November 2020

November 30, 2020 7:47PM

Supreme Court Rules that Constitution Matters, Even in a Pandemic

Late on the night before Thanksgiving, the Supreme Court granted an injunction against New York State’s restriction on religious services, with 10- or 25- person occupancy limits depending on whether the gathering is in a “red” or “orange” zone, respectively, according to viral prevalence. Although the justices split 5–4, with Chief Justice John Roberts voting to deny the injunction on a technicality, it seemed like a no‐​brainer: houses of worship were treated differently than many similarly situated secular facilities, so the state executive order couldn’t stand as a basic First Amendment matter (and also equal protection, though the Court didn’t discuss that framework).

I called it a “Thanksgiving miracle,” with the Court finally pushing back on expansive and arbitrary COVID‐​era restrictions rather than blindly deferring to government officials. Then I went on to enjoy the long holiday weekend—Thanksgiving is my favorite holiday—with minimal time on social media or reading anything work‐​related.

So it was with sadness if not surprise that I discovered that the last few days have seen an explosion of anger and disbelief from progressives, academics and Twitter trolls alike. The criticisms seem to boil down to two major lines of attack: (1) the Court is privileging religion over everything else; and (2) the Court isn’t taking the pandemic seriously, or is substituting its own ill‐​considered scientific views for those of expert health officials. And overarching both of these points is the construct through which many on the left now view the High Court: that a conservative majority is simply imposing its ideology, regardless of what law or precedent might dictate.

Those arguments betray a misunderstanding of Roman Catholic Diocese of Brooklyn v. Cuomo—not surprising given how fact‐​specific most pandemic‐​related cases are—and read more into it than what it actually says. They also probably extrapolate from Justice Neil Gorsuch’s provocative concurring opinion, with which I ultimately agree but which isn’t necessary to decide the case (which is why it’s a concurrence). Let me explain.

Of the 33‐​page document the Court released on All Turkeys’ Eve, barely more than six pages constitute the actual per curiam (“by the court”) opinion. It’s a very streamlined analysis—as one might expect in response to an application for injunctive relief pending appeal (not a fully briefed and argued case on the merits)—that makes the following simple points:

  1. “[T]he regulations cannot be viewed as neutral because they single out houses of worship for especially harsh treatment.” That’s because, in the red zone that limits worshippers to barely a minyan, “essential” businesses like acupuncture facilities and chemical manufacturers are not limited at all. And in the orange zone, limiting congregants to 25, even “non‐​essential” businesses can decide their own limit.
  2. Since the rules aren’t religiously neutral, they’re subject to “strict scrutiny,” meaning they have to be narrowly tailored to achieve a compelling public interest. Contrary to some commentary I’ve seen, the Court fully accepts that “[s]temming the spread of COVID–19 is unquestionably a compelling interest.” But the problem is that New York’s rules are an outlier, “far more restrictive than any COVID–related regulations that have previously come before the Court, much tighter than those adopted by many other jurisdictions hard‐​hit by the pandemic, and far more severe than has been shown to be required to prevent the spread of the virus at the applicants’ services.” Not only is there no evidence that either the Diocese of fellow applicant Agudath Israel have contributed to the spread of COVID–19 — the record shows they’ve taken safety precautions beyond anything required before this latest lockdown — but “there are many other less restrictive rules that could be adopted to minimize the risk to those attending religious services,” such as percentage‐​capacity limits.
  3. There is irreparable harm to religious believers from being unable to attend in‐​person services; it’s uncontroversial that even a temporary loss of First Amendment freedoms is a serious problem.
  4. There is no harm to the harm to the public interest from granting the injunction because “the State has not claimed that attendance at the applicants’ services has resulted in the spread of the disease. And the State has not shown that public health would be imperiled if less restrictive measures were imposed.”

In short, the justices in the majority, while accepting that they “are not public health experts” and fully respecting “the judgment of those with special expertise and responsibility in this area,” still had to hold public actions to the constitutional fire—and in this case found them wanting. “[E]ven in a pandemic, the Constitution cannot be put away and forgotten.”

Chief Justice Roberts, for his part, did not take issue with any of the above analysis, noting that “capacity limits of 10 and 25 people, depending on the applicable zone, do seem unduly restrictive. And it may well be that such restrictions violate the Free Exercise Clause.” But the reason he would’ve denied the injunction is that, after the Diocese and Agudath Israel asked the Supreme Court for relief, the governor revised his zones such that none of the houses of worship involved in this case were subject to those restrictions. “It is not necessary,” Roberts concluded in his typical minimalist manner, “for us to rule on that serious and difficult question at this time.”

The majority responds to that prudential argument by saying that “injunctive relief is still called for because the applicants remain under a constant threat that the area in question will be reclassified as red or orange.” In other words, the case isn’t moot. Indeed, Governor Andrew Cuomo “regularly changes the classification of particular areas without prior notice”—eight times in the previous five weeks. There’s a very strong likelihood that the issue could arise again, so it’s important to decide the issue (at least pending appeal) now.

Some have pointed to the following passage from Justice Gorsuch’s concurrence as evidence of at least his glib disregard for the seriousness of the situation: “So, at least according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians. Who knew public health would so perfectly align with secular convenience?”

But Gorsuch isn’t saying that the state’s police power can never be used to close churches, or that he knows better than public health officials what a reasonable or necessary restriction is to slow viral spread. He’s just saying that the rules have to apply equally to all—and that courts have been too deferential to executive officers who “have asserted the right to privilege restaurants, marijuana dispensaries, and casinos over churches, mosques, and temples.”

It’s the arbitrariness of the essential/​nonessential distinction that’s the problem, not the closings. As he concludes, “while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color‐​coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques.”

For his part, Justice Brett Kavanaugh goes out of his way to say that “the COVID–19 pandemic remains extraordinarily serious and deadly” and that he doesn’t “doubt the State’s authority to impose tailored restrictions—even very strict restrictions—on attendance at religious services and secular gatherings alike.” But here the restrictions aren’t tailored to the circumstances, particularly in light of the constitutional rights involved. Even if New York’s rules require movie theaters and certain other spaces to remain completely closed, “under this Court’s precedents, it does not suffice for a State to point out that, as compared to houses of worship, some secular businesses are subject to similarly severe or even more severe restrictions.”

There’s a further important back‐​and‐​forth among the justices about the meaning of Chief Justice Roberts’s concurrence in South Bay Pentecostal Church v. Newsom, deferring to California’s governor on religious‐​service restrictions in the early months of the pandemic. Courts have cited that squib of an opinion 114 times to support various lockdowns but, as Josh Blackman put it, “the 115th citation sank it.” I’d say more on that — the chief justice himself wrote in Diocese of Brooklyn that courts have been reading his South Bay words too expansively, but this post has already gone on too long.

The main point is that, as I wrote in my essay “State Police Powers and the Constitution”— part of Cato’s Pandemics and Policy series—“State and local officials have broad power to govern for public health and safety, but there are limits—for example, on the powers themselves and who exercises them.” Moreover, measures that are reasonable in the rapid response to the start of an emergent health crisis with a lack of epidemiological data will often prove unreasonable once we have a better understanding of the challenges.

Blunderbuss shutdown orders have overstayed their constitutional welcome and it’s great to see the Supreme Court’s starting to guard the guardians. To quote my favorite line from Justice Gorsuch’s Diocese of Brooklyn opinion, “Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical.”

Postscript: On Sunday, France’s highest court ordered the government to review a law limiting church attendance to 30, saying the restriction wasn’t proportionate to the risk of COVID-19 transmission.

November 30, 2020 10:11AM

The Trade Policy Views of Biden’s CEA Picks

By Simon Lester and Alfredo Carrillo Obregon

It is commonly said that "personnel is policy," which can make it worthwhile to look in depth at the views of key people appointed by a president.

The Council of Economic Advisers (CEA) is an agency within the Executive Office of the President that advises the President on economic policy. This post looks at the trade policy views of the three people Biden has just announced for the CEA: Cecilia Rouse (Chair), Heather Boushey and Jared Bernstein. (Of the three, Bernstein has had by far the most to say on trade policy.)

Based on the quotes we offer below, none of them seem to have Trump's deeply ingrained protectionist views (e.g. none declare themselves to be "a tariff man", or woman as the case may be), but they all have varying degrees of skepticism about trade liberalization and trade agreements.

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November 27, 2020 9:42PM

The Libertarian, Progressive, and Conservative Constitutions

Earlier this year, the National Constitution Center commissioned a constitution drafting project, with teams of constitutional scholars tasked with creating a new U.S. Constitution, or updating the existing one, according to libertarian, progressive, and conservative visions, respectively. In addition to the actual draft constitutions, we each submitted explanatory essays that summarized our approaches and noted key innovations. Here's a summary of what we did, followed by some concluding thoughts about this experience. (Full disclosure: The project was suggested and underwritten by Cato board member Jeff Yass.)

I led Team Liberty (as we called ourselves), joined by Tim Sandefur of the Goldwater Institute (and a Cato adjunct scholar) and Christina Mulligan of Brooklyn Law School. This was probably an easier project for us than for our counterparts because the current Constitution is fundamentally a libertarian or, more precisely, classical liberal document. So much so that, at the outset, we joked that all we needed to do was to add “and we mean it” at the end of every clause. As we put in our introduction, however

many parts of our fundamentally libertarian constitution, particularly those that limit federal power, have been more often ignored, or cleverly evaded, than honored, especially by court decisions that have perverted the actual meaning of the document’s text. Our task was therefore largely to clarify and sharpen those provisions—most notably the Commerce Clause, which has been transformed by legal interpretation into a charter of expansive federal power far beyond what the framers envisioned.

Of course, there have been some developments in the 230 years since the original Constitution and Bill of Rights took effect and the 150 years since the post-Civil War amendments were ratified, that have demonstrated certain deficiencies from a libertarian perspective. Out-of-control spending necessitates a balanced budget requirement (except in emergencies). Today’s imperial presidency militates for a reweighing of checks and balances. We also couldn’t help but add in a few “and we mean it” provisions just to be safe, as well as certain liberty-enhancing reforms suggested by such scholars as Randy Barnett and Milton Friedman.

We also circumscribed executive power (as did the other groups in certain ways), including by allowing for impeachment of federal officials for "behavior that renders them unfit for office." We made sure that Congress couldn't coerce the states -- the states are allowed to choose block grants instead of federal funding with regulatory strings -- while a supermajority of the states can reverse a federal law or regulation. And we strengthened or made more explicit what we now consider to be protections under the First, Second, Fourth, Fifth, and Sixth Amendments, as well as -- my favorite -- protecting the right to the “fruits of one’s labors” and adding a catch-all “right to live a peaceful life of one’s choosing.” You can read our constitution here.

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November 25, 2020 3:58PM

Government Spending Down, GDP Up

The Bureau of Economic Analysis issued revised national income accounts today, and the figures shed light on whether more government stimulus makes sense. Many economists, pundits, and policymakers claim that Congress needs to pass another large spending bill to sustain growth. The idea is that the economy is a car and spending by the U.S. Treasury and the Fed is the gas pedal.

However, the new economic data suggest that there is more to growth than a government gas pedal.

The chart below shows the quarter‐​to‐​quarter change in nominal or current‐​dollar GDP and total federal, state, and local government spending over recent quarters. GDP is from Table 1.1.5 and government spending is from Table 3.1.

In the second quarter, GDP fell 9.5 percent while government spending rose 45.7 percent. In the third quarter, GDP shot back up 8.4 percent even as government spending fell 11.3 percent. Unemployment benefits and other government transfers are falling, state and local government employment is down, but the economy is in robust recovery.

It is true that government spending in the third quarter was still at an elevated level. But the data does suggest that as we shrink government spending, the economy will continue to expand. The economy is not a car that needs government fuel, but an organism that adapts, improves, and grows automatically when the government leaves it alone.

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November 25, 2020 2:37PM

Life, Liberty and M*A*S*H

Alda Farrell Morgan

The TV sitcom M*A*S*H has been described as television’s finest half‐​hour. The 1972–1983 series, set at a Mobile Army Surgical Hospital near the front lines of the 1950–1953 Korean War, blends black comedy and wartime/​medical drama to both entertain and stir the sentiments of viewers.

Over at Liberty Fund’s Econlog blog, I’ve been arguing that M*A*S*H does something else: champion classical liberal principles. From opposition to war, to skepticism of government power, to support of economic freedom, to advocacy of other civil liberties such as free speech and respect for the individual, the show has much to offer libertarians and other classical liberals.

Liberty Fund initially published my M*A*S*H essay in a series of installments. Now it is available as a single essay on the organization’s Library of Economics and Liberty website. If you’d like to read it, you can find it here.

November 25, 2020 11:52AM

Noncitizens Don’t Illegally Vote in Detectable Numbers

One of the most frequent and less serious criticisms that comes across my desk is that immigration is bad because non‐​citizens vote illegally in such large numbers that sway elections. A new report by James D. Agresti, pushed by some news outlets, argues that the number of noncitizens who illegally voted in 2020 substantially increased Biden’s vote share but did not affect the outcome of the election. It has been illegal for non‐​citizens to vote for federal elected officials since 1996, so these noncitizen voters would all be breaking federal law. Is the Agresti paper reliable? Are large numbers of noncitizens voting in federal elections to such an extent that several states voted for Biden as a result?

No, but to understand why you have to follow how the Agresti paper arrived at its conclusion. The Agresti report relies on a peer‐​reviewed academic paper by political scientists Jesse T. Richman, Gulshan A. Chattha, and David C. Earnest that was published in 2014 that estimates the rate at which noncitizens voted for president in 2008. Their paper relies upon responses to the Cooperative Congressional Election Study (CCES) for the 2008 election that found a substantial proportion of noncitizens voted in that year. The Agresti paper combined two figures from the Richman, Chattha, and Earnest paper to get their primary estimate that 15.8 percent of non‐​citizens voted in 2008. Agresti then apples that 15.8 percent rate to the non‐​citizen population in swing states in 2020 to reach their conclusion.

The big problem, as explained in two succinct pieces, is that non‐​citizens voting illegally is a small subset of a small population of Americans measured in the CCES survey. In the CCES survey, as in any survey, a certain number of respondents click the wrong box. Thus, some respondents will incorrectly click that they are non‐​citizens by accident and that they voted. Or they will make any number of other errors. This general problem is called measurement error and it afflicts every survey. These errors are common in surveys, but if it surveys enough people and there isn’t a tragic flaw in design that causes large numbers of people to make the same error, then it doesn’t matter much for the final result.

The problem is that the authors focused on a small number of non‐​citizens in a very large survey that likely accidentally said they were noncitizens who voted when they were really citizens who voted. The CCES survey asked about 20,000 people how they voted and about 19,500 of them said that they were U.S. citizens. Since the CCES is about federal elections, it oversamples citizens who can vote and under sample non‐​citizens who can’t vote. In fact, the number of reported non‐​citizens in the CCES survey who said they voted in a federal election is just about exactly the number who should have misidentified themselves as non‐​citizens in such a large survey:

This problem arises because the survey was not designed to sample non‐​citizens, and the non‐​citizen category in the citizenship question is included for completeness and to identify those respondents who might be non‐​citizens. We expect that most of that group are in fact non‐​citizens (85 of 105), but the very low level of misclassification of citizens, who comprise 97.4 percent of the sample, means that we expect that 19 “non‐​citizen” respondents (16.5 percent of all reported non‐​citizens) are citizens who are misclassified. And, those misclassified people can readily account for the observed vote among those who reported that they are non‐​citizens [emphasis added].

Survey misuse, misdesign, and misinterpretation is a serious problem that we all witnessed right after the 2020 election. This strain of research appears to be another instance of that. There are likely many problems with America’s voting system and there is no doubt that a non‐​zero number of non‐​citizens illegally voted, but there is no good evidence that noncitizens voted illegally in large enough numbers to actually shift the outcome of elections or even change the number of electoral votes.

November 24, 2020 2:05PM

Amtrak Continues to Lie

Amtrak is maintaining the twin fictions that subsidies from state taxpayers are “passenger revenues” and that depreciation isn’t a real cost even though its accountants list it as an operating cost on its consolidated financial statements. Based on these fictions, Amtrak claimed that it was “on track to break even financially for the first time in its history” in 2020.

The pandemic derailed that fantasy, so now Amtrak claims that it lost $801 million in fiscal year 2020 (which for Amtrak ended on September 30). Yet a close look at its unaudited end‐​of‐​year report reveals that the actual operating losses were well over $2 billion.

The end‐​of‐​year report says that Amtrak received $342 million in state operating subsidies, up $110 million from 2019. It counts these as passenger revenues even though most of the passengers on state‐​supported trains would never have ridden those trains if they were asked to pay the full fares.

Counting these subsidies as revenues allowed Amtrak to claim that its net income was minus $801 million. However, it then adds depreciation and a few other costs, bringing the loss to $1.69 billion. Depreciation in 2020 grew to $926 million, up by $50 million from 2019, suggesting that Amtrak’s physical plant is deteriorating faster than ever.

To partly offset depreciation, Amtrak adds amortized state capital subsidies of $133 million to operating revenues. Yet this is just another subsidy, not a revenue. When all state subsidies are deducted from revenues, Amtrak’s total loss in 2020 was $2.17 billion. This doesn’t count actual capital spending, which was $1.9 billion, up from $1.6 billion in 2019. Amtrak therefore cost taxpayers $4.1 billion in 2020.

Ridership and passenger miles were both approximately half of what they were in 2019. The pandemic only affected half of Amtrak’s fiscal year, but ridership during that half was just 4 percent of 2019 levels.

Amtrak continues to pitch for a $2.9 billion bailout for 2021 on top of the $2 billion it normally gets from Congress. By comparison, the airlines have asked for a $28.8 billion bailout for 2021, about ten times as much as Amtrak wants. But the airlines normally carry more than 100 times as much passenger travel as Amtrak.

Neither bailout happened this year due to Republican opposition. There is significant opposition to another airline bailout. We can only hope that opposition will carry over to Amtrak as well.