Cato: An Epidemic of Red Tape

 Among the many lessons of the COVID-19 pandemic is how cumbersome one‐​size‐​fits‐​all regulations, administered by an impersonal bureaucracy, hamper a rapid and flexible response to an evolving public health emergency. The U.S. Navy Medical Corps provides us with the most recent example.

On March 30, the naval hospital ship U.S.N.S. Comfort arrived in New York harbor, with 1,000 hospital beds and 1.200 staff, ready to assist in the management of the epidemic which has taken a heavy toll on New York metropolitan area inhabitants. Yet, as of April 3, only 20 patients were being treated on the hospital ship. Three days earlier, the 1,000 bed U.S.N.S. Mercy arrived in Los Angeles, and as of April 2 treated 15 patients.

Both hospital ships were intended to take on and treat patients who are not infected with COVID-19, which serves the dual purpose of sheltering such patients from contagious COVID-19 patients in metro area hospitals while freeing up space in those hospitals for more COVID-19 patients.

But why are there so few patients aboard these hospital ships, considering the ships’ patient capacity and the size of the metropolitan areas they are serving? The answer lies in military protocols and bureaucratic rules that stand in the way.

Patients are not allowed to be directly admitted to the hospital ships and ambulances are not permitted to take them there. They must first be taken to a civilian hospital for evaluation and be tested for the virus before being transferred to the ship. Of course, this requirement does nothing to unburden crowded emergency rooms and their overworked staff.

Read more at https://www.cato.org/blog/epidemic-red-tape

Cato: Governments Should Rely More on the WTO in the Fight Against the Coronavirus

 Yet another sign of the marginalization of the World Trade Organization is the omission of any mention of it in the recent G20 statement on COVID-19. At a time when more international cooperation is urgently needed to control and conquer the spreading coronavirus pandemic, including in trade, the international institution established to oversee trade is increasingly shunted to the sidelines.

The G20 leaders acknowledged the importance of trade to addressing the pandemic in their statement at the conclusion of their emergency video conference on March 25. They promised to use “all available policy tools to minimize the economic and social damage from the pandemic.” Shockingly, however, they neglected to refer by name to the only global institutional tool they have for achieving that goal in trade. Six other international institutions were specifically cited – but not the WTO.

Going into this global fight for survival, the WTO was already badly damaged by the corrosive combination of Trumpian unilateralism and intensifying global economic nationalism. Now, because of the coronavirus, all WTO meetings have been suspended until at least the end of April. Those who see the WTO as necessarily central to world trade are left wondering what its role is now and will be going forward.

Among trade experts, ideas abound for using the WTO to help fight the pandemic. At the top of the list is the pressing need to roll back and refrain from export bans on medicines and medical supplies. At last count, 35 countries have imposed such bans. While these measures, depending on how they are applied, may be legal under WTO rules, they are inconsistent with the G20 aim to “coordinate responses in ways that avoid unnecessary interference with international traffic and trade.” They prevent limited drugs and supplies from going to where they are most needed to conduct effective coordinated global combat against the global virus, especially in the poorest countries where the outbreak may ultimately be the worst.

Read more at https://www.cato.org/blog/governments-should-rely-more-wto-fight-against-coronavirus

Cato: How the Telephone Consumer Protection Act Unconstitutionally Privileges Government Speech

 In this time of crisis, the Supreme Court still soldiers on … somewhat. The Court cancelled its March oral argument sitting and will likely cancel the April one too. But petitions are still being filed–deadlines have been extended–and there are still cases to be decided. 

One of those cases concerns the Telephone Consumer Protection Act, a statute that is appreciated by many because it helps stop robocalls. The law makes businesses who violate the many consumer‐​oriented provisions liable to private lawsuit. This is no idle threat, either; in the last ten years 21 TCPA cases have settled for over $10 million. It is also a favorite of states’ attorneys general, who earn popularity for targeting the sources of unwanted calls.

The 1991 law was all‐​encompassing. Auto‐​dialers and pre‐​recorded calls were prohibited for political activists, local businesses, debt collectors, and charities alike. Unless a consumer has released their number willingly, they could not be called by such annoying methods. But in 2015, Congress passed a budget that contained an amendment exempting from the statute any calls made “solely to collect a debt owed to or guaranteed by the United States.”

Read more at https://www.cato.org/blog/how-telephone-consumer-protection-act-unconstitutionally-privileges-government-speech

Cato: The Census Is Too Intrusive

 Signs have popped up all over my neighborhood in Arlington, Virginia, urging us to respond to the census – so that the 8th wealthiest county in America won’t miss out on funding collected from taxpayers across the country.

Census Bureau materials stress to local officials that census data will help them get “their fair share of funding” from hundreds of federal programs. Obviously this is a zero‐​sum game. If my neighbors and I all fill out the form, then you and your neighbors will get less from the common federal trough. But at least we’ll be getting our “fair share.”

But where does the government get the authority to ask me my race, my age, and whether I have a mortgage? In fact, the Constitution authorizes the federal government to make an “actual enumeration” of the people in order to apportion seats in the House of Representatives. That’s all. Not to define and count us by race. Not to ask whether we’re homeowners or renters, or involved in a same‐​sex marriage or partnership. Just to ask how many people live here, so they can apportion congressional seats.

I’m not interested in getting taxpayers around the country to pay for roads and schools and “many other programs” in my community. All the government needs to know from me is how many people live in my house.

Through the American Community Survey, the Census Bureau asks 3.5 million Americans a year many more questions, including your citizenship, your income, your marital history, whether you’re on food stamps, and how many bedrooms you have. All very interesting to sociologists and planners, of course, but hardly what Madison anticipated when he and his colleagues provided for an “actual enumeration” of the constituents of Congress.

The bureau explains that this information “can be used in planning and funding government programs” and “to enforce laws, regulations, and policies.”

Read more at https://www.cato.org/blog/census-too-intrusive

Cato: Health Care Scope of Practice Laws Reveal Another Weakness in Response to COVID-19 Pandemic

 On March 24 Arizona Governor Doug Ducey issued an executive order allowing CRNA’s (Certified Registered Nurse Anesthetists) to practice independently of physicians or surgeons, thus adding needed personnel to the health care work force during this public health emergency. Guidelines issued by the Centers for Medicare and Medicaid Services state that nurse anesthetists should be “supervised” by a physician, thus preventing these well‐​trained specialized nurses from providing anesthesia independently while freeing up physician anesthesiologists so more patients can receive care. Because these CMS guidelines are listed as “optional,” the Governor decided that Arizona will opt out. The press release from the Governor’s office stated:

"“Arizona’s hospitals and medical professionals need all the help and resources they can get right now,” said Governor Ducey. “I am confident that this exemption will enhance access to high quality care, provide additional options to our rural hospitals, and is in the best interest of the citizens of Arizona.”"

Arizona joined 17 other states that have already opted out of these federal guidelines.

As we are seeing so frequently as the COVID-19 pandemic unfolds, regulations on the state and federal level stand in the way of needed care, equipment, drugs, and tests. In our federal system states have power over occupational licensing and determining the scope of work in which a licensee may engage. In the matter of the licensed health care professions, this is referred to as “scope of practice.”

For decades state legislators have witnessed turf battles among the various health care professions. Nurse practitioners and physicians’ assistants, for example, seek to practice independently of physicians and to expand their scope of practice to meet their level of training. This is usually met with resistance from medical doctors who argue NPs and PAs lack the necessary training to safely provide care beyond a narrowly‐​defined scope. The degree to which the scope of practice of NPs and PAs has been widened varies from state to state. Broadening their scope would help address the current health care crisis. But once the crisis passes, maintaining the broadened scope would give people more health care options and access, particularly in underserved rural areas.

Similarly, state capitals witness battles between optometrists, who seek to expand their scope to include prescriptive authority and simple surgical authority, and ophthalmologists who believe such expansions are dangerous.

Read more at https://www.cato.org/blog/health-care-scope-practice-laws-reveal-another-weakness-response-covid-19-pandemic

Cato: Congress Set to Pass $2.2 Trillion Coronavirus Bill

 The Senate has passed a $2.2 trillion aid bill in response to the coronavirus crisis. The bill is expected to be passed quickly by the House and signed by the president.

Members of Congress stuffed a vast array of subsidies in the 880‐​page legislation, ranging from $454 billion for big businesses to $25 million for the Kennedy Center in Washington, D.C.

Here are the main spending buckets:

• $454 billion to finance loans to businesses and the states.
• $46 billion in loans and grants to airlines and other specified businesses.
• $377 billion in loans and grants to small businesses.
• $290 billion in stimulus checks for all individuals below an income cutoff.
• $260 billion in expanded unemployment benefits.
• $175 billion in grants to state and local governments.
• $180 billion in health‐​related spending.
• $154 billion for education, agriculture, food stamps, housing, and other programs.
• $290 billion in business and individual tax cuts.
  

Read more at https://www.cato.org/blog/congress-set-pass-22-trillion-coronavirus-bill

Cato: Technology Makes Social Distancing Easier

 Not long ago, many people decried screen time as an epidemic. But now that humanity finds itself in the midst of an actual disease pandemic, screens are proving to be a boon to the species. Progress in digital technology has perhaps never been more evident than in this moment of widespread social distancing measures.

Without today’s technology, “social distancing” would have meant isolation. From work, education and errands to leisure activities and socializing, technology is making “social distancing” possible with minimal sacrifice compared to what previous generations would have had to endure to achieve the same degree of physical separation.

It is of course true that looking at screens for prolonged periods has its downsides and that moderation is important. But the use of technology to help people stay connected and keep society running smoothly during this pandemic is turning the narrative that digital technology threatens human interaction and happiness upside‐​down.

Widespread reports have emerged of virtual dinner parties (warranting coverage in The Washington Post) and other virtual gatherings. It has become increasingly clear that social distancing should more aptly be called physical distancing — because those practicing it can still be social.

As bars temporarily shut down to prevent potential virus transmission, virtual cocktail parties and happy hours are taking off, meriting recent articles in The New York Times and The Wall Street Journal covering the phenomenon. Happy hour gatherings, those fixtures of many young professionals’ lives, have transformed into digital social events involving split‐​screen video chats between participants as they each raise a glass from their respective locations.

Read more at https://www.cato.org/blog/technology-makes-social-distancing-easier

Cato: Expanding Pharmacists’ Scope of Practice Can Save the Lives of Children

 Yesterday Secretary of Health and Human Services Alex Azar used his emergency powers to override the restrictions that 22 states place on pharmacists vaccinating children over age 3.

As I noted in a previous post, a dangerous side effect of the COVID-19 pandemic is that many parents have not been bringing their children to the doctor’s office for their scheduled vaccinations. There are multiple contributing causes. In some cases, parents may be concerned about the expense. In others, they may be concerned that they or their children may get exposed to the virus. The timing of certain immunizations in children can be crucial and, for that reason, pediatricians and primary care practitioners have taken steps to provide immunizations in a safe, socially‐​distanced environment.

Despite an encouraging report from the Centers for Disease Control and Prevention that, as COVID-19 cases have declined in New York City, childhood vaccinations have increased, a rebound in vaccinations has not yet been detected in other parts of the country.

Read more at https://www.cato.org/blog/expanding-pharmacists-scope-practice-can-save-lives-children

Cato: Libertarianism and the Coronavirus Pandemic

 In recent days, there has been snark from some quarters about the current crisis somehow catching libertarians flat‐​footed. The argument goes that the need for a big government response disproves a political ideology that is often, though in somewhat oversimplified fashion, summarized as favoring “small government.” A better description would be a government limited in scope but sufficient to meet that scope.

Libertarianism, properly understood, encompasses certain core functions as the proper role of government. It is not the libertarian view that government should be ineffective at protecting individual rights or dysfunctionally paralyzed in the face of a massive threat to people’s lives. Government has a role to play in responding to the pandemic in much the same way it is the government’s job to prosecute murderers or defend the country from invasion.

At the same time, libertarian principles and insights can provide some guideposts for how to respond in this unprecedented global emergency.

One thing to keep in mind is that some limits on government power are even more crucial now. Emergency powers should be limited in duration and limited to directly addressing the present situation based on the facts as best we know them. Such policy responses shouldn’t be larded up with a pre‐​existing wish list of unrelated concerns. It is essential to preserve constitutional liberal democracy and resist excessive long‐​term concentration of power in the executive.

Social distancing measures should rely on voluntary compliance to the greatest degree possible, and most people have been voluntarily complying. Even when enforcement is necessary, simply breaking up gatherings without citation or prosecution is possible and preferable in many cases. A heavy‐​handed reliance on coercive enforcement might not only be unnecessary in some regards, it can also backfire by sparking protest non‐​compliance, and it might also be redundant to all the other measures already in place. With so much shut down, the only place most people have to go is to one of the essential businesses left open such as grocery stores. You don’t need to order people to stay home—except for the list of exceptions—if they already have almost nowhere to go that isn’t on that list of exceptions. For that reason, some states have so far rejected compulsory “stay at home” or “shelter in place” orders. There is no need to fuel further panic or distract police from their more important duties to worry about safe and benign activities like taking the family dog for a walk.

At the same time, many jurisdictions have moved to suspend petty arrests altogether, mostly for victimless crimes, in an effort to reduce jail populations. Also under consideration are proposals to release many of those individuals currently in jail awaiting trial for minor offenses. This is a welcome shift that should prompt us to reconsider the necessity of some of these laws, many of which have long been the target of libertarian ire.

Read more at https://www.cato.org/blog/libertarianism-coronavirus-pandemic

Cato: When the Government Destroys All but a Smidge of Your Property Value, It Should Pay Just Compensation

 Developer Bridge Aina Le‘a, LLC, purchased a huge swath of land in Hawaii on which it planned to build hundreds of new homes. Before the company ever got the chance, however, the Hawaii Land Use Commission re‐​designated the land for agricultural use, stopping residential development dead in its tracks. Bridge Aina Le‘a sued to get its money’s worth and has asserted its constitutional right against uncompensated takings of property.

The land in question, over a thousand acres “of largely vacant and barren, rocky flow land,” could hardly support agricultural use. But existing Supreme Court doctrine could be read to defeat a takings claim in this case. This is despite the Land Use Commission’s subversion of Bridge Aina Le‘a’s “distinct investment‐​backed expectations”—a crucial factor in determining whether a regulation “goes too far” (as Justice Oliver Wendell Holmes put it in 1922), violating the Fifth Amendment’s Takings Clause. That’s because in Penn Central Transportation Co. v. New York City (1978), the Court held that whether a regulation effects a taking in most cases involves “essentially ad hoc, factual inquiries.”

For over four decades, courts and developers have been left to ponder what these notoriously open‐​ended words mean. In Lucas v. South Carolina Coastal Council (1992), the Court clarified that those words were not meant to apply to regulations that resulted in a total loss of a property’s value or usefulness; that losses of that magnitude, once proved, effect per se takings of the property (regardless of whether the owner retains physical possession of the now‐​valueless or useless land). The problem with the Lucas doctrine is that even a 99% value‐​loss will not cut it—at least not for most courts. And, to add insult to injury, Lucas’s “usefulness” factor has fallen nearly completely out of vogue.

Read more at https://www.cato.org/blog/when-government-destroys-all-smidge-property-value-it-should-pay-just-compensation

Cato: COVID-19 Leads to Arrest Reductions

 As COVID-19 spreads through the U.S., cities across the country are halting arrests for nonviolent offenses and releasing low‐​risk prisoners in efforts to reduce jail crowding and prevent the spread of the disease. Prosecutors in Philadelphia, Baltimore, Los Angeles County, Portland, and Nashville – along with many other cities – are issuing statements that arrests and prosecutions for low‐​level, nonviolent crimes (including drug offenses, theft, prostitution, traffic offenses, etc.) will stop.

Over 30 prosecutors issued a joint statement calling for public health officials and community leaders to:

Adopt “cite and release policies” for offenses which pose no immediate physical threat to the community, including simple possession of controlled substances.

• Release all individuals who are being detained solely because they can’t afford cash bail, unless they pose a serious risk to public safety.

• Reduce the prison population to minimize sharing of cells and ensure that there are sufficient medical quarantine beds, and enough staff, to promote the health and safety of staff, those incarcerated, and visitors

• Identify and release the following people immediately, unless doing so would pose a serious risk to the physical safety of the community:

○ Individuals who are elderly;

○ Populations that the CDC has classified as vulnerable (those with asthma, cancer, heart disease, lung disease, and diabetes);

○ People in local jails who are within 6 months of completing their sentence; and

○ People incarcerated due to technical violations of probation and parole.

• Put in place procedures and advocate for reforms that enable past lengthy sentences to be revisited and support release for those individuals who can safely return to the community

Read more at https://www.cato.org/blog/covid-19-leads-arrest-reductions

Cato: FDA Determined Convalescent Plasma Is Safe, Leaves Decisions on Efficacy up to Clinicians/​Patients. That’s the Way It Should Always Be

 Yesterday the Food and Drug Administration released a clinical memorandum giving Emergency Use Authorization for COVID-19 Convalescent Plasma (CCP) therapy, a previously unapproved biological product. For several months clinicians treating severely ill COVID-19 patients have transfused plasma donated by convalescing COVID-19 patients, rich with the antibodies to the virus produced by their immune system, hoping that these same antibodies can help patients suffering from active infection. Early results have been promising but, as some critics of the FDA decision have stated, more data is needed before definitive conclusions can be drawn regarding the efficacy of CCP therapy.

Using the antibodies in plasma from patients who have defeated a viral infection to treat newly infected patients is not a new idea. Clinicians and clinical researchers used it as early as the late nineteenth century to treat diphtheria and it was employed in the early twentieth century in the Spanish influenza epidemic.

By issuing the EUA allowing physicians to use convalescent plasma, the FDA didn’t make a final determination as to the treatment’s efficacy. The agency stated it “may be effective.” Importantly, it concluded that the treatment is safe. The FDA press release stated, “the known and potential benefits of the product outweigh the known and potential risks of the product.”

Read more at https://www.cato.org/blog/fda-determined-convalescent-plasma-safe-leaves-decisions-efficacy-clinicians/patients-thats

Cato: One Image to Capture the Unending Complexity of the H-2A Visa Program

 The Cato Institute published my latest Immigration Research and Policy Brief today. It provides basic facts about the H-2A visa program that farms use to hire guest workers. It contains a massive table of the 209 major H-2A rules that farmers must follow, which stretches for 14 pages in the print version, but perhaps nothing captures H-2A’s oppressive level of regulatory morass than Figure 4’s flow chart of the H-2A process.

The flow chart is a two‐​page maze of bureaucracy. It contains 69 action boxes. At every point there’s a possibility that an application or worker could be denied or delayed, upending the harvest for farmers. Its six sections represent the six government entities that conduct oversight over the H-2A program and that have the power to bar employers from hiring workers. Embedded within each step are dozens of rules and requirements. Each box represents a cost to employers and workers preparing and justifying their need to hire or work in this country.

Read more at https://www.cato.org/blog/one-image-capture-unending-complexity-h-2a-visa-program

Cato: American Courts Don’t Have Universal Jurisdiction

 Child slavery within the cocoa trade has earned global attention. Nestlé has condemned the practice and joined accords aimed at abolishing human trafficking in the region. Nonetheless, the chocolate company finds itself in a decade‐​long lawsuit over the enslavement of Malians on Ivorian plantations on the basis of the corporation’s alleged purchase of cocoa from farms that used slaves.

The Alien Tort Statute gives federal courts jurisdiction over cases brought by foreigners who allege a “violation of the law of nations or a treaty of the United States.” Passed as part of the Judiciary Act of 1789, its purpose was to assure foreign governments that the United States would provide legal remedies for breaches of international law. The Supreme Court in Kiobel v. Dutch Petroleum (2013) held that this law presumptively doesn’t apply to violations committed abroad. 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.

So it would seem that a lawsuit against a U.S. company based on actions taken abroad would not be recognized under the ATS, but the U.S. Court of Appeals for the Ninth Circuit disagreed. After being dismissed in the district court, the plaintiffs have twice successfully appealed to the Ninth Circuit. On the second appeal, post‐Jesner, the court found that U.S. corporations could be sued under the ATS. Now before the Supreme Court, Nestlé is asking the Supreme Court to reverse that holding.

Read more at https://www.cato.org/blog/american-courts-dont-have-universal-jurisdiction

Cato: Austin Asks “What’s Your Sign?” Before Violating the First Amendment

 When does a local ordinance relating to commercial signage become an unconstitutional regulation of speech? That is the question before the U.S. Court of Appeals for the Fifth Circuit in Reagan National Advertising of Austin v. City of Austin—a case that, if Austin, Texas has its way, could bring a troubling course correction to existing commercial‐​speech doctrine.

Austin distinguishes “on‐​premise” from “off‐​premise” signs, prohibiting the construction of new “off‐​premise” signs—signs that advertise products or businesses located elsewhere—while at the same time allowing for new “on‐​premise” signs. The city argues that the distinction preserves the city’s aesthetic character and ensures public safety. When advertising company Reagan National (not related to the airport) applied to construct dozens of off‐​premise signs, the city denied the permit.

Reagan National sued under the First Amendment. The district court applied so‐​called intermediate scrutiny and upheld the regulation. Now, on appeal to the Fifth Circuit, Reagan National asks the court to overturn the district court and Cato filed an amicus brief in support.

At a hearing last week, the judges probed both sides’ arguments in ways that offer some clues into their thinking, suggesting they are inclined to reverse the lower court. The judges pressed Reagan National on practical workarounds to otherwise unconstitutional restrictions, including advertising off‐​premises “for a short time,” as one judge understands the ordinance, but more or less left it at that. The judges were much less forgiving in their questions to Austin. Out of the gate, they wondered aloud how regulating the words on a sign—in contrast to its color or size—can be considered anything other than content‐​based.

Read more at https://www.cato.org/blog/austin-asks-whats-sign-violating-first-amendment

Cato: “Acting” Officers Can’t Act Forever, and Their Rules Are Illegitimate

 A core component of the balance of powers between the executive and legislative branches is the Senate’s role to advise and consent to the appointment of officers. Under the Appointments Clause of Article II, federal officials are nominated by the president with the “advice and consent of the Senate.”

However, and this should come as no surprise to anyone, the Senate is not an efficient body; there are often delays with the appointment process, both due to unexpected vacancies, and general political gridlock. Knowing this, Congress enacted the Federal Vacancies Reform Act (FVRA) which allows the president to appoint “acting” officers, without the Senate’s advice and consent, so long as they are only in office for a limited time: a maximum of 210 days. This act is a narrow exception and is the only way that the president can make non‐​recess appointments which do not go through the advice and consent of the Senate. 

Nonetheless, in April 2019, Kevin McAleenan assumed the role of “acting” Secretary of the Department of Homeland Security (DHS), directly followed by Chad Wolf who assumed the position in November 2019. Not only did both of their appointments violate the FVRA by going outside of the order of succession, but by the time Wolf was appointed as acting secretary, no one was eligible to be “acting” secretary because the 210 day period had elapsed.

Read more at https://www.cato.org/blog/acting-officers-cant-act-forever-their-rules-are-illegitimate

Cato: There Is No Good Justification for the New Immigration Ban

 On January 31st, the Trump administration issued a proclamation that stopped the issuance of most green cards to citizens of Nigeria, Kyrgyzstan, Eritrea, Myanmar, Tanzania, and Sudan. If the ban applied to these countries in 2018, it would have blocked 12,313 green cards that year.

This is the second wave of ‘travel bans’ issued by the Trump administration since the initial ban of many predominately Muslim‐​majority countries in 2017. The stated justification for these bans is to protect the public from terrorist and criminal threats that could be committed by immigrants from those countries. Furthermore, they claim to target green card holders because it is more difficult to deport them than other migrants.

However, these claims are not supported by historical data about the threat of terrorist attacks on U.S. soil. Furthermore, because the administration fails to publicly release the criteria used to determine why these countries are banned, the public cannot truly know why these countries were chosen.

My own research shows that citizens of the new banned countries have not contributed significantly to terrorism. From 1975 through the end of 2017, 11 foreign‐​born terrorists from those countries attempted or committed attacks on U.S. soil. They murdered six people in their attacks. The annual chance of being murdered by a foreign‐​born terrorist from those six countries on US soil is approximately 1 in 1.9 billion per year.

Those six murders by terrorists, as tragic as they were, account for a mere 0.2 percent of the 3,037 people murdered by foreign‐​born terrorists on U.S. soil during that 43‐​year period. By those metrics, a ban on the listed countries would hardly curb terrorist attacks or do much of anything to protect Americans from the risk of attack.

The most perplexing part of the ban is that it targets green card holders, although they are even less likely to commit attacks on U.S. soil. Green cards are not the way terrorists attempt to enter the country. Only about 0.6 percent of all murders committed by foreign‐​born terrorists on U.S.-soil were committed by those who entered with green cards.

Read more at https://www.cato.org/blog/there-no-good-justification-new-immigration-ban

Cato: Quench the Fire of Partisan Judicial Politics

 The death of Justice Ruth Bader Ginsburg would be a tragedy at any time, but her death only six weeks before a rancorous presidential election has thrown a match into our already smoldering political tinderbox. At a time when inter‐​party animosity is uncomfortably high, it’s time to call upon the better angels of our nature to determine the future of our most precarious branch of government.

In the coming weeks, there will be much discussion—if not shouting—over who should choose Justice Ginsburg’s replacement and how the Senate should behave. While the constitutional questions are simple—the president has the right to nominate a justice and the Senate has the right to confirm or not—there are bigger questions of political and institutional propriety at stake. A well‐​functioning liberal democracy depends not only on determining what can be done—as in what is allowed by constitutional rules—but also what should be done.

The schismatic Trump era, and even the years before, have made the importance of institutional norms more apparent. Our Framers set up a well‐​designed constitutional framework, but that terse 4,500-word document hardly contains all the rules needed to construct a free, liberal, and tolerant society. Some norms, such as not threatening to jail your political opponents, help establish the process of a peaceful transfer of power. Other norms, such as not Borking Supreme Court nominees, were violated long ago and became the new normal.

Those constitutional virtues have not been on strong display over the past four years. Elections have been contested, diplomatic powers have been abused, and pardons have been distributed as personal and political favors. Meanwhile, armed protestors have taken to the streets and actually fought and murdered their political opponents.

Read more at https://www.cato.org/blog/quench-fire-partisan-judicial-politics

Cato: The Coming Battle Over Exclusive Representation

 Labor unions have always had a difficult time with those who don’t want the union’s representation. Those who crossed the picket line or those who were hired during a strike were called “scabs,” and unions sometimes employed violence or threats of violence against those who didn’t follow the union’s commands. One solution to this problem was the system of exclusive representation. Under exclusive representation, which was established by the National Labor Relations Act of 1935, if a majority of workers in a bargaining unit vote for a union, then that union becomes the exclusive representative for all the workers, even those who didn’t vote for it. Thereafter, workers are prohibited from bargaining on their own behalf.

Although exclusive representation is held up by some as a cornerstone of unionism, it is an antiquated practice that has many critics among labor union supporters. Union organizers and labor activists have written that exclusive representation was “designed to fit the immobile facilities and monolithic corporations that were at the heart of Fordist mass production, the system makes little sense in today’s world of fissured workplaces and flexible production.” Moreover, after the Supreme Court’s decision in Janus v. AFSCME, public‐​sector unions are no longer allowed to compel payments from nonmembers. Yet they still exclusively represent those nonmembers and owe a “duty of fair representation” even to those who aren’t contributing. 

It was thus no surprise that, after Janus, many people thought representation would be next on the Supreme Court’s chopping block, and a new case is asking the Court to extend its ruling in Janus to exclusive representation.

Read more at https://www.cato.org/blog/coming-battle-over-exclusive-representation

Cato: Breonna Taylor Is Another Victim of the War on Drugs

 Yesterday Kentucky Attorney General Daniel Cameron announced charges against one of the three officers who killed Breonna Taylor, an emergency medical worker who was shot when police raided her apartment on the suspicion that her ex‐​boyfriend, Jamarcus Glover, had received shipments of drugs at her address. The charges, three counts of wanton endangerment, were not for shooting and killing Ms. Taylor in her own home but for firing three stray rounds through a curtained window. Whether the charges, or lack thereof, are the appropriate legal response lies outside of our particular expertise, but widespread protests in the wake of the announcement show that many people do not feel justice has been served.

The Drug War killed Breonna Taylor. Former Detective Brett Hankinson, Sergeant Jonathan Mattingly, and Detective Myles Cosgrove may have pulled the trigger, but they carried out this raid because of our misguided, ineffective, and racist drug laws. Since President Nixon first declared a “War on Drugs” in 1971, Black Americans have been arrested, jailed, and killed for frequently minor or nonviolent drug offenses. No‐​knock raids, in which police are authorized to enter a property without notifying the residents, have become a favorite tool of law enforcement, with tens of thousands executed each year.

Read more at https://www.cato.org/blog/breonna-taylor-another-victim-war-drugs