July 24, 2020 2:40PM

Are Surging State COVID-19 Cases Due to Early Reopening?

"How Coronavirus Cases Have Risen Since States Reopened" in The New York Times July 9 claimed, "Florida and South Carolina were among the first to open up and are now among the states leading the current surge. In contrast, the states that bore the brunt of cases in March and April but were slower to reopen have seen significant decreases in reported cases since. Average daily cases in New York are down 52 percent since it reopened in late May and down 83 percent in Massachusetts" (which reopened May 18).

The purpose of this note is to question whether or not it is accurate to simply attribute the "current surge" in cases or deaths to the "states first to open up."

The New York Times article showed the percentage changes in cases since reopening – the date when states "lifted order to stay at home or allowed major sectors such as retail, restaurants and personal care services to reopen either statewide or in most areas." Eight states "first to open up" reopened before May 1, twenty more before May 15, and twenty-two states were "slower to reopen" from May 15 to May 29.

Unfortunately, the author's main example – saying Florida was "among the first to open up" on May 4–puts that state into his middle group (May 2 to May 14). To keep 70% of Florida in the narrative (Southeast Florida remained closed), my Table defines early reopening as May 4 or earlier. I redefine late reopening to mean ten states (including D.C.) that reopened after May 20, because the author's May 15 definition of late is not much later than May 4. Reopening dates are from the New York Times article. Statistics on new cases per day from a recent 7 day average and on total deaths per 100,000 residents from the beginning were in nytimes.com on July 23.

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July 24, 2020 2:29PM

A Pod for Every Child

Peas in a pod - Nikon Corporation

There is a powerful tendency in education policy to immediately ask about any idea, “will it be equitable,” and condemn anything that looks like it might help wealthier people more than poor. It is a laudable instinct, but condemning parents–even rich ones–who are trying to do what is best for their children is divorced from human reality, and worse, seems geared more toward shaming the wealthy than empowering the poor.

Case in point, the response to the suddenly emerging phenomenon of education “pods,” small groupings of children and a teacher paid for by parents who want in‐​person education with minimized COVID-19 risk. A Washington Post report shone a light on this development last week, but more from an “is it fair” than an “interesting approach to dealing with COVID” perspective. Framed the headline, “For parents who can afford it, a solution for fall: Bring the teachers to them.” The Post has since run other pod pieces, featuring the following headlines:

Private ‘school pods’ are coming. They’ll worsen inequality


The huge problem with education ‘pandemic pods’ suddenly popping up

The problem dealt with in the latter: “these new pandemic education pods replicate white flight.”

As lamentable as it is when something exacerbates inequality, it is simply unrealistic to think parents with means will refrain from doing what they think is best for their kids. Heck, it is biologically ingrained. Nor should they be shamed for doing what they can for their children, especially when it comes to matters as important as health and education. They have a responsibility to do what is best.

Our inclination should not be to shame well‐​off families, perhaps in hopes they will feel sufficient social pressure not to pursue their plans. Instead, we should empower poorer families to seek out the best for their kids. They, too, are biologically driven to care for their children, and were education funding given to them instead of directly to public schools they could afford to create their own pods.

Nationally, we spend about $13,000 per public‐​school student, excluding capital costs. Were families with 10 children to receive that funding and pool it, they could pay a teacher up to $130,000 for the year – more than double the average public‐​school teacher’s base salary of about $62,000 and leaving ample money for benefits.

What about a high‐​cost place like Washington, DC?

The District of Columbia spends about $24,000 per student in current funds, which would allow a group of 10 to pay $240,000. The average DC public school teacher’s salary is around $78,000.

Our history provides more than ample reason to fixate on equity. But it is government that has driven much of the inequity we have seen, and it has especially dominated education—funding, running, and assigning people to schools—for well more than a century. It is time to do something different than lament the advantages of the wealthy. It is time to empower the poor to do the same things as the rich, by letting them control the funding that is supposed to educate their children.

July 24, 2020 12:46PM

The DEA’s Opioid Production Quotas Threaten Hospitalized Patients, Yet Supply of Street Fentanyl is Plentiful

The COVID-19 pandemic has placed another stumbling block in the way of the Drug Enforcement Administration’s futile effort to reduce the country’s drug overdose rate through quotas on the manufacture of all forms of prescription opioids.

The DEA’s annual quotas have brought production levels more than 50 percent below 2016 levels. But, in response to the COVID-19 pandemic, the agency increased this year’s quota by 15 percent, to allow drug makers to respond to pandemic‐​induced shortages. Intravenous opioids such as fentanyl are valuable tools used to manage patients on ventilators—as well as inducing general anesthesia—and the DEA recognized the pandemic would likely increase demand for such drugs. Unfortunately, the agency conflates prescription opioid pills used in the non‐​hospital setting with intravenous opioids like fentanyl and morphine, almost exclusively used in hospitals, when it adjusted the manufacturing limits.

This has generated a shortage of intravenous opioids, causing many hospitals to cancel or delay necessary procedures and has jeopardized the management of patients on ventilators, according to a July 22 report from the hospital policy group Premier.

This is not the first time that DEA opioid production quotas caused a critical shortage in hospitals. I wrote here about the shortage the agency helped create in 2018.

While hospitals and patients suffer from the DEA’s war on opioids, fentanyl and other IV opioids are plentiful on the street. We learned last week in a preliminary report by the Centers for Disease Control and prevention that drug overdose deaths increased from 67,367 in 2018 to 70,980 in 2019. And deaths attributable to fentanyl increased by 15 percent, from 31,529 in 2018 to 36,509 in 2019.

Policymakers continue to believe that reducing the prescribing of opioids will somehow lead to a reduction in their non‐​medical use, addiction, and overdose deaths. This false hope persists despite the fact that data from the CDC and the National Survey on Drug Use and Health show no association between prescription volume and non‐​medical opioid use or addiction.

The drug overdose crisis is caused by non‐​medical users accessing drugs in the dangerous black market that is fueled by drug prohibition. But drug prohibition doesn’t only harm non‐​medical drug users. It harms patients as well—including critically ill patients in hospitals.

July 24, 2020 12:39PM

CBP Internal Affairs Is Woefully Understaffed

In the last week, the public has learned that the Department of Homeland Security (DHS) has deployed 2,174 Customs and Border Protection (CBP) agents to Portland, Oregon and other American cities to help combat rioting there. While there are certainly major problems with public safety and property destruction in some of these cities, which should require a robust and legal law enforcement response, there are also many reasons to be worried about the deployment of CBP agents. One of them is that there is very little oversight of CBP law enforcement officers (LEOs) and a long history of disciplinary, performance, and corruption problems in their ranks.

CBP didn’t have an internal affairs department that could investigate criminal misconduct until 2014, 11 years after it was formed in 2003. The old internal affairs department that managed the Immigration and Naturalization Service was attached to Immigration and Customs Enforcement, another sub‐​agency under DHS, and another wasn’t created for CBP until 2014. Internal affairs officers, Office of Personnel Management occupation code 1811, weren’t hired in CBP until early in the fiscal year of 2015 according to OPM data. Still, they number very few on the ground. 

In 2019, CBP had 60,525 employees, 48,035 of whom were LEOs. In the same year, only 255 of them were internal affairs officers. That’s one internal affairs investigator for every 188 LEOs in CBP. By contrast, the New York Police Department (NYPD) has one internal affairs investigator for every 65 sworn officers, and the older internal affairs division at Customs before the 2003 creation of DHS had one internal affairs investigator for every 136 employees.

Since CBP is now enforcing laws against American citizens in the interior of the United States, it should at least have the same ratio of internal affairs officers to LEOs that the NYPD has. That would mean increasing the numbers of 1811 internal affairs agents to 739, a 2.9 fold increase over the current numbers. CBP should have to hire 484 internal affairs officers to investigate criminal complaints and hold CBP LEO’s accountable for their actions.

July 23, 2020 2:40PM

International Law and “Hate Speech” Online

From the beginning social media managers have excluded content from their platforms. At first they did so intuitively. Only a few people moderated content; like Justice Potter Stewart’s view of obscenity, “the new governors” of speech knew what to exclude when they saw it. As the platforms grew, such judgments seemed too subjective and opaque. Content moderation teams sought to formulate general rules, published as Community Standards, that could be consistently applied. Some also spoke of their company’s values, an effort to go beyond the judgments of this or that employee. Perhaps values were needed to turn the cold text of Community Standards into living guidelines accepted by all. The move from individual intuition to “accepted by all” bespoke a need for legitimacy. The rules and their application needed support from users and others outside the platform.

Economic success deepened the legitimacy problem and threatened the companies’ commitment to “voice” or free expression. The most successful companies, like Google or Facebook, had grown far beyond the United States. Their content moderators wondered whether their desire to protect speech reflected their cultural backgrounds as Americans. This belief ran counter to growing cultural relativism in the developed world: if all cultures were equal, why should U.S. free speech ideals be applied outside its borders? Maybe social media’s global expansion required less weight for voice and more for other values.

In any case, appreciation of “voice” was waning in American culture, if not in its legal system. Organized interests demanded social media remove speech that would be protected under the First Amendment. Social media were not obligated to observe the First Amendment; they were not the government. The demands for suppressing speech fostered continually evolving codes of prohibited speech for various platforms. The leaders of social media companies had long professed support for speech. If they meant those professions, social media leaders needed a globally acceptable foundation for Community Standards that protected speech. 

International law (and its subset, international human rights rules) offers a plausible answer to social media’s quandary. In 1948, the United Nations adopted the Universal Declaration of Human Rights. Most of that Declaration became legally binding when the UN General Assembly adopted two international human rights treaties in 1966: the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights. The U.S. ratified the ICCPR in 1992. I focus here on the ICCPR which purports to be law beyond borders, thus addressing one challenge for social media.

What about protections for speech? ICCPR’s Article 19 states “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” Insofar as social media looks to international law to inform their Community Standards, Article 19 commits them to strong protections for expression. But that’s not the whole story.

ICCPR also places positive obligations to limit speech on governments. Article 20(2) of the ICCPR states “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” In other words, Article 20(2) requires governments who adopt the ICCPR to prohibit “hate speech.” Social media are not governments, do not make law, and did not ratify the ICCPR. But Article 20(2) might be taken to legitimate social media “hate speech” rules. After all, Article 20(2) has been ratified by many nations.

But not all. For example, when the United States ratified the ICCPR, the Senate’s “advice and consent” was subject to a reservation: “That Article 20 does not authorize or require legislation or other action by the United States that would restrict the right of free speech and association protected by the Constitution and laws of the United States.” Belgium and the United Kingdom also limited the scope of Article 20(2) in defense of free expression. Other nations, like Australia, reserved a right not to introduce new legislation on “hate speech” and other issues. Indeed, many nations objected to many aspects of the ICCPR (here’s a list of nations and their objections).

Article 20(2) faces another problem in the United States. One scholar has noted, “Where U.S. duties under a treaty conflict with rights protected in the U.S. Constitution, rights in the Constitution must prevail.” In Reid v. Covert (1957), the Supreme Court said it “would be manifestly contrary to the objectives of those who created the Constitution… to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions.” The same Court “has consistently ruled that [hate] speech enjoys First Amendment protection unless it is directed to causing imminent violence or involves true threats against individuals.”

Where does all this analysis leave social media content moderators? Article 20(2) instructs governments to ban “hate speech”; U.S. courts say the government may not ban “hate speech” in the United States. Perhaps neither instruction matters; social media are not governments, properly understood, so they are not strictly obligated by either Article 20(2) or the U.S. Constitution. But both ICCPR and U.S. law suggest more broadly that “hate speech” bans are both legitimate and illegitimate, beyond borders and within one border, respectively. The implications for the legitimacy of content moderation are unclear.

Yet we are not done with international rules yet. In June 2011, the U.N. Human Rights Council endorsed “Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework.” These principles stipulate: “Business enterprises should respect human rights. This means that they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved.” Their “responsibility to respect” human rights “exists over and above compliance with national laws and regulations protecting human rights.” The rights in question may be found in several places including the ICCPR.

Article 20(2) requires action (not inaction) by governments. However, the section could be defined as a positive right to live under a government that has criminalized “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.” It requires no great leap of imagination to conclude that social media could respect that “right” by banning “hate speech” from their platforms.

At this point, international law seems like a dead end for free speech. Governments are required to prohibit a broad and ambiguous category of speech while businesses are instructed to “respect” a putative right to be free of “hate speech,” a demand that could support banning a wide range of speech. The U.S. legislature and courts do not recognize such required prohibitions, but their reticence does not obligate social media companies incorporated in the United States. The ICCPR does include Article 19 which offers strong words favoring free expression. (It also provides other reasons to restrict speech that I have not mentioned like reputation and national security, but these limits are less controversial than “hate speech”). But in practice the liberal words of Article 19 seem undermined by the illiberal demands of Article 20(2).

And yet we have not examined all of Article 19. Article 19(3) states that free expression may “be subject to certain restrictions, but these shall only be such as are provided by law and are necessary.” The U.N. Special Rapporteur on the promotion and protection of the right to freedom of expression and opinion has fashioned a tripartite test to apply the words “as are provided by law and are necessary” in Article 19(3). This test subjects a restriction on speech to three conditions: legitimacy, legality and necessity/​proportionality. Legitimacy means the restriction may only pursue a limited set of public interests specified in ICCPR. Legality means a restriction “must be provided by laws that are precise, public and transparent; it must avoid providing authorities with unbounded discretion, and appropriate notice must be given to those whose speech is being regulated.” Finally, necessity and proportionality means a limitation on speech must be “the least restrictive means” to achieve the aforementioned public interest. This prong of the test means a regulator must pursue its goals at the least possible cost to speech. Often other policies that take a smaller toll on speech are available to governments and perhaps to social media. Presumably, since no government indicated a reservation to Article 19(3), this tripartite test applies to all government restrictions on speech and should be respected by private businesses including social media.

Where does all this leave online speech? The ICCPR supports free expression, requires a ban on “hate speech,” and permits restrictions on speech in pursuit of a limited number of important public interests. All such restrictions on speech, public or private, must be legitimate, legal, and the least restrictive means to a legitimate end. But does the tripartite test matter?

Maybe. For example, the Special Rapporteur mentioned above noted that “‘Hate speech’, a shorthand phrase that conventional international law does not define, has a double ambiguity. Its vagueness and the lack of consensus around its meaning can be abused to enable infringements on a wide range of lawful expression.”(For this reason, I have put the term “hate speech” in quotation marks throughout this essay). The legality prong of the tripartite test condemns vague restrictions on free expression. What Article 20(2) of the ICCPR giveth, the tripartite test almost always should take away. Or so free speech advocates may hope, not least if they have anything to do with social media content moderation.

Such is the case that international law might protect speech online in ways that legitimate social media content moderation. I leave for another day (and another post) the validity of this case.

Thanks to Evelyn Aswad for comments on an earlier draft of this post. Professor Aswad’s scholarship on these topics may be found here. This paper will be especially interesting for readers thinking through the topics covered in this post.

July 23, 2020 2:17PM

Does the U.S. Semiconductor Industry Really Need Urgent Taxpayer Support to Stop China?

Today, the United States Senate approved the FY2021 National Defense Authorization Act (NDAA), which contains an amendment passed earlier this week, with little floor debate and by a 96-4 margin, that would provide billions of dollars in new federal support for the U.S. semiconductor industry, most notably tax credits and grants for the construction of new domestic manufacturing facilities. The House passed a similar bill with a similar amendment earlier this week, so the legislation now goes to conference, where the subsidies are expected to survive.  The two main reasons for the Senate and House amendments (formerly a standalone bill called the “CHIPS Act”), as helpfully summarized by House co-sponsor and Foreign Affairs Committee Ranking Member Michael McCaul (R-TX), are (1) to boost U.S. semiconductor manufacturing and jobs and (2) to prevent China from “dominating” the global semiconductor market:

Ensuring our leadership in the future design, manufacturing, and assembly of cutting edge semiconductors will be vital to United States national security and economic competitiveness. As the Chinese Communist Party aims to dominate the entire semiconductor supply chain, it is critical that we supercharge our industry here at home. In addition to securing our technological future, the CHIPS Act will create thousands of high-paying U.S. jobs and ensure the next generation of semiconductors are produced in the US, not China.

Similarly dire, China-centric statements have been issued by other supporters in Congress (see, e.g., these from Senators Doug Jones (D-AL), Tom Cotton (R-AR), or Chuck Schumer (D-NY)), most of whom – unsurprisingly – appear to have semiconductor manufacturers in their states or districts that stand to profit from the new taxpayer funds. (Schumer’s statement, in classic fashion, actually emphasizes how this cash will help New York companies.)

The congressional statements, urgency and near-unanimity would lead a casual observer to believe that the U.S. semiconductor industry is in a truly-desperate position, hobbled by a heavily-subsidized, globally dominant China and in dire need of a massive and immediate injection of government support. That would not, however, be the reality – even assuming (erroneously) that “reshoring” global supply chains advances actually national security. Instead, numerous facts and analyses show the U.S. semiconductor industry to be in pretty good shape and the Chinese industry – while certainly subsidized – to not be the dangerous juggernaut that our elected officials claim.

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July 23, 2020 10:06AM

The Murky Origins of the H-2B Program’s Prevailing Wage Rule

The Department of Labor (DOL) requires that businesses that hire workers under the H-2B program—America’s temporary worker program for seasonal nonagricultural jobs—pay a minimum wage known as the “prevailing wage.” This requirement substantially reduces the number of requests for H-2B workers. Yet Congress has never explicitly required employers to pay the prevailing wage to temporary nonagricultural workers, and agencies who invented the rule did so initially without publicly explaining it, making its origins mysterious.

What history is known is lengthy, complex, and bizarre. Not only does the rule not exist in statute, DOL itself never shows up in the statute either. Stranger still, despite the H-2B program tracing its origins to a 1952 law, no “prevailing wage” requirement existed in any formal regulation from any government agency for more than half a century. In 1952, the government proposed a prevailing wage rule, but then dropped it from the final regulations. Two years later, it formally revoked DOL’s regulatory authority over the nonagricultural program, yet the agencies continued to act as if this authority still existed for nearly a decade before the regulation was restored.

For 56 years, DOL determined the H-2B prevailing wage entirely under informal guidance documents, many of which are not publicly available. Even when the documents were public, they often did not provide enough detail to understand how the wages were determined. In 1998, for example, it implemented a skills-based methodology for the prevailing wage it never explained publicly in any form for more than a decade. Amazingly, for several years in the 2010s, DOL issued prevailing wage determinations using this methodology in violation to court orders to stop.

Even now, DOL still calculates the prevailing wage under a methodology that directly contradicts the plain language of a 2004 law restricting the methodology that DOL can use for prevailing wage determinations for any visa program. Its justifications for using the prevailing wage are not obvious logical outgrowths from any part of the law and contradict congressional intent.

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