the most important — and under-appreciated — positive environmental trend of the 21st century: Dematerialization of modern economies. The same economic incentives which forestalled resource exhaustion have actually enabled people to do more with less throughout the developed world.
Dematerialization may be the most important, yet unsung, example of environmental progress in the 21st century. It is commonplace to observe that the relentless drive to do more with less has led to more efficient resource use, so that a soda can today is made with a fraction of the metal required 50 years ago. But dematerialization is not merely a story about increased efficiency or per‐capita reductions.
What is now being observed represents a fundamental decoupling of resource consumption from economic growth, such that as mature economies grow, they not only use fewer resources per unit of output, but they also consume fewer resources overall. In short, economic growth in the most developed nations increasingly coincides with a net reduction in resource consumption.
Let that sink in. It is not merely that we are using resources more efficiently in countries like the United States. It’s also that we are actually using fewer total resources year-over-year.
The United States uses less gold, steel, aluminum, copper, stone, cement, and even paper than it did at the start of this century, despite the continued increase in gross domestic product. Annual consumption of all but six of the 72 resources tracked by the U.S. Geological Service are “post peak.” We also use less fertilizer and water while growing more crops. Plastic consumption is up, as is energy use, but these two appear to have been decoupled from population and economic growth as well.
How does this dematerialization occur? Some examples may be useful. The dematerialization of soda cans is relatively easy to grasp, particularly for those of us who can remember the heavier cans of the 20th century. Aluminum cans weighed 85 grams when introduced in the 1950s. By 2011, the average can was under 13 grams. Cans today are not only thinner and lighter, they are produced more efficiently, with fewer separate sheets of metal.
Substitution can be an even more powerful source of dematerialization. Consider telecommunications. A single fiber optic cable made from less than 150 pounds of silica can carry the same volume of information as multiple 1‑ton copper cables. And were that not enough, satellite and wireless technologies enable us to bypass the use of physical cables altogether. We can communicate more and yet use vastly less material to do so. This not only saves copper, but other resources too. Think of all the paper saved by e‑mail, e‑banking, and e‑readers.
Not only did neo-Malthusians not predict these developments, they failed to recognize that such trends would be driven by private markets, and not governmental regulation.
We do more with less not because of government regulation or administrative direction, but because of capitalism and technology. These are the dominant forces driving dematerialization in the most developed countries and they could unleash similar gains in the rest of the world. We “want more all the time, but not more resources,” McAfee notes. We want more of what resources can provide, and one way to get more is to do more with less. Market capitalism both facilitates and enhances the underlying incentives that drive efficiency gains and technological advance. This not only leads to dematerialization but also promotes “critical aspects of well‐being,” including health and prosperity.
Unfortunately, these trends are not universal. While we consumer fewer resources in developed nations, these trends have not (yet) taken hold in many developing countries, which often lack well-functioning market economies. We have also not observed equivalent trends in many forms of pollution, largely because emissions are not priced the way consumption is. An entrepreneur who figures out how to produce widgets while using less copper gains an economic advantage, as the copper must be paid for. An entrepreneur who figures out how to emit fewer particulates or nitrogen oxides does not, as emitting such pollutants is not meaningfully priced and contemporary regulations rarely create meaningful incentives for emission reductions on the margin.
Understanding what has encouraged and allowed for dematerialization at the same time that populations have expanded and economies have grown is essential if these trends are to be replicated in developing countries and if we are to meet contemporary environmental challenges, including climate change. A suite of policies designed to replicate the same market dynamics that have led dematerialization could spur meaningful decarbonization. Ill-conceived policies, on the other hand, could actually do more harm than good. This is but one more reason policymakers should be more interested in fiscal instruments than regulatory mandates to reduce greenhouse gas emissions.
Another article in the same issue of Regulation as my More from Less review notes that greenhouse gas emissions in the United States may have peaked in 2005, and that GHG emissions appear to initially increase, but then decline, with economic growth. Such trends are not observed, however, in less-developed and less-market-oriented economies, such as China. The authors, Bruce Yandle and Jody Lipford, thins this indicates that domestic GHGs could continue to decline going forward, even without new government policies. This may be so, but the reductions are nowhere near what would be achieved if carbon emissions were priced and there were more powerful market incentives for market decarbonization. Greater market incentives for decarbonization could also lead to the development and deployment of low-carbon technologies that could facilitate emission reductions in other countries as well, and given that climate change is a global concern, such measures will be necessary if atmospheric stabilization is to be achieved.
The bottom line is that competitive markets create powerful incentives for efficient and sustainable resource use. Market-driven innovation has made it possible to provide for more people using fewer resources. Such environmental successes are often ignored because there is no policymaker or program than can take credit for them. They are the result of market processes, not governmental direction or design.
Replicating the incentives that spur dematerialization may be difficult, particularly because some obvious measures (such as taxing carbon emissions) are politically fraught. Yet pursuing such policies is the surest way to replicating market-driven environmental successes. Dematerialization is not a reason to ignore environmental problems, as many such problems are quite real. It does, however, provide a lesson for how to address many of the environmental problems that remain.
A New Jersey town is suing an elderly woman for filing too many public records requests and speaking out at city meetings, saying the octogenarian is bullying town officials.
Irvington Township, in a lawsuit filed in New Jersey state court, says 82-year-old Elouise McDaniel has harassed and annoyed town employees by filing frequent “frivolous” ethics complaints and public records requests. Specifically, the township accuses McDaniel of malicious abuse of process, malicious prosecution, defamation, and harassment.
Among Irvington Township’s grievances is the fact that McDaniel filed more than 75 public records requests for township information over a three-year period through New Jersey’s Open Public Records Act (OPRA). Responding to McDaniel’s “voluminous OPRA requests has been unduly burdensome, time consuming and expensive,” Irvington says in the lawsuit.
McDaniel, who unsuccessfully ran for mayor of the town in 2018, told NJ.com that she thought the suit was political.
“This has been going on for a long time and I’m just tired at this point,” she said. “I’m tired, this is ridiculous. I want to live out my final years … in peace.”
All 50 states have laws enshrining the right to access government records, and while requests can be denied for being overbroad or too burdensome to complete, there is nothing illegal or actionable about sending too many requests. (I would have already been sued into poverty if it were so.)
Over the past several years, though, city and state agencies have started filing what are known as “reverse FOIA” lawsuits against public records requesters, asking a court to block disclosure and forcing the requester to defend their right to access public records. (In fact, a Washington police department filed a reverse FOIA suit against me two years ago.)
Irvington’s lawsuit goes much further, veering into what McDaniel and First Amendment experts say is outright retaliation. Adam Steinbaugh, a First Amendment lawyer for the Foundation for Individual Rights in Education (FIRE), speaking in his personal capacity, says the unusual suit falls into “man-bites-dog territory.”
Among the lawsuit’s demands is that McDaniel turn over communications and documents related to her claims of corruption, which presumably includes records the town already gave her.
“Here’s a city requesting public records from a citizen, whining that an elderly resident exercised her right to request records, and trying to get a court to order a citizen to stop criticizing her town,” he says. “It’s a shame that New Jersey doesn’t have an anti-SLAPP [Strategic Lawsuit Against Public Participation] statute. This is the most ill-considered SLAPP I’ve seen since I watched the Oscars.”
The suit, if successful, could also set a terrible state precedent that would allow agencies to set arbitrary thresholds limiting how many requests citizens could file.
Irvington also says McDaniel has “bullied and annoyed Township administration on repeated occasions, and has otherwise continued to disrupt Township operations.”
As evidence, the lawsuit points to an instance in 2017 when McDaniel approached a city council member, pointed her finger, and said, “I’m going to get you and you’re going to pay.” As a result, the suit says, McDaniel was charged and pleaded guilty to disturbing the peace.
“If you’re a government official—presumably an adult—complaining to a court that an elderly woman ‘bullied’ you, then you have chosen the wrong profession,” Steinbaugh says.
Irvington also says McDaniel made numerous defamatory accusations against township officials of “theft, misconduct, cronyism, nepotism, and unethical and criminal behavior.”
The irony, of course, is that no one outside of Irvington would have likely heard about McDaniel’s claims of corruption if the town had not decided to sue her for being annoying.
Irvington Township declined to comment, citing the active litigation.
UN Establishes War Crimes Tribunal To Probe Russian Actions In Ukraine
Starting two weeks ago Joe Biden began using the label “war crimes” to describe Putin’s actions and that of this military, a charge the US president repeated this past weekend while visiting Ukrainian refugees and American troops in Poland. Of course, this has also been echoed among some European allies as well, particularly the United Kingdom, which has established its own legal probe.
On Wednesday the United Nations formally established a war crimes investigative tribunal, naming three human rights experts to initiate a probe into Russia’s military actions in Ukraine, amid allegations of “indiscriminate” bombardment of civilians and other acts of aggression toward non-combatants.
What’s been dubbed an “independent” panel is to be led by Erik Mose of Norway, and tasked with looking into human rights abuses “in the context of the aggression against Ukraine by the Russian Federation,” according to a statement.
It’s expected to issue a report of initial findings in September. Reuters profiles lead investigator Mose as “a former judge of the European Court of Human Rights and former president of the International Criminal Tribunal for Rwanda who also served as a judge on Norway’s Supreme Court.”
The southern port of Mariupol in particular has been devastated after falling to Russian forces, but enduring weeks of a siege without access to electricity and water, and in some instances food as well. It’s expected to be high on the list of places where Russian military operations will be examined.
It was on March 16 that President Biden first said, “I think he is a war criminal,” which followed a speech at the White House. According to CNN at the time:
The shift from the administration’s previous stance came after an emotional address to Congress from Ukrainian President Volodymyr Zelensky, who aired a video showing Ukrainians suffering amid Russia’s onslaught. Zelensky asked American lawmakers and Biden for more help defending itself, including a no-fly zone and fighter jets.
Biden has since upped the rhetoric even more, in the last days using words like “butcher” and “murderous dictator” and “thug” – to which Russia has responded by warning it’s on the brink of severing all formal diplomatic relations. The Kremlin also appears reluctant to respond in kind, seeing in the personal attack on Putin the potential for unnecessary tit-for-tat leading to a dangerous confrontation.
The Kremlin has meanwhile complained that the West has by and large completely overlooked crimes against pro-Russian civilians in the Donbas region going back to 2014. Russia has also alleged during the current military “special operation” that Ukrainian civilians deemed “Russia sympathizers” have in some instances been tortured and even killed, especially by groups like the neo-Nazi Azov battalion.
A New Jersey town is suing an elderly woman for filing too many public records requests and speaking out at city meetings, saying the octogenarian is bullying town officials.
Irvington Township, in a lawsuit filed in New Jersey state court, says 82-year-old Elouise McDaniel has harassed and annoyed town employees by filing frequent “frivolous” ethics complaints and public records requests. Specifically, the township accuses McDaniel of malicious abuse of process, malicious prosecution, defamation, and harassment.
Among Irvington Township’s grievances is the fact that McDaniel filed more than 75 public records requests for township information over a three-year period through New Jersey’s Open Public Records Act (OPRA). Responding to McDaniel’s “voluminous OPRA requests has been unduly burdensome, time consuming and expensive,” Irvington says in the lawsuit.
McDaniel, who unsuccessfully ran for mayor of the town in 2018, told NJ.com that she thought the suit was political.
“This has been going on for a long time and I’m just tired at this point,” she said. “I’m tired, this is ridiculous. I want to live out my final years … in peace.”
All 50 states have laws enshrining the right to access government records, and while requests can be denied for being overbroad or too burdensome to complete, there is nothing illegal or actionable about sending too many requests. (I would have already been sued into poverty if it were so.)
Over the past several years, though, city and state agencies have started filing what are known as “reverse FOIA” lawsuits against public records requesters, asking a court to block disclosure and forcing the requester to defend their right to access public records. (In fact, a Washington police department filed a reverse FOIA suit against me two years ago.)
Irvington’s lawsuit goes much further, veering into what McDaniel and First Amendment experts say is outright retaliation. Adam Steinbaugh, a First Amendment lawyer for the Foundation for Individual Rights in Education (FIRE), speaking in his personal capacity, says the unusual suit falls into “man-bites-dog territory.”
Among the lawsuit’s demands is that McDaniel turn over communications and documents related to her claims of corruption, which she presumably received from records the town already gave her.
“Here’s a city requesting public records from a citizen, whining that an elderly resident exercised her right to request records, and trying to get a court to order a citizen to stop criticizing her town,” he says. “It’s a shame that New Jersey doesn’t have an anti-SLAPP [Strategic Lawsuit Against Public Participation] statute. This is the most ill-considered SLAPP I’ve seen since I watched the Oscars.”
The suit, if successful, could also set a terrible state precedent that would allow agencies to set arbitrary thresholds limiting how many requests citizens could file.
Irvington also says McDaniel has “bullied and annoyed Township administration on repeated occasions, and has otherwise continued to disrupt Township operations.”
As evidence, the lawsuit points to an instance in 2017 when McDaniel approached a city council member, pointed her finger, and said, “I’m going to get you and you’re going to pay.” As a result, the suit says, McDaniel was charged and pleaded guilty to disturbing the peace.
“If you’re a government official—presumably an adult—complaining to a court that an elderly woman ‘bullied’ you, then you have chosen the wrong profession,” Steinbaugh says.
Irvington also says McDaniel made numerous defamatory accusations against township officials of “theft, misconduct, cronyism, nepotism, and unethical and criminal behavior.”
The irony, of course, is that no one outside of Irvington would have likely heard about McDaniel’s claims of corruption if the town had not decided to sue her for being annoying.
Irvington Township declined to comment, citing the active litigation.
