Archives: 02/2018

Hospital Didn’t Accommodate Flu-Shot Objectors On Staff, Must Pay $89,000

I’ve got the story at Overlawyered

The Equal Employment Opportunity Commission has announced that Mission Hospital in Asheville, N.C. will pay $89,000 for failing to accommodate employees “who declined flu vaccinations based on their religious beliefs.” [EEOC press release] Mission had in fact agreed to exempt employees from the flu shot based on religious objections, but required that they declare their intention ahead of time. And that turned out to be not accommodating enough, since not requiring that extent of advance notice would not in the EEOC’s view have posed an undue hardship on the employer — hence the expensive lesson….

Under the elastic “undue hardship” standard, employers may face much uncertainty as to how much disruption of their business they must put up with in the name of accommodation. The flu-shot example suggests that risks to co-workers, customers, and the general public might sometimes enter the calculus as well — an expensive guessing game at best.

More about obligations of religious accommodation under federal law, including the elastic way they tend to shrink or expand these days based on the ideological uses to which they are put, at the link. Here, however, I’d like to make a different point. Libertarians take a lot of flak because some of our number criticize mandatory government vaccination as an infringement of principles of voluntary association (though many other self-described libertarians do not in fact take this view). But in the case of Mission Hospital – a private, not-for-profit institution – principles of voluntary association lead directly to the view that the hospital should be free to require such measures of its workforce, whether to avoid risks of direct contagion, to set a good example when urging patients to vaccinate, or from other rationales. Yet here the federal government deploys its full force to prevent private and voluntary social mechanisms from being brought to bear to get a potentially high-risk group to undergo vaccination. 

Flu season is not over and this year’s strain has proved particularly deadly, by the way, so please consider protecting your family and loved ones if you have not already. Details here and here

Infrastructure We Don’t Need

Here’s the great thing about driverless cars: They will need no new infrastructure because the people designing them are making them work with existing infrastructure. All they ask is for cities and states to fill the potholes and do other basic maintenance.

Here’s another great thing about driverless cars: Most congestion results from slow human reflexes, and simulations show that congestion will significantly decline if as few as 5 percent of vehicles on the road are driverless. So, even if you don’t have a driverless car, you will benefit from others being driverless.

So why is Bexar County (San Antonio) Commissioner Kevin Wolff proposing to use federal infrastructure dollars to build new interstate highway lanes open only to driverless cars? On one hand, they don’t need special lanes. On the other hand, separating them from other traffic eliminates the congestion relief benefits they can provide.

Kevin Wolff is the son of Nelson Wolff, San Antonio’s leading streetcar supporter and a long-time proponent of pork barrel in general (among other things, he has a stadium named after him). Kevin opposed the streetcar, but he supported another even more foolish rail-transit proposal.

The state of Texas is planning to add four lanes to relieve congestion on Interstate 35 in San Antonio. All four would be “managed,” meaning tolled to make sure they never get congested. Wolff’s idea is to dedicate two of those lanes to driverless cars, which means two fewer lanes for other people to use.

Kevin says he floated his driverless-lane idea to the Trump Administration, which has proposed to spend $20 billion on “innovative” infrastructure projects. “They told me, ‘This is just the kind of proposal we want to fund,’” he said.

Actually, it is just the kind of proposal they should not fund. It isn’t necessary. It doesn’t relieve congestion and will probably make it worse than having four managed lanes. It doesn’t help restore crumbling infrastructure. It merely adds more infrastructure that won’t have a source of funds to maintain it.

Falling Behind from Behind on Trade

It can be hard to track exactly what is going on with trade negotiations, and when the news reports are actually a big deal. Each round of negotiations generates headlines, but often leads to nothing except for another round of negotiations. But yesterday the 11 governments negotiating the Trans-Pacific Partnership released a revised version of the text of the agreement, which is kind of a big deal, because you never know for sure how much progress governments are making until they show you the final document. Releasing the text indicates that this agreement is definitely going forward, with signing and ratification coming soon. And of most relevance for Americans, it is going forward without the United States, as President Trump withdrew from the agreement soon after he took office.

What’s in this deal? New Zealand has provided a good summary of what it thinks it is getting from the agreement in terms of lower tariffs and other items (and which U.S. businesses won’t be benefitting from). Here are just a few examples:

  • Japan will reduce its 38.5% tariff on beef to 9% over 16 years.
  • Japan’s tariffs on offal and processed meats will be eliminated over 11–13 years with a 50% reduction at entry into force. 
  • Tariffs on most cheese types will be eliminated in Japan over 16 years.
  • Malaysia will eliminate liquid milk tariffs over 16 years. 
  • All tariffs on apples would be eliminated within 11 years.

That’s all very good news for the countries who are part of the agreement. But as the United States is no longer part of the agreement, there are no direct benefits to Americans. It’s also worth noting that the revisions to the TPP which occurred after the United States withdrew, and which provided the basis for the other countries to go ahead, were suspensions of provisions that the United States had wanted in there.

Of course, the United States could negotiate its own trade agreements with these same countries. But that hasn’t happened. Back in November, I asked: “We are now nine months into the Trump administration, and it’s reasonable to ask: where are all the new trade deals that were promised?” Now we are more than a year into the Trump administration, and the falling behind on trade just keeps falling further.

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The Russian Danger

Last week Robert S. Mueller III, the special counsel, indicted 13 Russians for intervening in the 2016 United States election. Two of the charges  - buying political advertisements and mandatory disclosure - bear on free speech.

Much of the indictment documents activities during the election that would be both normal and protected by the Constitution if undertaken by American citizens. The defendants bought political advertisements, staged political rallies, and even “posted derogatory information about a number of candidates,” Hillary Clinton in particular. Lacking all scruples, they are said to have “solicited and compensated real U.S. persons to promote or disparage candidates” which means paying an actress to impersonate Hillary Clinton in jail. The defendants tried to create “political intensity through supporting radical groups, users dissatisfied with [the] social and economic situation and oppositional social movements.” Overall the Russians hoped “to sow discord in the U.S. political system.”

As it happens, all this activity may be illegal because the Russian government supported these activities. The Federal Election Commission concisely explains regulation 110.20: , “The Federal Election Campaign Act (FECA) prohibits any foreign national from contributing, donating or spending funds in connection with any federal, state, or local election in the United States, either directly or indirectly.”  The Commission notes that this ban “was first enacted in 1966 as part of the amendments to the Foreign Agents Registration Act (FARA), an “internal security” statute.  The goal of the FARA was to minimize foreign intervention in U.S. elections by establishing a series of limitations on foreign nationals.” FARA also required agents of foreign principals to register with the federal government presumably, as the indictment says, so “the people of the United States are informed of the source of information and the identity of persons attempting to influence U.S. public opinion, policy, and law.” (It should also be noted that the defendants are charged with several counts of fraud and identity theft).

New York Attorney General Schneiderman Goes After Citizens United’s Donors

New York Attorney General Eric Schneiderman demands out-of-state charities disclose all donors for his inspection. He does not demand this of all charities, only those he decides warrant his special scrutiny. Schneiderman garnered national attention for his campaign to use the powers of his office to harass companies and organizations who do not endorse his preferred policies regarding climate change. Now, it seems he seeks to do the same to right-of-center organizations that might displease him. Our colleague Walter Olson has cataloged Schneiderman’s many misbehaviors.

He’s currently set his sights on Citizens United, a Virginia non-profit that produces conservative documentaries. While Citizens United has solicited donations in New York for decades without any problem, Schneiderman now demands that they name names, telling him who has chosen to support the group. Citizens United challenged this demand in court, arguing that to disclose this information would risk subjecting their supporters to harassment and intimidation.

These fears are not mere hyperbole. If the name Citizens United rings a bell, it’s because the organization, and the Supreme Court case of the same name, has become the Emmanuel Goldstein of the American left, complete with Democratic senators leading a ritualistic two minutes hate on the Senate floor. In 2010, the Supreme Court upheld its right to distribute Hillary: The Movie, and ever since “Citizens United” has been a synecdoche for what Democrats consider to be the corporate control of America. Is it unwarranted to think that their donors might be subjected to the sort of targeted harassment suffered by lawful gun owners, or that Schneiderman might “accidentally” release the full donor list to the public, as Obama’s IRS did with the confidential filings of gay marriage opponents?

The Supreme Court has long recognized the dangers inherent in applying the power of the state against the right of private association. The cornerstone here is 1958’s NAACP v Alabama. For reasons that hardly need be pointed out, the NAACP did not trust the state of Alabama, in the 1950s, to be good stewards of its membership lists. “Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs,” wrote Justice John Marshall Harlan II, who went as far as to compare such demands to a “requirement that adherents of particular religious faiths or political parties wear identifying arm-bands.” More recently, Justice Alito pointed out in a similar context that while there are undoubted purposes served by reasonable, limited disclosure requirements, the First Amendment requires that “speakers must be able to obtain an as-applied exemption without clearing a high evidentiary hurdle” regarding the potential harms of disclosure.

But the Second Circuit Court of Appeals has decided it knows better than the Supremes. On Thursday, it ruled that Citizen United’s challenge should be thrown out without even an opportunity to prove their case. In the process, it effectively turned NAACP into a “Jim Crow” exception to a general rule of unlimited government prerogative to panoptic intrusion into citizen’s political associations. While there can be no doubt that the struggle for civil rights presented a unique danger for its supporters, this should not mean that only such perils warrant First Amendment protection.

A Poster Child for Government Waste

The Maryland Transit Administration suddenly shut down the Baltimore Metro last week, forcing commuters and other riders to find alternatives with less than 24 hours’ notice. The state said an inspection had found unexpectedly excessive wear on the rails that could have caused a derailment, and it plans to keep the line closed for a month while it fixes the problem – and then to close it again this summer for further work.

The coincidence that the shut-down took place the same day the White House announced its infrastructure plan led the Washington Post to call the metro the latest poster child for the need for more infrastructure spending. In fact, it is a poster child for less infrastructure spending, as it should never have been built in the first place.

 Productivity of United States Metro Systems

Thousands of Trips Per Year

  Trips/mile Trips/station Subsidy/Trip
New York Subway 3,211 5,699 $1.64
NY-NJ Path 2,049 6,794 1.60
Boston 1,615 3,231 2.66
Los Angeles 1,349 2,875 7.82
Philadelphia-SEPTA 1,020 1,358 16.05
Washington 852 2,738 1.96
Chicago 900 1,645 4.56
Atlanta 693 1,893 6.08
Oakland 510 3,105 3.48
Miami 368 933 5.18
Baltimore 359 872 6.92
San Juan 322 513 9.17
Staten Island 271 391 2.34
Philadelphia-PATCO 277 819 3.23
Cleveland 168 356 3.11

“Subsidies” equal operations & maintenance divided by fares. Source: 2016 National Transit Database.

As the above table shows, Baltimore’s metro is one of the least-productive and most subsidized heavy-rail lines in the country. It’s even worse when stacked up against metro’s worldwide. Of 158 metros for which data is available, Baltimore’s ranked 150th in trips per station and 152nd in trips per mile.

A 1990 US DOT report found that the first 7.6-mile segment was supposed to cost $800 million to build but actually cost $1.3 billion (about $1.5 and $2.4 billion in today’s dollars). It was supposed to carry 103,000 riders per weekday, but in its early years it only carried about 43,000. Maryland has since extended the line to 17 miles, yet weekday ridership in 2016 was less than 41,000, effectively meaning the extensions attracted no new riders.

To make matters worse, Baltimore bus ridership declined from 106.1 million trips the year the Metro opened to 75.6 million trips in 2016. Since Baltimore light-rail and Metro lines together carried less than 20 million trips in 2016, transit ridership would have done better if the state had put a much smaller amount of money into bus improvements.

Baltimore Metro cars have 76 seats yet carry an average of just 11.5 riders over the course of a day, which is fewer than the 13.5 passengers carried by Maryland Transit buses. Buses also cost less to operate: in 2016, MTA spent $15.73 per vehicle-revenue mile on operations and maintenance for its buses but $17.60 per mile for its Metro railcars.

In other words, buses could have performed the job of the metro for a lot less money. Now that the line is more than 30 years old and worn out, it should be replaced with buses. Instead, they are going to spend millions of dollars making token fixes and let passengers suffer increasing reliability problems.

Naturally, Maryland Governor Larry Hogan blames previous administrations for underfunding maintenance. Yet he has been in office now for more than three years, so he can’t really blame the problems on previous administrations. Why didn’t the transit authority detect the track wear sooner? Why weren’t they able to fix the problem when they were recently single-tracking the line for maintenance work?

One answer is that Hogan and his Department of Transportation have been focused on new projects rather than maintaining old ones. He was the one who decided to build the Purple Line, which will cost more than $2 billion and make congestion worse. He is also pushing for a ridiculously expensive mag-lev line from Baltimore to Washington.

This is what politicians, even supposedly fiscally conservative ones like Hogan, do: go for the glory rather than the mundane. That’s why Trump’s infrastructure plan should, but doesn’t, dedicate funds to maintenance rather than new construction. That’s why infrastructure should be funded out of user fees rather than taxes. Unfortunately, for too many the only lesson of the Baltimore Metro line is that someone else ought to pay more money to keep it running.

Privatizing Puerto Rico Power

Many Puerto Ricans are still without power after Hurricanes Irma and Maria knocked out the island’s electric grid in the Fall. The federal government has poured in resources, but there are still hundreds of thousands of people without power. The sad episode has highlighted the gross failings of Puerto Rico’s government-owned electricity infrastructure. 

Even before the hurricanes, the power grid in Puerto Rico was in bad shape. A 2016 audit of the state-owned Puerto Rico Electric Power Authority (PREPA), found that “transmission and distribution systems are falling apart quite literally: they are cracking, corroding, and collapsing.” The audit found very old and dilapidated assets, and also that the utility has inexperienced staff, terrible record keeping, and a vastly bloated bureaucracy. PREPA has had a poor environmental record, and its power systems have constantly broken down, causing costly forced outages.

Before his resignation in November, the head of PREPA indicated that a “transformation plan” was in progress. But the bankrupt government company has no way to pay for modernization since it is heavily indebted and its finances are a shambles.

The good news is that Puerto Rico’s Governor, Ricardo Rossello, has unveiled a plan to privatize PREPA. Calling the company “a heavy burden on our people, who are now hostage to its poor service and high cost.” PREPA, he said, “does not work and cannot continue to operate like this.”