Some lawmakers seem to suffer from long‐​term memory loss. This can be worrisome—both for them and for the country. It seems like only yesterday (it was March 2020) when New York Governor Andrew Cuomo complained about the cumbersome Food and Drug Administration approval process for COVID-19 tests, pleading with federal regulators to permit the state’s Wadsworth Laboratory and private labs to perform laboratory developed tests (LDTs) without waiting for a green light from the FDA. At the time the U.S. lagged embarrassingly behind South Korea and other Asian and European countries in testing its population, as case numbers soared and hospitals were overwhelmed in the New York metropolitan area.

Fortunately, by mid‐​March 2020 the FDA finally relented and allowed New York’s Department of Health to process tests by contracting with private labs whose tests had not yet received FDA approval. In fact, the FDA made regulatory changes permitting all states to use tests developed by laboratories within their borders. While late to the game, the FDA finally adopted an approach used so successfully in South Korea.

South Korea enacted a reform after its disastrous experience with the MERS pandemic. Rather than get caught flat‐​footed when the next pandemic inevitably arrives, South Korea reformed regulations to allow for the rapid deployment of tests developed in private labs in a partnership in which the labs kept the regulatory agencies apprised of test safety and efficacy in real time.

In August of 2020 the Department of HHS took the FDA emergency action a step further by announcing it will no longer require FDA pre‐​market approval of LDTs. A report in the National Law Review stated:

The notice clarifies that clinical laboratories that develop and offer LDTs may voluntarily seek approval, clearance, or an Emergency Use Authorization (EUA) from FDA, but that such laboratories are not required to do so. However, laboratories that chose to run LDTs for SARS‐​CoV‐​2 (COVID-19) without FDA premarket review or authorization will not be eligible for liability protections under the Public Readiness and Emergency Preparedness Act (PREP Act).

Yet now that case rates in the U.S. are gradually coming down and it appears the worst is behind us, lawmakers seem to have forgotten the lesson of the 2020 COVID test debacle. On May 11, 2021, majority leaders of the House Energy and Commerce Committee, its Subcommittee on Health, and the House Oversight Committee wrote Secretary of Health and Human Services Xavier Becerra asking him to rescind the August 2020 HHS policy change and return the regulatory regime to the status quo ante.

Last Spring a consensus was emerging that a rigid and inflexible regulatory regime caused unnecessary delays in getting tests, drugs, and devices, and health care practitioners to a public in need during a national health emergency. The slow and poorly coordinated response to the crisis at all levels of government provided an opportunity to comprehensively reassess the myriad laws and regulations that blocked a nimble response. Alas, it appears long‐​term memory loss might leave too few lawmakers up to the task.

In the wake of the Colonial Pipeline outage that has produced mounting fuel shortages along the East Coast, the Department of Transportation has announced that it is taking initial steps to determine if a Jones Act waiver is warranted. It’s not hard to see why. Transporting a massive 100 million gallons of fuel per day, the Colonial Pipeline accounts for 45 percent of the fuel used on the East Coast. That’s a huge supply gap to fill and, as the Energy Information Administration points out, waterborne transport can play a key role:

Markets along the Atlantic Coast with access to deepwater ports, such as Savannah, Georgia; Charleston, South Carolina; Wilmington, North Carolina; and Norfolk, Virginia, can receive limited imports from the global market and from marine shipments via coastwise compliant shipping originating from the U.S. Gulf Coast.

Unfortunately, only a relatively small number of tanker ships ideally suited to transport refined petroleum products are deemed coastwise compliant, meaning they meet the Jones Act’s requirements of being U.S.-flagged, U.S.-built and mostly U.S.-crewed and owned. Waiving the Jones Act would allow far more numerous—and significantly cheaper—vessels not compliant with the law to quickly move fuel from the Gulf Coast to where it’s needed.

The transportation system requires maximum flexibility in an emergency or crisis, and a Jones Act waiver would help provide it.

There is ample precedence for such a move. In the wake of Hurricanes Harvey and Irma in 2017, along with Hurricane Sandy in 2011, a lack of fuel supplies was deemed to be a threat to national security, thus clearing the way for the issuance of Jones Act waivers. If it was a good enough reason to justify a waiver then it should be a good enough reason now.

But waivers should only be a prelude to more significant changes to the Jones Act.

The law isn’t just a problem in times of pressing need, but also in everyday life. By limiting domestic waterborne transport to ships that are the world’s most expensive to build and operate, the Jones Act interferes with the efficient flow of goods within the United States. That’s particularly true of petroleum products where the law’s distortions are in abundance. For example:

• Refined products produced in the Gulf Coast are sent to Latin America instead of the East Coast.
• Refineries on both the East Coast and West Coast can find it more attractive to import oil from abroad than other parts of the United States.
• California can source gasoline more cheaply from distant Singapore than the Gulf Coast.

At its worst, the Jones Act can even make domestic transportation outright impossible. While the United States is the world’s leading exporter of propane, Hawaii must buy it from as far away as Africa owing to a complete lack of Jones Act‐​compliant ships capable of transporting it from the U.S. mainland. A similar absence of appropriate ships, meanwhile, means that Puerto Rico has no choice but to meet its bulk liquefied natural gas needs from foreign sources.

These inefficiencies are not just a hit to the country’s economic pocketbook, but a threat to its security. Reduced transportation options or over‐​reliance on a single method of transport can lead to significant problems when things go awry, as we are painfully finding out. Redundancy and flexibility are key to overcoming systemic breakdowns, and the Jones Act means less of both.

So, what should be done?

At a minimum this situation illustrates the need for a waiver system based on commercial considerations. Currently, waivers can only be issued by the Department of Homeland Security if they are deemed in the “interest of national defense” or by the Secretary of Defense in order to address an “immediate adverse effect on military operations.” That’s a high bar to clear, which helps explain why such waivers are rarely issued.

Instead, Congress should create a new type of waiver allowing the use of non‐​Jones Act ships if no vessel meeting the law’s requirements is available—no “national defense” justification required. Canada already has such a system. Other measures that should be on the table include a scrapping of the law’s U.S.-built requirement and permanent exemptions for parts of the United States that are uniquely dependent on maritime transportation such as Alaska, Guam, Hawaii, and Puerto Rico.

A Jones Act waiver could help ameliorate some of the Jones Act’s worst effects, but what’s urgently needed is the significant reform—if not outright repeal—of this failed and costly law.

According to various news reports, Congress is preparing a package of legislative updates to U.S. trade and economic policy in order to address China’s growing economic and geopolitical influence. The resulting “China Package” will, like the Strategic Competition Act of 2021, be a bipartisan effort that includes a mix of diplomatic and strategic policies seeking to bolster U.S. companies’ competitiveness and rein in perceived Chinese abuse. One area ripe for reform – yet unfortunately missing thus far from congressional discussions – is Section 232 of the Trade Expansion Act of 1962, which authorizes the president to impose tariffs on “national security” grounds. As we explained in a recent paper, President Donald Trump routinely abused Section 232 to impose tariffs on steel and aluminum, and threatened them on several other products – abuse that the vague and poorly-conceived law makes all too easy and that has harmed the U.S. economy, including vis a vis China.

Indeed, we count at least five reasons why Section 232 reform should be part of any China Package that Congress will ultimately consider:

The Geopolitics. One of the major lessons from the Trump administration’s use of Section 232 was that unilateralism rarely works. A primary goal of the steel and aluminum tariffs, for example, was to counter overcapacity, particularly in the Chinese steel industry, caused by government policies that untether domestic production from market fundamentals. Both Congress and the Biden administration share this goal, which U.S. Trade Representative Katherine Tai recently acknowledged in congressional testimony. However, Tai also claimed that tariffs imposed under Section 232 had been effective in curtailing steel overcapacity – a claim that, as we’ve noted, is belied by data showing both global and Chinese steel production continued to expand after the tariffs were imposed.

In fact, the tariffs have actually hurt U.S. efforts to rein in China’s behavior by offending close allies who were also subject to the measures, yet are necessary for any global solution to the global overcapacity problem. The European Union, for example, retaliated against U.S. exports after being hit with the metals tariffs, and is set to increase that retaliation on June 1^st – even as Commerce Secretary Gina Raimondo recently acknowledged that “Europe of course is not a threat to American national security.” As long as these tensions (and others) persist, multilateral levers that have in the past altered Chinese policy will be less effective than they’d be without the tariffs (which Biden could eliminate with the stroke of a pen).

The Economics. Various studies and numerous current news reports show that the 232 tariffs hurt the U.S. manufacturing sector, making these companies less competitive globally (and versus Chinese competitors). As we’ve noted in a recent policy analysis:

[T]he tariffs caused higher steel prices that in turn hurt other U.S. manufacturers in terms of higher input costs, lower exports, and lost competitiveness at home and abroad; created an opaque, costly, and uncertain “exclusion” bureaucracy, under which more than 100,000 requests have been filed by U.S. manufacturers seeking relief; resulted in approximately 75,000 fewer manufacturing jobs than would have otherwise existed in the absence of the tariffs; depressed global demand for steel (thereby dampening prices); bred global market uncertainty, which hurt investment in manufacturing; and caused numerous U.S. trading partners to retaliate against American exporters.

In fact, existing 232 tariffs on steel and aluminum continue to threaten U.S. manufacturing recovery even as the situation with the pandemic has improved. Dozens of companies have told the Department of Commerce that this would happen through the exclusion process, so it is not like we had no idea that this would occur.

Earlier today, Connecticut Senator Chris Murphy tweeted:

Maybe he should look a little harder at the figures.

First:
“Boston to DC
– Airline time: 1.6 hours”

The reason high‐​speed rail never caught on in the United States is because we had jet airliners before Japan even started building its first bullet train. Why should we worry that a train from Beijing to Shanghai is faster than a train from Washington to Boston when our planes are twice as fast as the fastest trains in the world?

Second: China recently halted construction on two new high‐​speed rail lines due to mounting debt. As of a year ago, China State Railway had an $850 billion debt, and China transport experts say 80 percent of that debt is due to construction of high‐​speed rail lines. Construction is also partly paid for by local provinces, which have also gone heavily into debt for high‐​speed rail. As a result, the country is slowing its expansion of high‐​speed rail.

Most of China’s high‐​speed rail lines lose money. China hopes to recoup some of these losses by selling its high‐​speed rail technology to other countries, which puts those countries so heavily in debt that the program is known as “debt‐​trap diplomacy.” We need to be careful not to be lured into that trap ourselves.

Third: One thing that China isn’t slowing is its construction of new expressways. At the end of 2020, China had about 23,000 miles of high‐​speed rail lines but 100,000 miles of expressways, a 7,000-mile increase from 2019. That’s 50 percent more expressway miles than are found in the United States and close to ten times as many new expressway miles built here in 2020. China’s expressways are paid for out of tolls and unlike the rail lines there are no worries that they will contribute to a debt crisis.

China is gaining on us because it is learning what we knew 65 years ago (when Congress created the Interstate Highway Program) but have since forgotten: transportation that pays for itself out of user fees will do more for our economy than transportation that depends on heavy subsidies and government debt.

Floridian state and local governments worked at cross purposes in early May when, while Miami Mayor Francis Suarez wooed Silicon Valley at Tech Week, the Florida legislature sent a punitive social media bill to Governor DeSantis’ desk. Florida Senate Bill 7072 is intended to prevent supposedly biased content moderation and punish monopolistic firms, but it is unworkable and unconstitutional. If Gov. DeSantis signs SB 7072, it will invite costly legal challenges and kneecap Miami’s overtures to the tech industry.

The bill is comprised of two main sections. The first section establishes a state “antitrust violator vendor list” of disfavored firms. The second enumerates a host of new prohibitions and mandates planned to produce fairness in content moderation. Many are fairly technical; platforms must offer accurate view count tools, “provide a user with the number of other individual platform participants who were provided or shown content or posts,” give written explanations of all content moderation decisions, and store all data from banned accounts for free for 60 days. Platforms are prohibited from moderating journalists’ speech. These requirements may be enforced via private suit or administrative action under the Florida Deceptive and Unfair Trade Practices Act. Private suits utilizing the new causes of action are likely precluded by Section 230 of the Communications Decency Act, which give platform broad leeway to moderate, and stipulates that;

“No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”

While Section 230 wouldn’t prevent administrative enforcement of the new requirements, the First Amendment would. The bill makes a “deceptive act or practice” of platform operators’ exercise of their basic First Amendment rights to speak or refrain from speaking. As Berin Szoka and Corbin Barthold explain, courts have repeatedly held that onerous regulation, even regulation intended to promote speech, raises First Amendment concerns if it makes carrying speech more costly or difficult.

The bill’s “antitrust violator vendor list” provision is likely legal but foolish. Persons added to the list would be denied government contracts and certain state financial incentives. Criteria for inclusion or exclusion from the list is convoluted in the extreme. The list would initially include anyone convicted of an antitrust offense federally, or by other states, effectively outsourcing Florida’s judgement. However, another layer of review would have administrative judges conduct balancing tests between various public interests in order to add or remove names from the list. Bidders not selected for state contracts would have a new mechanism for contesting and dragging out the process. Competing states would be granted a potent tool for dissuading firms from moving to Florida. Introducing a source of continuing uncertainty into Florida’s state vendor selection process is unlikely to be good for Floridians.

Most people would agree that police officers shouldn’t be punished for split‐​second mistakes in judgment. That’s why the Graham and Garner tests for whether or not an officer’s use of force amounts to a constitutional violation require an analysis of whether that use of force was reasonable with regard to the particular circumstances the officer was in.

But qualified immunity goes beyond Graham and Garner with its maddeningly arbitrary “clearly established law” requirement. In effect, “clearly established law” adds a separate, completely illogical burden of proof to constitutional torts cases: proving the existence of a prior case with functionally identical facts.

To illustrate how this works, consider the case of Amy Corbitt. Officer Vickers, in pursuit of an unrelated criminal suspect, showed up in Amy Corbitt’s yard where children were playing. After making everyone lie down on the ground, Officer Vickers—under no provocation whatsoever—shot at Amy’s dog, missed, and hit her child instead. Very clearly, Officer Vicker’s use of force was unreasonable under the tests of Garner and Graham. But since there wasn’t a prior court case where an officer shot at a harmless dog, missed and then hit a child, Officer Vickers was granted qualified immunity and Amy Corbitt wasn’t allowed to take him to trial for the injury to her child at all.

The theoretical justification for this absurd outcome is that without the clear guidance of existing case law, public officials would not be able to discern what conduct is permissible under the plain text of the Constitution. There are a lot of flaws with this reasoning, but a new article from Joanna Schwartz, a UCLA law professor and leading scholar of qualified immunity, has identified a particularly damning one: police officers don’t study “clearly established law” at all.

Professor Schwartz combed through 284 Supreme Court and Ninth Circuit cases involving excessive force claims and then compared them to the actual training received by California police officers. What she found: 95% of agencies rely on the same company to develop the use‐​of‐​force guidelines in their policy manuals, which teach officers the “reasonableness” tests of Graham and Garner but provide scant or no instruction on the subsequent holdings that form the body of “clearly established law.” The other 5% fare little better. Likewise, California’s POST training—required by all California law enforcement officers—sticks firmly to Graham and Garner and barely mentions any of the 284 cases that create the body of “clearly established law.”

The full article goes on to examine police training in far greater detail, including in‐​service police training and police training courses available at community colleges. Professor Schwartz’s conclusion is that the “clearly established law” standard serves no meaningful purpose in educating officers about the appropriate use of force—and that the arbitrary standard of qualified immunity should be eliminated.

Her article thus provides solid empirical support for what was already a commonsense intuition: police officers never learn “clearly established law.” As Judge James Browning of the District of New Mexico wrote in a 2018 opinion:

The Supreme Court’s obsession with the clearly established prong assumes that officers are routinely reading Supreme Court and Tenth Circuit opinions in their spare time, carefully comparing the facts in these qualified immunity cases with the circumstances they confront in their day‐​to‐​day police work. It is hard enough for the federal judiciary to embark on such an exercise, let alone likely that police officers are endeavoring to parse opinions. It is far more likely that, in their training and continuing education, police officers are taught general principles, and, in the intense atmosphere of an arrest, police officers rely on these general principles, rather than engaging in a detailed comparison of their situation with a previous Supreme Court or published Tenth Circuit case. It strains credulity to believe that a reasonable officer, as he is approaching a suspect to arrest, is thinking to himself: “Are the facts here anything like the facts in York v. City of Las Cruces?

As we’ve argued in the past, eliminating qualified immunity wouldn’t change the fact that Garner and Graham protect police from the consequences of good‐​faith mistakes made in dangerous, volatile encounters. Now we know it would also bring the state of the law in line with what officers are actually being taught about the legal boundaries of the use of force—which is almost exclusively Graham and Garner.

Joanna Schwartz’s full article is available here.

Many Americans have an idealized conception of how Congress legislates, one famously described by Schoolhouse Rock commercials. Under this renowned framework, a bill starts in a congressional subcommittee, where it is debated in hearings and edited in a process known as a “mark up.” If a subcommittee majority ultimately approves it, then the bill goes through another round of debate and edits, this time before the full committee. And if the bill passes out of the full committee, there is yet another round of debate and edits, this time on the floor of the House or Senate. Finally, if the bill survives all that, it’s sent to the other chamber of Congress, where the process starts anew. Thus, many of us have learned “how a bill becomes a law.”

Yet contemporary lawmaking looks far different. Consider the five COVID relief packages passed by Congress, totaling almost $6 trillion in spending. Never before has so much been spent by so few behind closed doors.

The first four COVID bills occurred during the 116^th (last) Congress, when Democrats controlled the House, and Republicans controlled the Senate. These massive spending measures were negotiated by party leaders, and then dumped on the rank and file, who were expected to pass the bills sight unseen, under a parliamentary procedure known as “unanimous consent.”

The most recent COVID stimulus, the $1.9 trillion American Rescue Plan, came out of the (current) 117^th Congress, in which Democrats hold majorities in both chambers. Unlike the prior pandemic relief bills, this last measure engendered partisan disagreement, so “unanimous consent” was unavailable. Instead, congressional Democrats turned to a procedural device known as “reconciliation,” which allows them to avoid a Senate filibuster. While unanimous consent and reconciliation entail obvious differences—the former requires unanimity, while the latter requires only a majority—these two parliamentary mechanisms share one crucial similarity: they are both controlled by party leaders, who negotiate legislation that is then dropped on lawmakers’ laps for a take-it-or-leave-it vote.

Clearly, we have fallen a long way from Schoolhouse Rock-style deliberation. Alas, there is further to fall.