Nina and Frank Bottini are young parents who for nearly a decade have been fighting the city of San Diego to build a single-family residence in the suburban community of La Jolla. At the time of their purchase of the lot, the land was occupied by a dilapidated house, which the city first deemed not historic, then declared unsafe and a public nuisance, and then ordered demolished. In a reality-defying flip flop, only after the non-historic, dilapidated house was demolished and removed from the property did the city mandate an infeasible time-traveling historical resource review of the then empty lot.
The city has at every turn delayed the couple’s efforts to build a home, goaded by local historical-preservationist groups upset over the Bottinis’ demolition of the cottage on the now-vacant property. Now, the city refuses to grant a permit to build a single-family residence until the Bottinis undertake an expensive environmental-impact review. The couple has sued, arguing that the city’s prolonged delays and irrational permit requirements amount to a “regulatory taking” under the Fifth Amendment.
The Bottinis lost in the California Court of Appeal, even though the court ruled that the city council acted unlawfully. Despite the city’s malfeasance, the court ruled that the Bottinis’ didn’t have “distinct investment-backed expectations”—a concept that comes from a case called Penn Central—that were thwarted by the city’s actions. That was because they did not know—and could not have known—at the time of purchase whether they would be required either to fix up the old home as a historical landmark or rip it down as a public nuisance. The Court of Appeal held that these uncertain expectations, wrought solely by government action, doomed the Bottinis takings claim.
Two pillars of Takings Clause jurisprudence have, in recent decades, proved untenable. One is the test from the 1978 Penn Central case. That test was meant to determine when a “partial regulatory taking” occurs if a government action or delay deprives owners of certain uses of their property. The second, from the 1987 case of First English, exempts “normal delays” in the land-use regulation process from takings scrutiny.
Read more at https://www.cato.org/blog/stop-san-diegos-homewrecking
2020-03-30
2020-03-29
Cato: Bump Stocks Aren’t Machine Guns
A bump stock is firearm accessory that allows the user to fire a semi‐automatic gun more quickly by harnessing its recoil. After the tragic 2017 mass killing in Las Vegas, it was reported that the shooter used guns equipped with bump stocks to carry out his crime, leading to a backlash against the devices. Despite considerable bipartisan support in Congress for passing a bill banning bump stocks, President Trump told members of Congress not to address the issue. Instead, the president directed his administration to ban bump stocks by reinterpreting existing laws that ban fully automatic guns. Thus, the Bureau of Alcohol, Tobacco, and Firearms reinterpreted the word “machinegun” to include bump‐stock devices, despite a longstanding determination under both the Bush and Obama administrations that bump stocks did not fit within the legal meaning of “machinegun.”
As a result, possession of a bump stock is now a crime, even though Congress has never passed a law criminalizing the devices. Before the ban was enacted, members of the president’s own administration had expressed concerns about this approach, saying that only Congress has the power to ban bump stocks.
Several lawsuits were filed against the rule. In Guedes v. BATF, the D.C. Circuit ruled in favor of the government. Instead of analyzing whether the administration was correct in determining that the term “machinegun” includes bump stocks, however, the court simply deferred to the administration’s interpretation. This was an example of the controversial doctrine of “Chevron deference,” in which courts defer to an administrative agency’s permissible interpretation of a statutory term if the term is ambiguous.
Read more at https://www.cato.org/blog/bump-stocks-arent-machine-guns
As a result, possession of a bump stock is now a crime, even though Congress has never passed a law criminalizing the devices. Before the ban was enacted, members of the president’s own administration had expressed concerns about this approach, saying that only Congress has the power to ban bump stocks.
Several lawsuits were filed against the rule. In Guedes v. BATF, the D.C. Circuit ruled in favor of the government. Instead of analyzing whether the administration was correct in determining that the term “machinegun” includes bump stocks, however, the court simply deferred to the administration’s interpretation. This was an example of the controversial doctrine of “Chevron deference,” in which courts defer to an administrative agency’s permissible interpretation of a statutory term if the term is ambiguous.
Read more at https://www.cato.org/blog/bump-stocks-arent-machine-guns
2020-03-28
Cato: What Is “Nonessential” Business?
Maryland Gov. Larry Hogan has followed other governors in ordering all “nonessential” businesses to close workplace sites within his state. But is it so easy for policymakers to judge what is “essential” and “nonessential” business activity?
Take supermarkets. They are essential as the main food source for people self‐isolating or working from home. But if supermarkets and their supplies are essential, so are their goods’ manufacturers, the producers of plastic and cardboard carrying the goods, the company’s accountants and financial advisers, cleaning companies that serve the stores, cleaning products used by said companies, the truckers who ferry the goods, gas stations, rest stops, farms, farm equipment manufacturers, mechanical service stations for trucks and farm equipment, and more.
As you can see when you review the family tree of any consumer‐facing industry, the market economy is a vast network of interconnections, both vertically and horizontally. One of the reasons why even a partial shutdown can be so catastrophic is because of knock‐on effects through supply‐chains or indirect losses of income affecting families, as coming unemployment figures and GDP numbers will surely show.
Hogan’s list of all he deems “essential” shows this clearly. The sheer number of industries thought required for society to function shows that a market economy is a vast tapestry of non‐coercive, interlinked cooperation, far from the picture of dog‐eat‐dog competition painted by its critics.
Firms “excluded” from shutting down include: the chemicals sector, a raft of commercial facilities (including dry cleaning), communications firms (internet, telecoms, cable, broadcasters), a whole of “critical manufacturing” companies, the “defense industrial base,” the energy sector, other utilities such as water, a range of financial services firms, the food and food processing supply chain, pet stores and vets, healthcare and related services, funeral homes, large parts of the transportation sector, sectors in IT, government facilities industries, and staffing and payroll service firms.
Read more at https://www.cato.org/blog/what-nonessential-business
Take supermarkets. They are essential as the main food source for people self‐isolating or working from home. But if supermarkets and their supplies are essential, so are their goods’ manufacturers, the producers of plastic and cardboard carrying the goods, the company’s accountants and financial advisers, cleaning companies that serve the stores, cleaning products used by said companies, the truckers who ferry the goods, gas stations, rest stops, farms, farm equipment manufacturers, mechanical service stations for trucks and farm equipment, and more.
As you can see when you review the family tree of any consumer‐facing industry, the market economy is a vast network of interconnections, both vertically and horizontally. One of the reasons why even a partial shutdown can be so catastrophic is because of knock‐on effects through supply‐chains or indirect losses of income affecting families, as coming unemployment figures and GDP numbers will surely show.
Hogan’s list of all he deems “essential” shows this clearly. The sheer number of industries thought required for society to function shows that a market economy is a vast tapestry of non‐coercive, interlinked cooperation, far from the picture of dog‐eat‐dog competition painted by its critics.
Firms “excluded” from shutting down include: the chemicals sector, a raft of commercial facilities (including dry cleaning), communications firms (internet, telecoms, cable, broadcasters), a whole of “critical manufacturing” companies, the “defense industrial base,” the energy sector, other utilities such as water, a range of financial services firms, the food and food processing supply chain, pet stores and vets, healthcare and related services, funeral homes, large parts of the transportation sector, sectors in IT, government facilities industries, and staffing and payroll service firms.
Read more at https://www.cato.org/blog/what-nonessential-business
Cato: The Constitutional Police Power, In And After An Emergency
The framers of American government were only too well aware of epidemics as a danger to human life (here’s a list of more than 30 such outbreaks that occurred between 1763 and 1783; Alexander Hamilton and his wife Elizabeth, after both contracting yellow fever and surviving, then underwent quarantine). And American constitutional law has from the outset recognized and countenanced a “police power” in state government during true emergencies to intercept the sorts of otherwise harmless movements and actions that can turn well‐meaning individuals into vectors of physical harm to follow citizens. At the same time, as they also knew, freedom would count for little were these emergency powers to set the measure for what government can do to citizens in circumstances short of that dire urgency.
Read more at https://www.cato.org/blog/constitutional-police-power-after-emergency
Read more at https://www.cato.org/blog/constitutional-police-power-after-emergency
Cato: What Ukraine Tells Us about Trump
According to a formal whistleblower complaint, President Donald Trump withheld Congressionally‐appropriated aid from Ukraine in an attempt to pressure Ukraine’s new president, Volodymyr Zelensky, to investigate Trump’s 2020 political rival, former Vice President Joe Biden. In addition to seeking dirt on Biden, Trump also asked Zelensky to help locate the computer server allegedly used by the Democratic National Committee that was hacked by Russia, suggesting that Trump is intent on relitigating the Mueller investigation into the 2016 campaign.
Although Trump has tried to pass off this episode as entirely above board, he did all this largely outside official channels. Rather than going through the normal interagency process to carry out official policy, Trump tasked his personal lawyer Rudy Giuliani and several other loyalists to do his dirty work “off the books.” The White House also engaged in an attempted cover up of this chicanery, according to the complaint.
The controversy brings to mind a famous New York Times op‐ed published a year ago. In it, an unnamed senior administration official, claiming to be a part of an internal resistance against the president, identified Trump’s “amorality” as “the root of the problem.” “Anyone who works with him,” the official explained, “knows he is not moored to any discernible first principles that guide his decision making.”
We agree. It is clear from the whistleblower complaint, the rough transcript of the Zelensky call, and Trump’s own public confessions that the president put his personal political interests above the national interest. While the revelations are shocking, they should not be surprising.
Read more at https://www.cato.org/blog/what-ukraine-tells-us-about-trump
Although Trump has tried to pass off this episode as entirely above board, he did all this largely outside official channels. Rather than going through the normal interagency process to carry out official policy, Trump tasked his personal lawyer Rudy Giuliani and several other loyalists to do his dirty work “off the books.” The White House also engaged in an attempted cover up of this chicanery, according to the complaint.
The controversy brings to mind a famous New York Times op‐ed published a year ago. In it, an unnamed senior administration official, claiming to be a part of an internal resistance against the president, identified Trump’s “amorality” as “the root of the problem.” “Anyone who works with him,” the official explained, “knows he is not moored to any discernible first principles that guide his decision making.”
We agree. It is clear from the whistleblower complaint, the rough transcript of the Zelensky call, and Trump’s own public confessions that the president put his personal political interests above the national interest. While the revelations are shocking, they should not be surprising.
Read more at https://www.cato.org/blog/what-ukraine-tells-us-about-trump
2020-03-27
Cato: Coronavirus and Regulation
Crises often illuminate “inefficient” public policies—ones with costs that outweigh their benefits. Society can tolerate (and may not even notice) them in ordinary times, allowing the policies to continue and protect and enrich special interests. But in crises, their costs become less tolerable.
Because of the coronavirus, the U.S. economy is experiencing simultaneous negative shocks to demand and supply. The demand shock is broadly understood: “social distancing” is causing people to avoid (and governments to close or curtail) mass transit, restaurants, personal services, and other businesses. The supply shock is less recognized but more troubling: quarantines and worker illness threaten to disrupt supply chains for goods that are in strong demand, including medical supplies, food, disinfectants and cleaners, and energy.
Inefficient regulations exacerbate this supply shock, limiting production and raising prices. Chris Edwards and Jeff Singer have written about some of these regulations that governments are now hastening to suspend in order to boost supply.
Cato’s policy journal Regulation examines government rules on economic activity, points out inefficient ones, and suggests reforms. In times like these, improving any regulations would be helpful; however, several articles over the last several years are especially relevant to the coronavirus crisis.
Below the jump is a list of these articles, with short summaries of each and links to the full articles. The list is divided into two sections: rules whose reform would help immediately, and rules whose reform would help in future crises. For federal and state policymakers looking for responses to the current crisis, this list is a good place to start.
Read more at https://www.cato.org/blog/coronavirus-regulation
Because of the coronavirus, the U.S. economy is experiencing simultaneous negative shocks to demand and supply. The demand shock is broadly understood: “social distancing” is causing people to avoid (and governments to close or curtail) mass transit, restaurants, personal services, and other businesses. The supply shock is less recognized but more troubling: quarantines and worker illness threaten to disrupt supply chains for goods that are in strong demand, including medical supplies, food, disinfectants and cleaners, and energy.
Inefficient regulations exacerbate this supply shock, limiting production and raising prices. Chris Edwards and Jeff Singer have written about some of these regulations that governments are now hastening to suspend in order to boost supply.
Cato’s policy journal Regulation examines government rules on economic activity, points out inefficient ones, and suggests reforms. In times like these, improving any regulations would be helpful; however, several articles over the last several years are especially relevant to the coronavirus crisis.
Below the jump is a list of these articles, with short summaries of each and links to the full articles. The list is divided into two sections: rules whose reform would help immediately, and rules whose reform would help in future crises. For federal and state policymakers looking for responses to the current crisis, this list is a good place to start.
Read more at https://www.cato.org/blog/coronavirus-regulation
Cato: Temporarily Unshackled Private Sector Responds to Demand for More Coronavirus Tests
I and others have attributed much of the initially flat‐footed response of public health officials to the coronavirus pandemic to cumbersome, inflexible, and outdated regulations controlling the development and distribution of drugs and tests.
As I pointed out in an article earlier this week, while the cumbersome Food and Drug Administration’s approval process delayed the development and distribution of coronavirus tests in the U.S. in the early days of the current pandemic, South Korea, having learned from its horrible encounter with the Middle East Respiratory Syndrome (MERS) outbreak of 2015, enacted regulatory reforms that allowed the government to give almost immediate approval of testing systems developed during a public health emergency.
In recent days the FDA has relaxed its regulatory process in order to get tests out to the public more rapidly. On March 13 Roche labs received expedited approval to distribute a test it developed that yields results ten times faster than the CDC‐developed test. On March 16, perhaps in an attempt to replicate the South Korean model, the FDA exercised its regulatory authority to effectively outsource the approval process to the states. The FDA delegated to states the authority to oversee and approve tests developed within their borders. It also announced that, under certain circumstances, manufacturers may distribute newly developed tests before the FDA grants emergency use authorization, and labs will be permitted to use them
Read more at https://www.cato.org/blog/temporarily-unshackled-private-sector-responds-demand-more-coronavirus-tests
As I pointed out in an article earlier this week, while the cumbersome Food and Drug Administration’s approval process delayed the development and distribution of coronavirus tests in the U.S. in the early days of the current pandemic, South Korea, having learned from its horrible encounter with the Middle East Respiratory Syndrome (MERS) outbreak of 2015, enacted regulatory reforms that allowed the government to give almost immediate approval of testing systems developed during a public health emergency.
In recent days the FDA has relaxed its regulatory process in order to get tests out to the public more rapidly. On March 13 Roche labs received expedited approval to distribute a test it developed that yields results ten times faster than the CDC‐developed test. On March 16, perhaps in an attempt to replicate the South Korean model, the FDA exercised its regulatory authority to effectively outsource the approval process to the states. The FDA delegated to states the authority to oversee and approve tests developed within their borders. It also announced that, under certain circumstances, manufacturers may distribute newly developed tests before the FDA grants emergency use authorization, and labs will be permitted to use them
Read more at https://www.cato.org/blog/temporarily-unshackled-private-sector-responds-demand-more-coronavirus-tests
Cato: Addressing the Gross Injustice of Acquitted Conduct Sentencing
Under our Constitution, the jury trial is supposed to be the cornerstone of criminal adjudication. The independence of citizen jurors has always been understood to be an indispensable structural check on executive, legislative, and even judicial power. And that independence has always entailed a special solicitude for jury acquittals, which are intended to have unassailable finality. Yet prosecutors and judges routinely do end‐runs around this intended finality — and thus, around the jury trial itself — through the pernicious practice of “acquitted conduct sentencing.”
“Acquitted conduct sentencing” refers to the scenario in which a judge sentences a defendant not just upon the charge for which they were convicted, but also based upon alleged conduct underlying charges for which they were acquitted. For example, in Jones v. United States, the defendants were charged with both (1) distributing small amounts of crack cocaine, and (2) a conspiracy to distribute large amounts of crack cocaine. The jury convicted on the distribution charge, but acquitted on the conspiracy charge. Common sense and basic constitutional principles would seem to dictate that the defendants be sentenced only on the basis of their distribution.
But bizarrely, the judge in that case effectively disagreed with the jury’s verdict, concluded that the defendants did engage in the charged conspiracy, and sentenced them far more harshly than would otherwise have been warranted. While the Guidelines sentencing range for the distribution charge would have “only” been 27–71 months (still a wildly excessive punishment, but beside the point here), the three defendants in Jones were ultimately sentenced to 180, 194, and 225 months — in essence, punishing them about four times more harshly solely because of alleged conduct for which they were acquitted.
Read more at https://www.cato.org/blog/addressing-gross-injustice-acquitted-conduct-sentencing
“Acquitted conduct sentencing” refers to the scenario in which a judge sentences a defendant not just upon the charge for which they were convicted, but also based upon alleged conduct underlying charges for which they were acquitted. For example, in Jones v. United States, the defendants were charged with both (1) distributing small amounts of crack cocaine, and (2) a conspiracy to distribute large amounts of crack cocaine. The jury convicted on the distribution charge, but acquitted on the conspiracy charge. Common sense and basic constitutional principles would seem to dictate that the defendants be sentenced only on the basis of their distribution.
But bizarrely, the judge in that case effectively disagreed with the jury’s verdict, concluded that the defendants did engage in the charged conspiracy, and sentenced them far more harshly than would otherwise have been warranted. While the Guidelines sentencing range for the distribution charge would have “only” been 27–71 months (still a wildly excessive punishment, but beside the point here), the three defendants in Jones were ultimately sentenced to 180, 194, and 225 months — in essence, punishing them about four times more harshly solely because of alleged conduct for which they were acquitted.
Read more at https://www.cato.org/blog/addressing-gross-injustice-acquitted-conduct-sentencing
2020-03-26
Cato: Government Failure in Coronavirus Testing
Dr. Anthony Fauci called federal coronavirus testing “a failing” and the Wall Street Journal followed up with details on CDC and FDA blunders.
The blunders appear to have stemmed from a “government knows best” mentality that has hobbled the private‐sector response. Governments tend to spin messages, erect barriers to private efforts, and act with overconfidence yet fail to deliver. These same sorts of problems exacerbated the damage in other major disasters, such as Hurricane Katrina discussed here.
With coronavirus testing, the federal government appears to have made numerous mistakes. According to the Journal article, government hindered private testing because of concerns about accuracy, yet the CDC’s own test was inaccurate. The CDC told the states its testing capacity was adequate, but that was proved wrong as demand soared. Private labs were required to use the CDC’s testing method, but that resulted in depleting the materials needed for that test. Private labs were dissuaded from pursuing testing by officials who said they had it covered. Finally, the FDA put up bureaucratic barriers to private test development, such as requiring special permissions.
Thankfully, the government has changed course and the CDC and FDA are fixing these problems. America is counting on federal health agencies to succeed in this crisis, so I hope some broader lessons are learned. Top‐down controls, misinformation, barriers to private efforts, and treating the private sector as a bit player are common mistakes in disaster response.
Read more at https://www.cato.org/blog/government-failure-coronavirus-testing
The blunders appear to have stemmed from a “government knows best” mentality that has hobbled the private‐sector response. Governments tend to spin messages, erect barriers to private efforts, and act with overconfidence yet fail to deliver. These same sorts of problems exacerbated the damage in other major disasters, such as Hurricane Katrina discussed here.
With coronavirus testing, the federal government appears to have made numerous mistakes. According to the Journal article, government hindered private testing because of concerns about accuracy, yet the CDC’s own test was inaccurate. The CDC told the states its testing capacity was adequate, but that was proved wrong as demand soared. Private labs were required to use the CDC’s testing method, but that resulted in depleting the materials needed for that test. Private labs were dissuaded from pursuing testing by officials who said they had it covered. Finally, the FDA put up bureaucratic barriers to private test development, such as requiring special permissions.
Thankfully, the government has changed course and the CDC and FDA are fixing these problems. America is counting on federal health agencies to succeed in this crisis, so I hope some broader lessons are learned. Top‐down controls, misinformation, barriers to private efforts, and treating the private sector as a bit player are common mistakes in disaster response.
Read more at https://www.cato.org/blog/government-failure-coronavirus-testing
Cato: Slashing Regulations to Combat Coronavirus
The coronavirus is battering the U.S economy as businesses cut back and close down. Unfortunately, federal policymakers are pursuing their usual misguided response to all crises—passing a big stimulus bill that will accomplish little except putting the government further into debt. After the financial crisis a decade ago, Congress passed an $800 billion stimulus and we suffered the slowest recovery since World War II.
Government spending to boost demand won’t help the economy when supply chain disruptions and safety fears are restricting production. Rather than stimulate demand, governments should repeal regulations that aren’t in place for legitimate safety reasons.
Read more at https://www.cato.org/blog/slashing-regulations-combat-coronavirus
Government spending to boost demand won’t help the economy when supply chain disruptions and safety fears are restricting production. Rather than stimulate demand, governments should repeal regulations that aren’t in place for legitimate safety reasons.
Read more at https://www.cato.org/blog/slashing-regulations-combat-coronavirus
Cato: When Is a Regulatory Taking a “Total Taking”?
Janice Smyth’s parents purchased some land in Falmouth, Massachusetts in 1975, hoping to one day build a retirement home there. Unfortunately, they died before they could commence building and the land passed to Janice. For 40 years, the land has been zoned residential and either Janice or her parents paid property taxes. Janice herself paid $70,000 to various professionals to prepare plans and applications to develop the property.
The city of Falmouth had different ideas, however. Being a coastal community, the city passed the Falmouth Wetlands Protection Bylaw in 1998, creating various “no disturbance zones” around wetlands and coastal banks. In 2008, the city strengthened its bylaw and, as a result, the only developable part of Mrs. Smyth’s land is a 115 square foot section in the northwest corner. Mrs. Smyth applied for variances and even agreed to build a house half the size of the original plan, but the city wouldn’t budge. Her property that had been worth $700,000 was assessed at $60,000, a 91.5 percent reduction in value.
Mrs. Smyth sued, alleging that the denial of the permit was a regulatory taking under the Fifth Amendment. Regulatory takings are different from the simplest form of a taking—that is, when the government just takes physical possession private property. Regulatory takings, by contrast, occur when various regulatory actions strip substantial value from a piece of property. They’re a little harder to define, and it doesn’t help that the Supreme Court’s jurisprudence on regulatory takings is muddled.
Read more at https://www.cato.org/blog/when-regulatory-taking-total-taking
The city of Falmouth had different ideas, however. Being a coastal community, the city passed the Falmouth Wetlands Protection Bylaw in 1998, creating various “no disturbance zones” around wetlands and coastal banks. In 2008, the city strengthened its bylaw and, as a result, the only developable part of Mrs. Smyth’s land is a 115 square foot section in the northwest corner. Mrs. Smyth applied for variances and even agreed to build a house half the size of the original plan, but the city wouldn’t budge. Her property that had been worth $700,000 was assessed at $60,000, a 91.5 percent reduction in value.
Mrs. Smyth sued, alleging that the denial of the permit was a regulatory taking under the Fifth Amendment. Regulatory takings are different from the simplest form of a taking—that is, when the government just takes physical possession private property. Regulatory takings, by contrast, occur when various regulatory actions strip substantial value from a piece of property. They’re a little harder to define, and it doesn’t help that the Supreme Court’s jurisprudence on regulatory takings is muddled.
Read more at https://www.cato.org/blog/when-regulatory-taking-total-taking
2020-03-25
Cato: “We Give Qualified Immunity to Just About Everybody”
On Wednesday, the U.S. Court of Appeals for the Fourth Circuit heard oral argument for a special appeal in Betton v. Belue (18-1974). The case stems from a federal civil rights lawsuit brought by Julian Betton, who was shot and paralyzed when police officers raided his home on a marijuana charge. Officer David Belue was one of several South Carolinian 15th District Drug Enforcement Unit (DEU) officers who participated in the raid, and this week’s argument was his appeal of the district court’s denial of qualified immunity for his actions.
By now, regular readers know that Cato has been leading a campaign to abolish the qualified immunity doctrine, which unlawfully shields police officers from civil liability for violating individuals’ constitutional rights. Although the oral argument indicates that Officer Belue is going to lose his appeal, the case nevertheless shows that our civil rights laws are essential to curbing the hyperviolent police conduct that can lead to unnecessary deaths and injuries.
The facts of the case, as established by the district court, state that DEU officers used a battering ram to knock-down and enter Mr. Betton’s home without identifying themselves as officers, nor were any of the officers wearing police uniforms or other obvious indications that they were law enforcement. Mr. Betton withdrew a gun from his waistband and had it by his side when he was struck by 9 of 29 rounds fired by the intruding officers. Each of the participating officers falsely claimed that they had knocked and announced their presence before breaking into the home. At least some of the officers also falsely claimed that Mr. Betton had raised his weapon and had shot at the officers before they returned fire. For the use of force from this botched raid, Officer Belue sought qualified immunity.
In the audio file posted on the U.S. Court of Appeals for the Fourth Circuit website, the empaneled judges seemed uniformly outraged by the conduct of the officers during this raid. In particular, Judge Barbara Milano Keenan lamented, “It’s so shocking what happened in this case for a two-bit marijuana deal.”
Read more at https://www.cato.org/blog/we-give-qualified-immunity-just-about-everybody
By now, regular readers know that Cato has been leading a campaign to abolish the qualified immunity doctrine, which unlawfully shields police officers from civil liability for violating individuals’ constitutional rights. Although the oral argument indicates that Officer Belue is going to lose his appeal, the case nevertheless shows that our civil rights laws are essential to curbing the hyperviolent police conduct that can lead to unnecessary deaths and injuries.
The facts of the case, as established by the district court, state that DEU officers used a battering ram to knock-down and enter Mr. Betton’s home without identifying themselves as officers, nor were any of the officers wearing police uniforms or other obvious indications that they were law enforcement. Mr. Betton withdrew a gun from his waistband and had it by his side when he was struck by 9 of 29 rounds fired by the intruding officers. Each of the participating officers falsely claimed that they had knocked and announced their presence before breaking into the home. At least some of the officers also falsely claimed that Mr. Betton had raised his weapon and had shot at the officers before they returned fire. For the use of force from this botched raid, Officer Belue sought qualified immunity.
In the audio file posted on the U.S. Court of Appeals for the Fourth Circuit website, the empaneled judges seemed uniformly outraged by the conduct of the officers during this raid. In particular, Judge Barbara Milano Keenan lamented, “It’s so shocking what happened in this case for a two-bit marijuana deal.”
Read more at https://www.cato.org/blog/we-give-qualified-immunity-just-about-everybody
2020-03-24
Cato: How About Retroceding Washington, D.C. to Maryland?
Yesterday the House Committee on Oversight and Reform held a hearing on proposals to make the District of Columbia a state, and as he has done before, Roger Pilon, founder of Cato’s Robert A. Levy Center for Constitutional Studies, testified against the idea.
Speaking for myself, what would make more sense than D.C. statehood? Retroceding the city of Washington, or at least its residential portions, to the state of Maryland. One plan, promoted by activist David Krucoff, would turn it into Douglass County, Maryland, named after the great Frederick Douglass and conveniently retaining the initials D.C.
Maryland retrocession was long dismissed as politically impractical, perhaps because of reluctance in the Old Line State to accept the deal, but those calculations might reasonably begin to shift now that the capital city has grown exceedingly prosperous (thus making it a better fiscal bet) and has politics that no longer diverge as spectacularly from those of its neighbors to the north as in the days of former Mayor Marion Barry.
Read more at https://www.cato.org/blog/how-about-retroceding-washington-dc-maryland
Speaking for myself, what would make more sense than D.C. statehood? Retroceding the city of Washington, or at least its residential portions, to the state of Maryland. One plan, promoted by activist David Krucoff, would turn it into Douglass County, Maryland, named after the great Frederick Douglass and conveniently retaining the initials D.C.
Maryland retrocession was long dismissed as politically impractical, perhaps because of reluctance in the Old Line State to accept the deal, but those calculations might reasonably begin to shift now that the capital city has grown exceedingly prosperous (thus making it a better fiscal bet) and has politics that no longer diverge as spectacularly from those of its neighbors to the north as in the days of former Mayor Marion Barry.
Read more at https://www.cato.org/blog/how-about-retroceding-washington-dc-maryland
2020-03-23
Cato: Shaking Down Drug Makers Won’t Stop IV Drug Users
On August 26 Oklahoma State Judge Thad Balkman ruled that Johnson & Johnson must pay $572 million to the state of Oklahoma for contributing to the local opioid addiction crisis. Johnson & Johnson sold two opioids: a fentanyl skin patch with the brand name Duragesic, and Nucynta,a synthetic opioid similar to tramadol but stronger.
Nucynta is not as addictive as most other synthetic and semi‐synthetic opioids and has been shown to have low levels of abuse in post‐marketing studies. Fentanyl skin patches are very difficult and inconvenient to convert for non‐medical use. The Drug Enforcement Administration claims that nearly all the fentanyl seized is so‐called “illicit fentanyl,” manufactured mostly in powdered form in clandestine labs in Asia and Mexico, and then smuggled in to the U.S., sometimes via the Postal Service.
Johnson & Johnson was also charged with contributing to the overdose crisis because it owns two subsidiaries that make the active ingredients and narcotic raw materials used by other opioid manufacturers.
Two other opioid manufacturers, Purdue Pharma and Teva Pharmaceuticals, settled with the state, but Johnson & Johnson decided to take the case to trial. Their attorneys say the company plans to appeal the decision.
Read more at https://www.cato.org/blog/shakedown-drug-makers-will-make-one-iv-drug-user-pull-needle-out-their-arm
Nucynta is not as addictive as most other synthetic and semi‐synthetic opioids and has been shown to have low levels of abuse in post‐marketing studies. Fentanyl skin patches are very difficult and inconvenient to convert for non‐medical use. The Drug Enforcement Administration claims that nearly all the fentanyl seized is so‐called “illicit fentanyl,” manufactured mostly in powdered form in clandestine labs in Asia and Mexico, and then smuggled in to the U.S., sometimes via the Postal Service.
Johnson & Johnson was also charged with contributing to the overdose crisis because it owns two subsidiaries that make the active ingredients and narcotic raw materials used by other opioid manufacturers.
Two other opioid manufacturers, Purdue Pharma and Teva Pharmaceuticals, settled with the state, but Johnson & Johnson decided to take the case to trial. Their attorneys say the company plans to appeal the decision.
Read more at https://www.cato.org/blog/shakedown-drug-makers-will-make-one-iv-drug-user-pull-needle-out-their-arm
2020-03-22
Cato: Don’t Abuse Property Rights to Build Pipelines
The demand for American energy independence and expansion of the natural gas industry have led to a marked increase in the construction of new gas pipelines. The Natural Gas Act empowers the Federal Energy Regulatory Commission to delegate to private pipeline companies the power to take private property to build these pipelines, so long as they pay the just compensation due under the Fifth Amendment. Not content with the power to begin construction after judicially authorized transfer of title, however, these companies have claimed the equivalent of government power—not mere delegated authority—by taking property before any adjudication by means of preliminary injunctions, with even fewer owner protections than statutory “quick takes” (expedited title transfers).
Karolyn and Clarence Givens had farmed their land for a decade before a pipeline company undertook to construct a 303‐mile pipeline from West Virginia to Virginia, including a segment that would cross their property. Since Clarence’s death in 2017, Karolyn has depended on rents from the farm to maintain her income. That income has been jeopardized by an early taking, forcing Karolyn to move her cattle onto a parcel occupied by a current tenant. Like other landowners in the area, Mrs. Givens has expressed concerns over the potential environmental and safety risks posed by the new pipeline. These concerns too have been vindicated as the company’s efforts have left her farm scarred by potholes, erosion, and twisted fencing.
Courts in three federal districts have granted preliminary injunctions allowing for the possession of Givens’s land before a final determination of just compensation, subject to a bond. The U.S. Court of Appeals for the Fourth Circuit upheld these injunctions on appeal.
Read more at https://www.cato.org/blog/dont-abuse-property-rights-build-pipelines
Karolyn and Clarence Givens had farmed their land for a decade before a pipeline company undertook to construct a 303‐mile pipeline from West Virginia to Virginia, including a segment that would cross their property. Since Clarence’s death in 2017, Karolyn has depended on rents from the farm to maintain her income. That income has been jeopardized by an early taking, forcing Karolyn to move her cattle onto a parcel occupied by a current tenant. Like other landowners in the area, Mrs. Givens has expressed concerns over the potential environmental and safety risks posed by the new pipeline. These concerns too have been vindicated as the company’s efforts have left her farm scarred by potholes, erosion, and twisted fencing.
Courts in three federal districts have granted preliminary injunctions allowing for the possession of Givens’s land before a final determination of just compensation, subject to a bond. The U.S. Court of Appeals for the Fourth Circuit upheld these injunctions on appeal.
Read more at https://www.cato.org/blog/dont-abuse-property-rights-build-pipelines
2020-03-21
Cato: States Lead The Way in Coronavirus Crisis With Emergency Removal of Occupational Licensing Obstacles—Why Not Make Them Permanent?
Today, Vice President Mike Pence announced that the Department of Health and Human Services is considering a national emergency order that would allow doctors throughout the country to practice across state lines. This would be a good move, and luckily, many states are already ahead of the federal government on implementing such measures.
For example, Massachusetts Governor Baker ordered the state’s Board of Registration in Nursing to implement an emergency procedure last week that would grant temporary licenses, within one day, to nurses holding out‐of‐state licenses who wish to come to Massachusetts and staff health care facilities. This move was undertaken out of concern that the COVID-19 outbreak may leave health care facilities overwhelmed with patients and understaffed by health care professionals.
For the same reason, earlier this week, the Governors of South Carolina, Texas, and Maryland ordered their state’s Boards of Medicine and Nursing to issue temporary licenses to doctors and nurses holding out‐of‐state licenses. These are good moves, and hopefully more governors will follow the example.
Read more at https://www.cato.org/blog/states-lead-way-coronavirus-crisis-emergency-removal-occupational-licensing-obstacles-why-not
For example, Massachusetts Governor Baker ordered the state’s Board of Registration in Nursing to implement an emergency procedure last week that would grant temporary licenses, within one day, to nurses holding out‐of‐state licenses who wish to come to Massachusetts and staff health care facilities. This move was undertaken out of concern that the COVID-19 outbreak may leave health care facilities overwhelmed with patients and understaffed by health care professionals.
For the same reason, earlier this week, the Governors of South Carolina, Texas, and Maryland ordered their state’s Boards of Medicine and Nursing to issue temporary licenses to doctors and nurses holding out‐of‐state licenses. These are good moves, and hopefully more governors will follow the example.
Read more at https://www.cato.org/blog/states-lead-way-coronavirus-crisis-emergency-removal-occupational-licensing-obstacles-why-not
Cato: Kamala’s Conundrum
During Wednesday night’s Democratic presidential debate, Tulsi Gabbard tore into Kamala Harris for her track record as a prosecutor in San Francisco and later as California’s Attorney General. The attack was sharp and effective, earning Gabbard an outsize share of the post-debate commentary. Its thrust was entirely fair, too, as any number of articles have demonstrated, including Lara Bazelon’s recent takedown in The New York Times titled Kamala Haris Was Not a Progressive Prosecutor.
The real significance of Gabbard’s critique, however, lies not in the proposition that Harris was a particularly unprofessional or malign prosecutor, but rather in the fact that she seems to have been a rather ordinary prosecutor who simply did her job the way most prosecutors do. And if that makes a former-prosecutor-turned-presidential-candidate look like a monster, then perhaps that says more about prosecutors in general than it does about Kamala Harris in particular.
Gabbard’s gut-punch underscores the difficult position that modern prosecutors find themselves in as the key players in a substantially immoral and increasingly indefensible criminal justice system. A near-universal blind spot of career prosecutors like Harris is their failure to appreciate the fact that law and morality can—and in our system frequently do—diverge.
Is it hypocritical for a person who has used marijuana to prosecute someone for possessing or selling it? Plainly yes, as Gabbard suggested in calling out Harris for doing precisely that. But enforcing bogus laws is not just hypocritical, it can be immoral as well. Consider the Fugitive Slave Act of 1850, a federal law that, among other things, required citizens of free states to assist in the capture and return of escaped slaves. Or eugenics laws adopted by more than half the states during the 20th century that subjected tens of thousands of law-abiding citizens, mostly young women, to forced sterilization and a childless future. Then there’s Shreveport, Louisiana’s ordinance making it a crime to wear saggy pants. Some 726 men, 96 percent of them black, were arrested under that law between its adoption in 2007 and its repeal in June of this year, after a Shreveport officer shot and killed 31-year-old Anthony Childs while trying to arrest him for wearing pants that didn’t come up to his waist. All of those laws were immoral, and participating in their enforcement constitutes a manifestly immoral act.
Read more at https://www.cato.org/blog/kamalas-conundrum
The real significance of Gabbard’s critique, however, lies not in the proposition that Harris was a particularly unprofessional or malign prosecutor, but rather in the fact that she seems to have been a rather ordinary prosecutor who simply did her job the way most prosecutors do. And if that makes a former-prosecutor-turned-presidential-candidate look like a monster, then perhaps that says more about prosecutors in general than it does about Kamala Harris in particular.
Gabbard’s gut-punch underscores the difficult position that modern prosecutors find themselves in as the key players in a substantially immoral and increasingly indefensible criminal justice system. A near-universal blind spot of career prosecutors like Harris is their failure to appreciate the fact that law and morality can—and in our system frequently do—diverge.
Is it hypocritical for a person who has used marijuana to prosecute someone for possessing or selling it? Plainly yes, as Gabbard suggested in calling out Harris for doing precisely that. But enforcing bogus laws is not just hypocritical, it can be immoral as well. Consider the Fugitive Slave Act of 1850, a federal law that, among other things, required citizens of free states to assist in the capture and return of escaped slaves. Or eugenics laws adopted by more than half the states during the 20th century that subjected tens of thousands of law-abiding citizens, mostly young women, to forced sterilization and a childless future. Then there’s Shreveport, Louisiana’s ordinance making it a crime to wear saggy pants. Some 726 men, 96 percent of them black, were arrested under that law between its adoption in 2007 and its repeal in June of this year, after a Shreveport officer shot and killed 31-year-old Anthony Childs while trying to arrest him for wearing pants that didn’t come up to his waist. All of those laws were immoral, and participating in their enforcement constitutes a manifestly immoral act.
Read more at https://www.cato.org/blog/kamalas-conundrum
2020-03-20
Cato: A Detached, Inflexible, Regulatory System Caused A Flat‐Footed Response to Coronavirus Outbreak, Disregarded Our “Right to Test”
This morning, NBC Think published my opinion column discussing the sclerotic and disorganized initial response of the federal public health system to a building coronavirus pandemic.
In my column, I point out how the Food and Drug Administration’s cumbersome regulatory process resulted in a single, government‐monopoly coronavirus test, made available in limited supply, by the Centers for Disease Control and Prevention.
This process kept the private sector and foreign‐developed tests out of the process during the crucial weeks between when the first virus was identified in December and when it started spreading throughout the U.S. Meanwhile, when the tests were initially rolled out, they were found to be defective, forcing the CDC to play catch up getting new, corrected tests out to the public.
All of this was happening while other countries were already relying on tests developed by numerous private sector companies and organizations, operating under more liberal regulatory regimes.
The World Health Organization distributed a test developed by a Berlin biotech firm to 57 countries and China had five commercial tests on the market in January. South Korea enacted a reform after suffering a devastating attack of Middle East Respiratory Syndrome (MERS) in 2015 that grants nearly immediate approval of testing systems in the event of an emergency.
While the rest of the world sought to benefit from and enable private sector initiatives, the U.S. embraced a top‐down command‐and‐control approach to the present biomedical challenge, replete with red tape and poor communication with local public health officials. This is not only tragic and unacceptable. It’s embarrassing.
Only in recent days has the FDA relaxed its stringent approval process and encouraged a rapid private sector response.
Read more at https://www.cato.org/blog/detached-inflexible-regulatory-system-caused-flat-footed-response-coronavirus-outbreak
In my column, I point out how the Food and Drug Administration’s cumbersome regulatory process resulted in a single, government‐monopoly coronavirus test, made available in limited supply, by the Centers for Disease Control and Prevention.
This process kept the private sector and foreign‐developed tests out of the process during the crucial weeks between when the first virus was identified in December and when it started spreading throughout the U.S. Meanwhile, when the tests were initially rolled out, they were found to be defective, forcing the CDC to play catch up getting new, corrected tests out to the public.
All of this was happening while other countries were already relying on tests developed by numerous private sector companies and organizations, operating under more liberal regulatory regimes.
The World Health Organization distributed a test developed by a Berlin biotech firm to 57 countries and China had five commercial tests on the market in January. South Korea enacted a reform after suffering a devastating attack of Middle East Respiratory Syndrome (MERS) in 2015 that grants nearly immediate approval of testing systems in the event of an emergency.
While the rest of the world sought to benefit from and enable private sector initiatives, the U.S. embraced a top‐down command‐and‐control approach to the present biomedical challenge, replete with red tape and poor communication with local public health officials. This is not only tragic and unacceptable. It’s embarrassing.
Only in recent days has the FDA relaxed its stringent approval process and encouraged a rapid private sector response.
Read more at https://www.cato.org/blog/detached-inflexible-regulatory-system-caused-flat-footed-response-coronavirus-outbreak
Cato: Why Would the Government Fight a $900 Judgment? To Make it Easier to Take People’s Land
Sometimes the most important court cases are the most obscure and hard to understand. Caquelin v. United States comes out of the government vigorously opposing a judgment that it owes Norma Caquelin $900 for the 180 days that she couldn’t use a relatively small part of her Iowa farmland. But the case is part of a larger and ongoing fight over the status of abandoned railroad tracks that affects thousands of property owners.
Railroad lines once extended throughout the United States. At the peak in 1916, more than 270,000 miles of track crisscrossed the country. As railroads became less popular, however, thousands of miles of rail lines were left unused. Since the 1980s, the Rails‐to‐Trails Act has converted former rail lines into hiking and biking trails. But many of those rail lines were originally easements across private property. Under common‐law doctrine, when an easement is abandoned and no longer used for the original purpose, the land “reverts” back to the property over which the easement was granted. Therefore, if the government wants to use part of an abandoned rail line for a trail, it needs to pay for the land under the Takings Clause of the Fifth Amendment.
Norma Caquelin’s great grandfather purchased a prime piece of Iowa farmland in 1892. Railroad tracks were placed on the land in 1870 and were part of the property when he purchased it. The farm was still in the family when the railroad company sought permission from the Surface Transportation Board (STB) to abandon the tracks. Under the Rails‐to‐Trails Act, after a railroad seeks permission to abandon tracks, potential trail developers can file a Notice of Interim Trail Use (NITU) to develop the tracks into a trail. After the railroad sought to abandon the tracks on Caquelin’s land, the city of Ackley and the Iowa National Heritage Foundation filed an NITU, which began a 180‐day period of negotiations with the railroad to acquire the land. In the end, no deal was reached.
Read more at https://www.cato.org/blog/why-would-government-fight-900-judgment-make-it-easier-take-peoples-land
Railroad lines once extended throughout the United States. At the peak in 1916, more than 270,000 miles of track crisscrossed the country. As railroads became less popular, however, thousands of miles of rail lines were left unused. Since the 1980s, the Rails‐to‐Trails Act has converted former rail lines into hiking and biking trails. But many of those rail lines were originally easements across private property. Under common‐law doctrine, when an easement is abandoned and no longer used for the original purpose, the land “reverts” back to the property over which the easement was granted. Therefore, if the government wants to use part of an abandoned rail line for a trail, it needs to pay for the land under the Takings Clause of the Fifth Amendment.
Norma Caquelin’s great grandfather purchased a prime piece of Iowa farmland in 1892. Railroad tracks were placed on the land in 1870 and were part of the property when he purchased it. The farm was still in the family when the railroad company sought permission from the Surface Transportation Board (STB) to abandon the tracks. Under the Rails‐to‐Trails Act, after a railroad seeks permission to abandon tracks, potential trail developers can file a Notice of Interim Trail Use (NITU) to develop the tracks into a trail. After the railroad sought to abandon the tracks on Caquelin’s land, the city of Ackley and the Iowa National Heritage Foundation filed an NITU, which began a 180‐day period of negotiations with the railroad to acquire the land. In the end, no deal was reached.
Read more at https://www.cato.org/blog/why-would-government-fight-900-judgment-make-it-easier-take-peoples-land
2020-03-19
Cato: Sunlight Exposes Dangers: Free Speech In (and After) a Pandemic
Plenty of misinformation is circulating about the COVID-19 pandemic, and that can lead to impatience about or even hostility toward free speech. Would we be better off if the government stepped in to restrict or penalize false reports? Such restrictions would not be unknown in time of epidemic. The city of Newark, N.J. recently threatened to prosecute persons who make false statements about the outbreak.
In a fine new piece, Greg Lukianoff of FIRE (Foundation for Individual Rights in Education) points out that free speech helps bolster resilience to threats like the virus, in multiple ways.
To begin with, the looming crisis with COVID-19 is far worse than otherwise because of the repressive state policies of the Chinese Communist Party (today, China announced that it is expelling reporters from the New York Times, Wall Street Journal, and Washington Post, and will not even let them work in Hong Kong.) Specifically:
Despite the inapt metaphor often applied, Lukianoff argues, an arena of free expression does not really function as a “marketplace of ideas” in which competition works to drive out peddlers of falsehood the way a market for goods tends to drive out peddlers of lamps that don’t light. In the idea business, there are people, institutions, and movements that prosper for the longest time selling total junk. Hence the observed failure of the hope for “the good ideas to ever finally defeat and drive from the earth bad ideas.” The difference is that in systems controlled by the government, like China, those who operate the control switch can cut you off from those trying to reach you with the truth. “Freedom of speech gives you a fighting chance to know the world as it really is.”
Read more at https://www.cato.org/blog/sunlight-exposes-dangers-free-speech-after-pandemic
In a fine new piece, Greg Lukianoff of FIRE (Foundation for Individual Rights in Education) points out that free speech helps bolster resilience to threats like the virus, in multiple ways.
To begin with, the looming crisis with COVID-19 is far worse than otherwise because of the repressive state policies of the Chinese Communist Party (today, China announced that it is expelling reporters from the New York Times, Wall Street Journal, and Washington Post, and will not even let them work in Hong Kong.) Specifically:
"Since at least Jan. 1, China enforced severe social media censorship of hundreds of terms relating to the virus, many of which concerned the failures of China’s leadership in controlling the outbreak. Because people in China didn’t have access to information about the virus, they didn’t know to take extra precautions, allowing it to spread faster, all the while preventing the world from preparing its response during the crucial first weeks of the outbreak.
In closed societies like China, government officials have the power to stop the free flow of information if they believe it poses a threat of any kind, either real or imagined; and in authoritarian regimes, like China, the leaders of countries often see anything that might embarrass the country in the eyes of the world as a threat. By contrast, if the initial outbreak had happened in the United States, where the government has comparatively little legitimate power to control what citizens say, it’s doubtful that the disease would’ve gone unnoticed."
Despite the inapt metaphor often applied, Lukianoff argues, an arena of free expression does not really function as a “marketplace of ideas” in which competition works to drive out peddlers of falsehood the way a market for goods tends to drive out peddlers of lamps that don’t light. In the idea business, there are people, institutions, and movements that prosper for the longest time selling total junk. Hence the observed failure of the hope for “the good ideas to ever finally defeat and drive from the earth bad ideas.” The difference is that in systems controlled by the government, like China, those who operate the control switch can cut you off from those trying to reach you with the truth. “Freedom of speech gives you a fighting chance to know the world as it really is.”
Read more at https://www.cato.org/blog/sunlight-exposes-dangers-free-speech-after-pandemic
Cato: Eleventh Circuit Grants Immunity to Officer Who Shot Child Lying on the Ground
The Eleventh Circuit’s decision in Corbitt v. Vickers, handed down last week, constitutes one of the most grotesque and indefensible applications of the qualified immunity I’ve ever seen. The case involves a claim of excessive force against Michael Vickers, a deputy sheriff in Coffee County, Georgia, who shot a ten-year-old child lying on the ground, while repeatedly attempting to shoot a pet dog that wasn’t posing any threat. Without even deciding the constitutional question, a majority of the Eleventh Circuit panel granted qualified immunity to Vickers, simply because there was no case on point with this particular set of facts.
The key facts as alleged in the complaint are as follows: Vickers and other officers were pursuing a criminal suspect, Christopher Barnett, when Barnett wandered into the backyard of Amy Corbitt (who had no relation to Barnett). At the time, one adult and six minor children were in the yard, and the officers demanded they all get on the ground. Everyone immediately complied, and the police took Barnett into custody.
But then, the family’s pet dog Bruce walked into the scene. Without provocation or any immediate threat, Vickers fired his weapon at Bruce. His first shot missed, and Bruce retreated under the home. About ten seconds later, Bruce reappeared and approached his owners, and Vickers fired again – missing once more, but this time striking Corbitt’s ten-year-old child, who was at the time still lying on the ground only 18 inches away. The bullet tore through the back of the child’s knee, causing serious injuries. The child suffered severe pain and mental trauma and has to receive ongoing care from an orthopedic surgeon.
Read more at https://www.cato.org/blog/eleventh-circuit-grants-immunity-officer-who-shot-child-lying-ground-while-trying-shoot
The key facts as alleged in the complaint are as follows: Vickers and other officers were pursuing a criminal suspect, Christopher Barnett, when Barnett wandered into the backyard of Amy Corbitt (who had no relation to Barnett). At the time, one adult and six minor children were in the yard, and the officers demanded they all get on the ground. Everyone immediately complied, and the police took Barnett into custody.
But then, the family’s pet dog Bruce walked into the scene. Without provocation or any immediate threat, Vickers fired his weapon at Bruce. His first shot missed, and Bruce retreated under the home. About ten seconds later, Bruce reappeared and approached his owners, and Vickers fired again – missing once more, but this time striking Corbitt’s ten-year-old child, who was at the time still lying on the ground only 18 inches away. The bullet tore through the back of the child’s knee, causing serious injuries. The child suffered severe pain and mental trauma and has to receive ongoing care from an orthopedic surgeon.
Read more at https://www.cato.org/blog/eleventh-circuit-grants-immunity-officer-who-shot-child-lying-ground-while-trying-shoot
2020-03-18
Cato: Certificate of Need Laws Will Impede Preparedness For The Expected Surge in COVID-19 Cases
The number of confirmed cases of COVID-19 infection in the U.S. continues to increase. All indications are that we are now just seeing the tip of the iceberg. Hospitals across the country are gearing up for an anticipated deluge of sick patients in their emergency departments, and hospital admissions that will stress—and possibly overwhelm—their intensive care units and general bed capacity. In response to the outbreak in China, a 1,000-bed isolation hospital was constructed in just 10 days—a feat that would be difficult to replicate in this country with its web of federal, state, and local regulations.
In today’s Washington Examiner, Lindsey Killen of the Mackinac Center for Public Policy and Naomi Lopez of the Goldwater Institute draw attention to the archaic Certificate of Need Laws (CON laws) that continue to exist in 38 states. These state laws, promoted by the National Health Planning and Resource Act of 1974, were intended to reduce health care costs by eliminating redundancy in health care delivery systems. They vary from state to state, but essentially require a panel to review any plans by hospitals or other health care organizations to expand, build new hospitals, or in some cases, add equipment. The review panels include incumbent health care organizations. Imagine a CON law for restaurants that empanels existing restaurant owners to review applications by persons wishing to build a new restaurant or expand the capacity or offerings of an existing one. It doesn’t take long to understand how that turns into an incumbent protection law. By the early 1980s it became clear, as in all cases of central planning, that CON laws were doing nothing to reduce health care costs and may have had the opposite effect. The federal law was repealed during the Reagan Administration.
Read more at https://www.cato.org/blog/certificate-need-laws-will-impede-preparedness-expected-surge-covid-19-cases
In today’s Washington Examiner, Lindsey Killen of the Mackinac Center for Public Policy and Naomi Lopez of the Goldwater Institute draw attention to the archaic Certificate of Need Laws (CON laws) that continue to exist in 38 states. These state laws, promoted by the National Health Planning and Resource Act of 1974, were intended to reduce health care costs by eliminating redundancy in health care delivery systems. They vary from state to state, but essentially require a panel to review any plans by hospitals or other health care organizations to expand, build new hospitals, or in some cases, add equipment. The review panels include incumbent health care organizations. Imagine a CON law for restaurants that empanels existing restaurant owners to review applications by persons wishing to build a new restaurant or expand the capacity or offerings of an existing one. It doesn’t take long to understand how that turns into an incumbent protection law. By the early 1980s it became clear, as in all cases of central planning, that CON laws were doing nothing to reduce health care costs and may have had the opposite effect. The federal law was repealed during the Reagan Administration.
Read more at https://www.cato.org/blog/certificate-need-laws-will-impede-preparedness-expected-surge-covid-19-cases
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