January 7, 2021 3:54PM

Impeachment, the 25th Amendment and Trump’s Final Days

We started the week with an impeachment debate that looked like a rewarmed version of the one we had last year. “Read the transcript!”: when President Donald Trump got on the phone Saturday to lean on Georgia election officials, was it another “perfect call” or a second, sordid shakedown attempt?

By yesterday afternoon we were in entirely new territory: a violent mob storming and trashing the Capitol, four dead, guns and explosives seized, Congress evacuated, Vice President Mike Pence fleeing a mob inspired by the president’s tweets. “We will never concede,” Trump fumed at the pre‐​riot rally, “you don’t concede when there’s theft involved. Our country has had enough. We’re not going to take it any more.… if you don’t fight like hell, you’re not going to have a country any more.” Howard Beale only asked people to yell out of their windows, and he didn’t have nuclear weapons.

Mostly Peaceful

As of Wednesday night there were at least 32 House Democrats publicly calling for a second impeachment. Though both houses are supposedly done working until after inauguration, an article of impeachment has already been drafted for circulation. And today, the incoming Senate Majority Leader called on Pence and the Cabinet to trigger the 25th Amendment and remove Trump from power.

Can either of those things be done? Both? How might the Constitution’s presidential defenestration provisions work here? Let’s take a look.

First, impeachment: the article of impeachment being circulated now charges Trump with making “statements that encouraged—and foreseeably resulted in—imminent lawless action at the Capitol.” Is incitement to riot an impeachable offense? Yes: it’s not even a hard question.

“High Crimes and Misdemeanors” is a broad term designed to reach serious misconduct that demonstrates unfitness for high office: not just criminality or abuse of official power but, as the Nixon‐​era House Judiciary Committee report on “Constitutional Grounds for Presidential Impeachment” put it, conduct “grossly incompatible with the proper function and purpose of the office.”

In fact, the first impeachment case to result in conviction and removal from office, Judge John Pickering (1803) involved a federal judge whose main offense was showing up to work drunk and behaving in a “profane and indecent manner … degrading to the honor of the United States.” The 10th article of impeachment against President Andrew Johnson, approved by the House in 1868, charged the president with “a high misdemeanor in office” based on a series of “intemperate, inflammatory, and scandalous harangues” he’d delivered in an 1866 speaking tour. And Johnson didn’t incite a riot.

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January 7, 2021 11:44AM

Mob Rule Is No Path to Liberty

Yesterday, Congress was violently disrupted as it performed its constitutional duty. This was a direct attack on the Constitution of the United States, the rule of law, and our constitutional republic.

For more than two months President Trump has claimed, without plausible evidence and through multiple recounts and court cases, that he won the presidential election. As Cato scholars and many others have explained, the president’s attempts to overturn the election are factually and legally baseless. His allegations of fraud have been consistently rejected by courts, state legislatures, governors and secretaries of state, and members of both parties in Congress.

Despite this, the president has persisted, and too many members of Congress have echoed his claims. By doing so, they have helped stoke the flames of distrust and division in ways that present a profound threat to liberty, and they must bear some responsibility for the actions that have followed.

Our colleague Walter Olson wrote in June, during protests against police violence, “It should not be that hard to distinguish between peaceful, lawful assembly in pursuit of political causes, on the one hand, and property destruction, assault, intimidation, looting, and riot, on the other.” This remains true.

The violent disruption of constitutional processes is unacceptable and must be rejected unequivocally. Mob rule is no path to liberty. Attempting to forcibly keep a defeated president in power strikes at the core of the Constitution’s provisions for protecting the rights and liberties of the American people.

The Cato Institute has long worked to encourage people everywhere to better understand and appreciate the principles of government that are set forth in America’s Founding documents. Among these principles is the peaceful transfer of power after free and fair elections. The assault on the Capitol is a tragic violation of these principles. We condemn these actions in the strongest terms, support the rule of law and the Constitution, and reject the attempts to overturn the results of the 2020 presidential election.

Having had his day in court, the president must stop disputing the election results and prepare immediately for the transition. We urge all elected officials to condemn lawlessness and violence and to commit to the truth, the Constitution, and the peaceful transfer of power.

January 5, 2021 2:31PM

Immigration Restrictionists Are Undermining American Institutions

Benjamin Powell and I wrote our book Wretched Refuse? The Political Economy of Immigration and Institutions to address the argument that liberalized immigration will undermine the very American institutions that created economic prosperity that attracted immigrants here in the first place. Immigrants generally come from countries with political, cultural, and economic institutions that are less conducive to economic growth than those in the developed world. The fear is that they’d bring those anti‐​growth institutions with them. Thus, as their argument goes, the estimated enormous economic gains from liberalized immigrants are a deadly mirage and immigrants could actually kill the goose that lays the golden eggs. As we assiduously document, immigrants do not bring those institutions with them and there is even evidence that immigrants improve institutions after they immigrate.

It’s ironic that the immigration restrictionists most worried about immigrants degrading American institutions are attacking those very institutions at every level. After President Trump lost his reelection bid, the most nativistic members of his party have embarked on a quest to reverse the election. A dozen Republican Senators, mostly those supportive of cutting legal immigration, plan to object to the certification of Biden’s win over Trump. Over 100 representatives could join in too. President Trump cut legal immigration more than any other president and he recently threatened Georgia election officials.

Immigration restrictionists have also attacked the institution of private property. The Trump administration has seized or is trying to seize 5,275 acres of privately owned land to build a border wall, most of it in Texas. Trump even diverted Congressionally appropriated funds from the military to build the border wall. Customs and Border Protection even took Congressionally appropriated funds intended to help asylum seekers and spent it on other items like dirt bikes in violation of the law. Florida saddled businesses and employees with an E‐​Verify regulatory mandate that further erodes the freedom to contract. 

Immigration restrictionists have also attacked some important components of our culture, such as respect for honesty. They’ve lied about the family member of a Georgia election official to cast doubt on his handling of the election. Many in Trump’s orbit are also conspiracy theorists or work with them at every opportunity. Making up stories to tarnish your opponents and believing in nutty conspiracy theories both break down trust in institutions, which is exactly what some nativists claim immigration does to the United States.

Some immigration restrictionists have also called for massive infringements on our civil liberties to keep President Trump in office. Retired General Michael Flynn even called for the president to declare martial law and for the U.S. military to re‐​run the 2020 election, which alarmed Army officials enough to prompt them to declare that the military will not do that. They want to curb immigrant civil liberties, especially those of free speech, in order to preserve our institutions … except for free speech.

Many people are worried that immigrants will undermine American political and economic institutions. Our new book argues that they do not undermine economic and political institutions and that, even in some cases, they build them up. But immigration restrictionists continue to insist that immigrants represent a fundamental threat to our political and economic institutions. Like the babysitter in the famous urban legend, we just realized that the call is coming from inside the country. Immigrants are not the threat to our institutions, immigration restrictionists are.

January 5, 2021 1:48PM

It’s Time to Stop Protecting Unconstitutional Judges

Willie Carr and John Davis are both social security claimants whose applications for disability payments were denied by administrative law judges (ALJs) of the Social Security Administration (SSA). Those ALJs, like all social security ALJs at the time, were hired by agency staff members with no involvement from the social security commissioner. A short while after Carr and Davis had their claims denied, the Supreme Court decided Lucia v. SEC (2018), holding that ALJs of the Securities and Exchange Commission are “officers of the United States” and must be appointed in the manner that the Constitution’s Appointments Clause requires—by the president, the head of their department, or a court.

In light of Lucia, there’s no dispute that Social Security ALJs are also “officers of the United States” and that their hiring by agency staff violated the Constitution. The SSA admitted as much when the commissioner attempted to rehire all the ALJs herself. The ALJs who decided Davis and Carr’s claims were thus appointed improperly, and the remedy for that defect is normally a new hearing before a properly appointed ALJ.

But when Davis and Carr asked for a new hearing before a new ALJ, both of their requests were denied. The Eighth and Tenth Circuits, respectively, both held that they had waived any right to raise an Appointments Clause objection in federal court because they had not raised it during their hearings before the improperly appointed ALJs themselves. In administrative law parlance, the courts held that Davis and Carr were barred by the doctrine of “issue exhaustion,” a theory that an issue must be raised at every stage of an administrative process to receive judicial review.

Both Davis and Carr appealed to the Supreme Court, which granted and consolidated their cases. The Cato Institute has joined the New Civil Liberties Alliance to file an amicus brief supporting them. As explained in our brief, there is no federal statute or regulation preventing courts from considering issues not raised in a social security hearing. Creating a judge‐​made bar to such claims is particularly inappropriate here because the SSA specifically told its ALJs not to address any Appointments Clause arguments if they were raised. It thus wouldn’t have made any difference if Carr and Davis had raised the issue in their ALJ hearings.

Further, issue exhaustion rules are only appropriate for issues where, at a minimum, an administrative agency possesses the expertise and fact‐​finding ability to act in the role of a court of first review. That’s not the case here; non‐​adversarial social security hearings are not designed to review questions of constitutional law, and social security ALJs profess no expertise on the subject.

Davis and Carr raised their Appointments Clause issue as soon as they reached federal court, and that should have been enough for their claim to be addressed on the merits. The Supreme Court should reverse the Eighth and Tenth Circuits and hold that judge‐​made issue exhaustion is inappropriate for the type of structural constitutional claims that Carr and Davis have raised.

The case Carr v. Saul will be argued at the Supreme Court in early March.

January 5, 2021 12:06PM

American Pharmaceutical Resilience

Shortly after the COVID-19 outbreak began last year, numerous politicians and pundits proclaimed that the pandemic revealed massive vulnerabilities in global supply chains for essential medical goods — vulnerabilities that imperiled Americans’ health and national security and therefore necessitated major government interventions (read: subsidies and protectionism) to bolster U.S. supply chain “resiliency.” Pharmaceuticals, in particular, topped the list of medical goods that required government action, and the alleged threat to American pharmaceutical access — supposedly dependent on China and India — was so dire that the Trump administration fast‐​tracked hundreds of millions of dollars in federal support to domestic producers of drugs and raw materials in order to “reduce reliance on other countries for drugs.”

At the time, I and others noted repeatedly that, while there were some gaps in the public data, the information we had on U.S. pharmaceutical production, R&D, and trade did not indicate a forthcoming pharmaceutical crisis. Now, the nonpartisan United States International Trade Commission has provided additional data in a massive new report on “U.S. industries producing COVID-19 related goods and the supply chain challenges and constraints that impacted the availability of such goods,” which for the most part confirms that our skepticism was warranted.

The report overall reveals a far more complicated and benign picture of the medical goods situation in the United States — one characterized by unprecedented supply and demand shocks, as well as substantial domestic resources (especially for pharmaceuticals, medical devices, and N95 masks), quickly‐​adapting domestic and international supply chains, and beneficial global specialization and cooperation. It’s a great resource for those interested in manufacturing issues, and should help to inform the broader debate in Washington about the pandemic, supply chain resiliency, and national security.

The report also should temper specific concerns about the pharmaceutical supply chain, which the USITC finds worked quite well during the once‐​in‐​a‐​generation pandemic due in part to its globalized business model (emphasis mine):

The United States has a large, geographically diverse pharmaceutical industry with established supply chains that proved resilient during the first half of 2020. The flexibility and number of manufacturing sites inherent in the global footprint of the pharmaceutical sector allowed firms to respond relatively quickly to demand and deliver additional medicines to aid in the response to the pandemic… The U.S. industry, which comprises companies ranging from large multinational firms to small and medium‐​sized firms (SMEs), was operating at almost full capacity in the second quarter of 2020 to meet demand. These supplies were delivered via the existing wholesale distribution network.…

The Commission’s report also details the immense size and scope of the U.S. pharmaceutical industry (which has supposedly shriveled due to globalization) — nearly 5,000 establishments spanning numerous states and all stages of production (upstream, downstream, and “fill and finish”); increasing shipments that reached $268.7 billion in 2019; and an expanding workforce that hit 310,000 workers in early 2020. The report further notes that U.S. manufacturers responded to the pandemic by substantially increasing pharmaceutical shipments (even while bringing new COVID-19 products to the market) because they maintained their own “emergency plans” to utilize significant available inventories, different production sites, or contract manufacturers. Finally, the USITC report shows that some of the industry’s resilience has stemmed from its diverse foreign sourcing of raw materials and finished products, while noting that China and India are significant (but not dominant) suppliers — essentially confirming my analysis of the import data earlier this year.

For those (like me) who have been fascinated by the COVID-19 vaccine rollout in the United States, the USITC’s conclusions about the pharmaceutical supply chain’s resilience during the pandemic shouldn’t come as much of a surprise: Pfizer, for example, utilized its existing U.S. manufacturing capacity, as well as other domestic and international resources (not to mention lots of immigrants), to test and produce millions of vaccine doses with unprecedented speed. Moderna, meanwhile, has relied on smaller in‐​house facilities and a partnership with a large Swiss pharmaceutical manufacturer, which has production sites in the United States and Switzerland. As a result of these and other multinational efforts, the vaccine bottlenecks we’re now experiencing have been related to government distribution, not private sector production, of finished doses. (Lessons abound.)

Still, the USITC report has a wealth of new data and is especially welcome given the incoming Biden administration’s plans to “rebuild” American pharmaceutical supply chains through top‐​down mandates like the Defense Production Act. Surely, the pandemic has put real strains on Americans’ access to essential medical goods as demand skyrocketed and supply raced to catch up, and it’d be good for the country to get a better handle on the virus and vaccine distribution. But the pharmaceutical supply chains themselves have fared pretty well so far, and there’s little evidence that government could improve them.

January 4, 2021 5:15PM

Telehealth in the Time of COVID-19

By Jeffrey Miron and Erin Partin

A new year means a flurry of new legislation at the state and local levels. This year, as the Covid‐​19 pandemic continues to rage, Massachusetts Governor Charlie Baker signed a new health care bill that, among other provisions, expands access to telehealth services.

The use of telehealth visits has increased dramatically during the COVID-19 pandemic. One CDC report finds a 154 percent increase in telehealth visits in the last week of March 2020 (the latest available data) compared to the same week in 2019. More recent data, when available, will almost certainly show similar increases.

Promoting the use of telehealth services, particularly during a global pandemic, is a laudable goal. However, it is less clear that a state mandate that insurance companies provide telehealth coverage is the appropriate course of action. States should strive to eliminate restrictions on telehealth, not impose new burdens. Absent regulatory barriers restricting the provision of telehealth services, insurers, providers, and patients all have incentives to shift towards more telehealth services. Patchwork state laws and arbitrary barriers, including restrictions on cross‐​border telehealth, are the impediments to widespread adoption of telehealth, not insurance companies.

Nearly every state implemented changes to their telehealth requirements in response to the COVID-19 pandemic, but many of the accommodations have expired or are set to expire at the conclusion of the current health emergency. State legislatures should make these temporary allowances permanent and further remove regulatory barriers. Pandemic or not, telemedicine will play a larger role in the future, and lawmakers should promote – not discourage – its expansion.

January 4, 2021 4:58PM

Drug Lab Misconduct

By Jeffrey Miron and Erin Partin

In 2013, authorities arrested a chemist at a Massachusetts state drug lab for stealing drug samples, falsifying test results, and tampering with evidence. After a multi‐​year investigation, more than 35,000 drug convictions were dismissed and the state was forced to spend over $30 million in restitution and investigation costs.

Now, state officials believe another employee may have similarly tainted evidence.

Massachusetts is not the only state where misconduct by drug lab employees has occurred. Both Montana and California have documented cases of similar behavior. This misconduct has a direct impact on thousands of drug cases, not to mention the financial backlash to the state.

Yet this is a problem that doesn’t need to exist. Ending drug prohibition would eliminate the need for such labs, making it impossible for such misconduct and the associated costs to arise.