Cato: Searching for Monopolies

 The Justice Department announced Tuesday that it was launching an antitrust lawsuit against Google alleging that the search giant’s deals with browser and operating system developers to make Google a default search engine amounted to anticompetitive behavior. The suit bears all the hallmarks of a political stunt—an unnecessary government intervention in the online search market that has little chance of yielding any meaningful benefit to consumers.

Oddly, the suit does not target Google’s dominance in the online advertising space, which has often been the focus of critics, but Internet searches, where it seems least plausible to claim the company enjoys anything like a monopoly. Internet users have a wide variety of easily‐​accessible options for online searches: While Google is the default search engine for most browsers and mobile operating systems in the United States, users can elect to use competitors such as Yahoo, Bing, and DuckDuckGo with almost no effort, either by manually visiting those pages, or by taking a few seconds to change their default engine settings. Though Google commands the lion’s share of search traffic, it is hard to seriously claim this is because consumers lack for choices—which would normally be a precondition of claiming a company enjoys a “monopoly.”

Just as Google itself rapidly displaced many older search engines like AltaVista and AskJeeves—which had become defaults for users in the 1990s—the company would quickly lose its dominant position if most users found that competitors yielded more relevant results, just as users routinely download and install apps that provide superior functionality to those already installed on their devices. Moreover, Google’s arrangements with operating system and browser developers are not materially different from, or more “anticompetitive” than, analogous deals for prominent product placement in stores familiar from brick‐​and‐​mortar markets. Indeed, those arrangements may produce consumer benefits by subsidizing the production of software that is free to the user. Nor is it credible to claim, as DOJ does that Google has established a stranglehold on search defaults by dint of its deep pockets: Its primary rival in competitive bids to be “default search engine” is the not‐​exactly‐​penurious Microsoft.

Read more at https://www.cato.org/blog/searching-monopolies

Cato: Supreme Court Should Review Ninth Circuit Error Regarding Alien Tort Statute

The Alien Tort Statute, passed as part of the Judiciary Act of 1789, gives federal courts the power to hear cases brought by foreigners who allege “a violation of the law of nations or a treaty of the United States.” The Supreme Court in Kiobel v. Royal Dutch Petroleum (2013) held that this law presumptively doesn’t apply to violations committed abroad—though that presumption can be overcome when claims “touch and concern the territory of the United States … with sufficient force.”

Then in Jesner v. Arab Bank, PLC (2018), the Court ruled that foreign corporations cannot be sued under the ATS because international norms about corporate liability are not settled. A lawsuit against a U.S. corporation based on actions taken abroad would thus seem to be a long shot, but the U.S. Court of Appeals for the Ninth Circuit has obliged with just that eventuality, in a case over atrocities committed in Côte d’Ivoire.

The underlying crimes around which this controversy revolves make up part of an ongoing series of human rights abuses in West Africa. The use of child slavery has garnered international attention and focused scrutiny on the cocoa trade from which abusive plantations draw their revenue. Nestlé, known for its chocolate among other foods and beverages, has condemned the modern slave trade and joined accords aimed at eliminating human trafficking in the region. But Nestlé U.S.A. and its Swiss parent find themselves in a long‐​running suit over the enslavement of a number of Malians on Ivorian plantations, on the basis of the corporations’ alleged purchase of cocoa on farms that used slaves.

Read more at https://www.cato.org/blog/supreme-court-should-review-ninth-circuit-error-regarding-alien-tort-statute 

Cato: Are Ideological Differences the Only Reason Republicans and Democrats Can’t Agree?

 Political polarization is rapidly becoming one of the greatest public issues of our time. As the Pew Research Center has found, fewer Americans are taking centrist views while more are shifting toward the extremes. The consequences are dire: the Pew Research Center found that 73% of Americans say Republicans and Democrats “not only disagree over plans and policies, but also cannot agree on basic facts.” And animus has turned personal; one PRRI study found that 35% of Republicans and 45% of Democrats would be very unhappy if their child married someone from the opposing party.

What accounts for this polarization? Are Americans just more divided over policies, like tax rates, abortion, and immigration? Or are we living in a more tribal era in which political attitudes are driven by partisan loyalties and animus toward opponents—regardless of the policy?

Some may recall when the Jimmy Kimmel show asked Hillary Clinton voters in 2016 if they supported a plan to cut corporate and estate taxes while telling them the plan was Clinton’s idea. The interviewees dutifully agreed, only to be told later that it was actually proposed by Trump rather than Clinton. Kimmel concluded, “It seems to me most people pick a candidate and go along with whatever that candidate says.”

Read more at https://www.cato.org/blog/are-ideological-differences-only-reason-republicans-democrats-cant-agree

Cato: You Can’t Copyright the Law

 Georgia gives the legal resource database Lexis an exclusive copyright to publish the Official Code of Georgia Annotated (OCGA), thus restricting its citizens’ ability to access and understand the laws that bind them. Pub​lic​.Resource​.org (PRO) is a nonprofit dedicated to improving the public’s access to government records and primary legal materials. PRO purchased all 186 printed volumes of the OCGA, scanned them, and uploaded them to their website to be freely accessed. The Georgia Code Revision Commission sent letters to PRO demanding that they take the OCGA down, but PRO refused, prompting a lawsuit.

PRO argued that the general rule that government codes and judicial opinions can’t be copyrighted should also apply to annotated codes. They won in the Eleventh Circuit, but Georgia appealed to the Supreme Court and the Court agreed to hear the case. Cato, joined by the Center for Democracy and Technology, has filed a brief in support of Pub​lic​.Resource​.org. We argue that the logic behind copyright does not apply to codes of law that bind the public, even if the code has annotations.

An exclusive copyright over the product of normal legislative deliberation is a violation of the public’s trust. The people fund the government, including legislators’ salaries, in exchange for the enactment of laws designed to ensure public safety and order. Lawmakers certainly do not need copyright protection to incentivize creating laws. Georgia argues that the annotations—various cross references, commentaries, case notations, editor’s notes, excerpts from law review articles, etc.—are deserving of copyright, and Lexis does provide free access to the unannotated Georgia Code. But the annotations are vital to understanding the law and are created by the Code Revision Commission. Like the code itself, the annotations are, in the words of the Eleventh Circuit, “an exercise of sovereign power.”

Read more at https://www.cato.org/blog/you-cant-copyright-law

Cato: Get a Warrant

 Last week, the Supreme Court granted cert in a Fourth Amendment case, Lange v. California, that asks whether a police officer in "hot pursuit" of a suspected misdemeanant must get a warrant before entering the suspect's home. That question turns out to be momentous for several reasons, two of which are obvious and one of which is less so but may be even more profound.

First, the vast majority of arrests in this country are for misdemeanors. Citing our friend Alexandra Natapoff, Lange's cert petition notes that "[r]oughly thirteen million misdemeanor cases are filed each year, outnumbering felonies by four to one." Indeed, as Prof. Natapoff documents in her wonderful book, Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal and in this interview, "[t]he misdemeanor system represents 80 percent of the state criminal dockets in this country." Thus, contrary to Justice Souter's misperception in one of the Supeme Court's most important misdemeanor cases, Atwater v. City of Lago, we certainly are "confronting . . . an epidemic of unnecessary minor-offense arrests." Moreover, as Prof. Natapoff and others have documented, arrests for even minor offenses can have devestating effects on people's lives. Among other things, misdemeanors "are moneymakers for local jurisdictions," and the fines, court fees, and other monetary penalties they impose can result in crushing debt and a cascading financial crisis from which it becomes impossible for many people to escape. Besides the direct financial implications, a misdemeanor conviction can have serious collateral consequences, including loss of employement, housing, and eligibility for various government benefits. In short, contrary to what you—or, perhaps more to the point, many judges—might think, a misdemeanor arrest is a really big deal.

Second, allowing police officers to storm into people's houses unexpectedly is a terrible idea, as at least some judges have understood for several hundred years. As recounted in an amicus brief filed by the National Assocation of Criminal Defense Lawyers (NACDL), a 1757 case from England involved “a murder conviction of a man who reacted to a peace officer’s entry into his friend’s workshop by striking the officer dead with an ax." As the judge in that case recognized, occupants must be told whether an officer barging into a home or office "cometh as not as a mere trespasser, but claiming to act under proper authority." Fast forward two centuries to a case where an American plainclothes detective pried open the window of a rooming house to investigate a suspicious noise, startling the landlady, and we see Justice Robert Jackson presciently warning that “[m]any home-owners in this crime-beset city doubtless are armed. When a woman sees a strange man, in plain clothes, prying up her bedroom window and climbing in, her natural impulse would be to shoot [him].” If anything, this concern has only grown more acute as police have become more militarized and more people have chosen to exercise their constitutional right to own a gun at home for self defense. Underscoring that point, the NACDL's amicus brief describes a number of hairraising incidents where police barged into a home without a warrant in "hot pursuit" of supsected misdemeanants—including a young man who relieved himself on a corner of his girlfriend's outdoor patio—with sometimes tragic results. In short, there have always been compelling reasons to be extraordinarily careful about allowing armed agents of the state to come storming into people's homes unannounced, even if they conflict with the government's strong preference for volume and efficiency in the administration of criminal justice.

Read more at https://www.cato.org/blog/get-warrant

Cato: Another Unnecessary Police Killing

 Thanks to the work of the Washington Post, we know that American police fatally shoot roughly 1,000 people every year. Many of these people are armed, some are certainly dangerous, and most of the shootings will be found to be “justified.” Justified can mean many things, particularly because most state laws and federal judicial precedent give police officers extraordinary discretion to use lethal force.

Indeed, the legal standard for an officer to use lethal force—nicknamed the “reasonably scared cop rule” by defense attorney Scott Greenfield—is so broad that almost every unjustified shooting must be plainly egregious. Atatiana Jefferson, 28, was killed in one such unjustified shooting this past weekend in Fort Worth, Texas.

Fort Worth police officers responded to a call for service at Jefferson’s home because a neighbor reported that the door to the house was open, and that was unusual for late night/early morning hours. One of the officers, Aaron Dean, walked around the house to investigate the area and do a “welfare check,” a police term for making sure everything is OK.

The body camera footage released by Fort Worth Police Department shows the moment when Dean suddenly turns toward the window, shouted “Put your hands up, show me your hands!,” and then shoots through the window of the home. Jefferson was killed in front of her eight-year-old nephew, with whom she had just been playing video games.

Read more at https://www.cato.org/blog/another-unnecessary-police-killing

Cato: Judge: Seattle’s Aid To Protest Zone Might Have Been a Taking

 Ordinarily you can’t sue the government for failing to protect you from private criminal actors. But a federal judge has allowed a suit to go forward filed by business owners against the city of Seattle over injuries done by far‐​left activists who seized 16 blocks this June and proclaimed a weeks‐​long “autonomous zone” (CHOP or CHAZ).

Law professor Ilya Somin writes that he initially approached the case with skepticism, but was surprised to find it stronger than expected. The reason: the plaintiffs argue that the city did not merely stand by passively, but assisted the occupiers by letting them use city property such as street barriers which hindered the plaintiffs from enjoying free access to their businesses and homes. Because the city government had taken many affirmative steps to assist the occupation, as contrasted with omissions, the episode could be interpreted as a temporary taking of property for which compensation is due. (The judge also allowed two due process claims to proceed.) 

Read more at https://www.cato.org/blog/judge-seattles-aid-protest-zone-might-have-been-taking

Cato: Supreme Court Should Decide the “Expressive Wedding Vendor” Issue Once and for All

 Arlene’s Flowers, run by Barronelle Stutzman in the southeastern Washington town of Richland, designs and sells floral arrangements for many occasions in Richland, Washington. Mrs. Stutzman, for religious reasons, believes that marriage is a spiritual union between a man and a woman and doesn’t create floral arrangements same‐​sex weddings. This case began when long‐​time clients Robert Ingersoll and Curt Freed asked Mrs. Stutzman to create the floral arrangements for their wedding. She respectfully declined and referred them to several nearby florists.

To be clear, Mrs. Stutzman serves everyone regardless of sexual orientation or any other category. For nearly a decade, Messrs. Ingersoll and Freed used Mrs. Stutzman for their anniversary and Valentine’s Day needs, for example. Nevertheless, Mrs. Stutzman’s conscience won’t allow her to provide flowers to celebrate a same‐​sex marriage, even for long‐​time friends and customers.

Mr. Freed’s Facebook posts expressing disappointment at the situation gained media attention, which caused the couple to receive enough free floral arrangement offers to have 20 weddings. Additionally, the Washington attorney general personally reached out to the couple. Both the couple and the state ended up suing Mrs. Stutzman for violating Washington’s antidiscrimination law.

The trial court ruled against Arlene’s Flowers and the state supreme court affirmed, holding that floral design did not constitute First Amendment‐​protected artistic expression. The U.S. Supreme Court remanded the case for reconsideration in the light of its 2018 ruling in a similar context (except a baker instead of a florist) in Masterpiece Cakeshop v. Colorado Civil Rights Commission that state officials displayed anti‐​religious animus and thus could not enforce their law. In the absence of similar anti‐​religious red flags, it’s probably not surprising that the state supreme court reinstated its previous opinion almost verbatim.

Read more at https://www.cato.org/blog/supreme-court-should-decide-expressive-wedding-vendor-issue-once-all

Cato: SCOTUS Decides That Inhumane Treatment of a Prisoner Violated “Clearly Established Law”

 Qualified immunity is a judicial doctrine that protects public officials from liability when they violate people’s constitutional rights, unless those rights were “clearly established” at the time of their violation. Since the Supreme Court invented this “clearly established law” standard in 1982, it has issued 32 qualified immunity decisions, and only twice found that a defendant’s conduct actually violated “clearly established law” (and these two cases were decided nearly two decades ago). Thus, the practical effect of the Court’s decisions has been to make “clearly established law” more and more difficult for plaintiffs to show; today, many lower courts effectively require plaintiffs to find a prior case with nearly identical facts before they will hold that the law was clearly established. 

But this morning, for the first time in sixteen years, the Supreme Court issued a qualified immunity decision in which it held that the defendants’ actions violated “clearly established law.” The case is Taylor v. Riojas, in which the Fifth Circuit upheld a grant of immunity to prison officials who subjected Trent Taylor to horrific and inhumane prison conditions. Taylor was kept for several days in a cell that was covered floor to ceiling with the feces of the previous occupant, and where feces was packed into the water faucets, preventing him from drinking. He was then moved to a second cell, which was kept at freezing temperatures, and where a clogged drain on the floor caused raw sewage to flood the cell, forcing him to sleep in sewage. The prison officials were well aware of these conditions, and at one point laughed that Taylor was “going to have a long weekend.” Notwithstanding this obviously inhumane treatment, the Fifth Circuit granted immunity to these officials, because while “the law was clear that prisoners couldn’t be housed in cells teeming with human waste for months on end,” it had not previously held that confinement in human waste for six days violated the Constitution.

Read more at https://www.cato.org/blog/scotus-decides-inhuman-treatment-prisoner-violated-clearly-established-law

Cato: Supreme Court May Be Preparing to Consider Several Major Cases on Qualified Immunity

 For the last couple of years, the Cato Institute, along with other public interest groups, academics, and lower court judges from across the ideological spectrum, has been urging the Supreme Court to reconsider the doctrine of qualified immunity. This atextual, ahistorical doctrine — which shields public officials from liability, even when they break the law — was essentially invented out of whole cloth by the Supreme Court in 1967. And the modern version of the doctrine, in addition to being unjust and unlawful, has proven incapable of consistent, principled application in the lower courts. There is thus every reason for the Court to reconsider its precedent on this subject, as many of the Justices themselves have already suggested. And now, with several major qualified immunity cases on the horizon, it appears the Court may finally be preparing to take up the matter.

The main reason for my suspicion here has to do with recent developments in Baxter v. Bracey. This is the case where the Sixth Circuit granted qualified immunity to two officers who deployed a police dog against a suspect who had already surrendered and was sitting on the ground with his hands up. A prior case had held that it was unlawful to use a police dog without warning against an unarmed suspect laying on the ground with his hands at his sides. But despite the apparent similarity, the Sixth Circuit found this precedent insufficient to overcome qualified immunity because “Baxter does not point us to any case law suggesting that raising his hands, on its own, is enough to put [the defendant] on notice that a canine apprehension was unlawful in these circumstances” (emphasis added). In other words, prior case law holding unlawful the use of police dogs against non‐​threatening suspects who surrendered by laying on the ground did not clearly establish that it was unlawful to deploy police dogs against non‐​threatening suspects who surrendered by sitting on the ground with their hands up.

The ACLU filed a cert petition on behalf of Mr. Baxter, asking the Supreme Court to consider whether “the judge‐​made doctrine of qualified immunity” should “be narrowed or abolished.” The Cato Institute filed a brief in support of this petition, as did a vast, cross‐​ideological array of other public interest groups and leading scholars of qualified immunity. The petition was originally set to be considered at the Supreme Court’s long conference on October 1st — that is, the first conference of the term, where the Justices resolve a large number of petitions that were submitted over the summer recess. Emma Andersson (one of the ACLU attorneys on the case) and I wrote a joint op‐​ed discussing the case back in July, and Law360 recently ran a detailed story on Baxter, asking “Could A Dog Bite Bring An End To Qualified Immunity?” All of us were holding our breath as the Supreme Court prepared to start its new term…

Read more at https://www.cato.org/blog/supreme-court-may-be-preparing-consider-several-major-cases-qualified-immunity

Cato: Biden Appoints Congestion Supporters

 Phillip Washington, the transit executive who thinks Los Angeles isn’t congested enough, has been named the leader of Biden’s transition team in charge of the Department of Transportation and Amtrak. Washington is the CEO of Los Angeles Metro, the main transit agency in Los Angeles County.

A year ago, as Los Angeles bus ridership was collapsing due to LA Metro’s insistence on building costly light rail, Washington blamed the loss of bus riders instead on Los Angeles’ famously uncongested freeways. “It’s too easy to drive in this city,” he told the Wall Street Journal. To restore bus ridership, the city has to “make driving harder.”

“Sometimes you have to tell people what’s good for them,” Washington also told the Journal. He will clearly fit right in to Biden’s top‐​down view of how the world should work. Washington’s support for obsolete light‐​rail transit will go hand‐​in‐​hand with Biden’s support for obsolete intercity passenger trains.

Read more at https://www.cato.org/blog/biden-appoints-congestion-supporter

Cato: Stop San Diego’s Homewrecking

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

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

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

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

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

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

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

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

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