Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘public health’

Reopen lawsuits, and their mixed outcomes

Lawsuits have been filed in many states challenging governors’ and mayors’ public health orders arising from the COVID-19 outbreak. I’m in the Frederick News-Post with a guest opinion piece on a judge’s rejection of the (unusually weak) Reopen suit in Maryland. Excerpts:

In some other states, challengers have won rulings striking down at least some portions of state stay-home orders. But this suit’s claims failed all down the line, and here’s why….

In Wisconsin, Oregon, and Ohio, challengers were able to convince judges that governors overstepped the authority granted under state emergency laws, which may require, for example, legislative say-so for an emergency order’s extension. But Maryland grants its governor broader power than many other states, one good reason being that ours is not a year-round legislature. The General Assembly has been adjourned for weeks and is not going to reconvene in Annapolis every 30 days — in the middle of a pandemic! — to give thumbs up or down on each Hogan order. Nor should it have to. The judge found Hogan had not overstepped Maryland law….

In some states, challengers have successfully argued that governors’ orders were too restrictive toward churches. Those claims failed here too.

Under the relevant standard, articulated by the late Justice Antonin Scalia in a 1990 Supreme Court opinion, neutral and general laws that burden religion do not violate the U.S. Constitution so long as 1) they are not improperly motivated by a wish to restrict religion, and 2) they do not arbitrarily restrict religious activity when genuinely similar non-religious activity is permitted. This court, like other federal courts, rejected the argument that if stores are to stay open to sell plywood or soft drinks, all other gatherings must be permitted as well. As the judge pointed out, the federal government’s own guidelines designate sale of food and cleaning supplies as essential. And shop-and-leave arrangements can be rationally distinguished from gatherings whose whole point is to congregate closely for a lengthy period. (Religious gatherings have been an important source of outbreaks both in the U.S. and abroad.)

Some other perspectives on Reopen litigation: Bonnie Kristian/The Week quoting me, Ilya Shapiro, Jacob Sullum, Larry Salzman/PLF; Lawfare resources on state emergency authorities and quarantine/isolation laws; NCSL on state law authority.

Filed under: , ,

Constitutional law roundup

  • Case reporting, contact tracing, location monitoring: “Disease Surveillance and the Fourth Amendment” [Alan Z. Rozenshtein, Lawfare]
  • Unanimous Supreme Court spanks Ninth Circuit for its attempt to use immigration-law case to bring up (admittedly interesting) issue that neither party had presented and was not necessary to resolve the dispute [Ilya Shapiro and Michael Collins on U.S. v. Sineneng-Smith: “Neither Party Is Right, But the Ninth Circuit Is Wrong”]
  • Judge Thomas Hardiman of the Third Circuit on the history of judicial independence [Cato audio]
  • “While many scholars have studied Erie v. Tompkins, few have studied the facts of the case, and none have questioned Tompkins’s account. This article argues that Tompkins and his witnesses were not telling the truth.” [Brian L. Frye, SSRN 2018]
  • Can procedurally valid constitutional amendments themselves be unconstitutional? [Mike Rappaport and followup post, both 2018]
  • And now for something completely different: “Ayn Rand, Gary Lawson, and the Supreme Court” [Balkinization symposium last summer on Ken Kersch book Conservatives and the Constitution, more; unrelated but also about Lawson]

Filed under: , , , , , , ,

“Third-hand smoke” and the need for focus in public health

Following years and even decades in which much of the visible role of the public health profession has consisted of interventions against voluntary choices that had nothing to do with inflicting contagious disease, we have come to re-learn painfully about its older and more fundamental role in situations where the survival of strangers really may depend on our personal choices each day. If there’s any justice, it means none of us will ever have to pay attention again to concocted scares over things like “third-hand smoke,” said to be transmitted by persons who didn’t smoke around us, but came into our presence bearing residues of tobacco smoke on their hair or clothing from having smoked elsewhere. [Jacob Grier, Exponents magazine; our 2009 coverage]

Filed under: ,

Medical roundup

  • Telemedicine has become a crucial tool during the crisis. 2017 paper discusses the regulatory barriers that had constrained it [Shirley Svorny, Cato Policy Analysis; earlier here, here, and here]
  • “Wondered why it’s been so hard to ramp up production of surgical masks and respirators? Why haven’t private companies flooded into the market to meet peak demand? Because they are regulated medical devices and new versions require FDA approval which can take months to obtain.” [Paul Matzko thread on Twitter]
  • Asking former health care workers to “dust off their scrubs” and return for the emergency raises possible liability exposures [Lori Rosen Semlies, Wilson Elser] “Coronavirus could affect med mal rates: Experts” [Judy Greenwald, Business Insurance]
  • A closer look at certificate of need laws, which suppress hospital bed supply [Eric Boehm, related audio clip with Jeffrey Singer, earlier and more]
  • More on the relaxation of occupational licensure in medical jobs during the emergency [Michael Abramowicz, Jeffrey Singer, earlier]
  • Return with us now to those days not so long ago when public health specialists seemed to be in the paper every day inveighing against alcohol, dietary choices, and such like [Elaine Ruth Fletcher, Health Policy Watch last year on World Health Organization (WHO) rumblings against alcohol; JAMA on furious fight over red-meat recommendations]

Filed under: , , , ,

Emergency state powers during an epidemic — and what happens after it’s over

The framers of American government were only too well aware of epidemics as a danger to human life (here’s a list of more than 30 such outbreaks that occurred between 1763 and 1783; Alexander Hamilton and his wife Elizabeth, after both contracting yellow fever and surviving, then underwent quarantine). And American constitutional law has from the outset recognized and countenanced a “police power” in state government during true emergencies to intercept the sorts of otherwise harmless movements and actions that can turn well-meaning individuals into vectors of physical harm to follow citizens. At the same time, as they also knew, freedom would count for little were these emergency powers to set the measure for what government can do to citizens in circumstances short of that dire urgency.

I’m grateful to Ingrid Jacques of the Detroit News for quoting me in her column on this subject yesterday:

“’We have no collective memory of going through this kind of thing,’ says Walter Olson, a senior fellow at the Cato Institute’s Robert A. Levy Center for Constitutional Studies. ‘It’s an invasion of rights we normally wouldn’t let the government get away with.’

“We’re all getting a crash course on what exactly the government can do in times of crisis. It turns out, it’s a lot….

“… Once the virus subsides, limited??government champions should watch whether all the regulations in effect during the threat go away, too.

“’The government must put away these dangerous weapons once the emergency is over,’ says Olson.”

For a sense of the sweeping powers governments sometimes assert in the name of quarantine, isolation and lockdown—definitely not meant as an endorsement—check this New York Times account. (It at least quotes a former NSC official who says “The American way is to look for better outcomes through a voluntary system.”)

Because courts applying constitutional law tend to treat government power as at its legitimate zenith during a “hot” emergency, and (this is nothing new) grant maximum short-term deference to the authorities at such times, ordinarily robust constitutional rights bend at least until the immediate threat to life has passed.

Freedom to assemble and freedom to worship are central to the First Amendment, yet courts have upheld and would uphold bans on religious and political assemblies in times of epidemic. Second Amendment rights that courts would ordinarily enforce, such as to operate a gun store or get processing for a required permit, may also be suspended without a short-term judicial remedy. Indeed, the judicial remedy needed to enforce any right may fail if the courts are closed owing to an epidemic.

True emergencies do not last. When this is over, as it will be, both the courts’ vigilance and ours must be directed toward making sure the government promptly and fully relinquishes whatever emergency powers it has flexed. We will face a body of opinion intent on pressing that exact advantage, as in this Chicago Sun-Times column from Friday:

If we can fight a war against an enemy we can’t see or touch, we certainly could use draconian measures to fight the gun violence in our neighborhoods as well.

Watch out for this kind of thinking. We’re going to hear a lot more of it.

[cross-posted from Cato at Liberty]

Filed under: , ,

COVID-19 pandemic roundup

  • Get the truckers what they need: reversing itself, Pennsylania agrees to reopen all 17 closed turnpike service plazas, heavily relied on by truck workforce [Ashley, CDL Life]
  • No, Senator, Medicare for All would not have kept us safe: “An Epidemic Big Enough to Accommodate Everyone’s Wish List” [Jacob Sullum] Has spending on the federal Centers for Disease Control and National Institutes of Health been squeezed, gutted, etc.? My colleague Chris Edwards checks the numbers;
  • This is not the first time epidemics have interrupted the Supreme Court in its work [ABA Journal]
  • Medical supplier, speaking anonymously “for fear of FDA retaliation,” says it has large quantities of protective masks ready that cannot be used or even unpacked until FDA gets around to inspection [Tom Rogan, Washington Examiner] As part of liability protection, new bill will allow masks manufactured for industrial uses to be put into health care service [Jeanne Whalen, Washington Post; earlier here and here]
  • Good luck and renewed health to David Lat, founder of Above the Law and longtime friend of this site, who’s on ventilation in a New York hospital with a COVID-19 diagnosis [New York Law Journal, his Twitter and Facebook posts]
  • Emergency measures have a way of bleeding into later policy: “Politicians Declare Eviction Moratoriums To Combat Coronavirus. Will They Give Up That Power After the Virus Fades?” [Christian Britschgi]

Filed under: , , , ,

COVID-19 pandemic roundup

  • Certificate-of-need laws in 38 states restrict hospital bed capacity by giving competitors a lever to object. More beds would have helped with emergency preparedness [Jeffrey Singer; more from Eric Boehm; bed crisis feared within weeks]
  • White House, Congress negotiate on liability-limit measure aimed at freeing up 31 million expired but usable masks; “3M and Honeywell don’t feel comfortable providing them without assurances they won’t be sued.” [Michael Wilner, McClatchy; latest on HHS proclamation] Between death, business interruption, and enormous disruption to business practice, a landscape of litigation opens up [Bob Van Voris et al., Fortune]
  • Proposed executive order would bar import of critical medical supplies from China, closing supposed “loophole” that could save your loved one’s life as shortages of ventilators loom [Ana Swanson, New York Times; Greta Privitera, Politico Europe on triage decisions at Italian hospitals reeling under equipment shortages]
  • Courts canceling jury trials as virus spreads [Eric Turkewitz] Supreme Court building closes to public until further notice;
  • Newark, N.J. threatens to prosecute persons who make false statements about the pandemic [Mike Masnick, TechDirt (“a masterclass in how not to deal with the problem of misinformation about the coronavirus”); Eugene Volokh (while some kinds of lies can be criminalized consistent with the First Amendment, many of those relevant here cannot]
  • Memo to HR: EEOC has advised “that taking the temperature of all employees may violate the ADA under some circumstances, but has indicated that the rules may change during a pandemic” [Daniel Schwartz; employee temperature checks in Singapore]

Filed under: , , , , , , ,

Regulators should get out of the way of broad COVID-19 testing

“After suffering from the initial outbreak of the novel coronavirus (COVID-19), China appears to have succeeded at turning around its spread through the use of highly coercive measures such as widespread home confinement of both healthy and sick persons. Can societies with more individual liberty match its success without losing their character?” My new Cato piece argues that widespread testing has been a key to South Korea’s success and if the United States is to follow up it needs to open up regulatory permissions. With bonus provocation at the end about Bill Gates and billionaires!

Filed under: , , , , ,

Public health roundup

  • After a crackdown on saloon drinking backed by Theodore Roosevelt and others, creative New Yorkers opened 1500 new “hotels” and complied with rules linking alcohol to food by serving desiccated sandwiches meant not to be eaten [Darrell Hartman, Atlas Obscura on Raines Law]
  • “‘The evidence is very, very strong that there’s a powerful potential health benefit if you can’t get people to quit entirely, to get them to switch from cigarette smoking to vaping,’ Olson said.” [Scott McClallen, Center Square] Here comes Massachusetts to make things worse [Jeffrey Singer]
  • If you suppose that transcontinental air travel is worsening the risk of global pandemics, then you may suppose erroneously [Johan Norberg “Dead Wrong” video]
  • Zoning will not bring slimness: “Fast-Food Bans Are a Dumb Idea That Won’t Die” [Baylen Linnekin] Having a supermarket enter a food desert has at best a minor effect on healthy eating [Hunt Allcott et al., Quarterly Journal of Economics, earlier]
  • The imperialism of public health: wealth inequality, affordable housing declared topics for action by the public health profession [Petrie-Flom]
  • “From the 1910s through the 1950s, and in some places into the 1960s and 1970s, tens of thousands — perhaps hundreds of thousands — of American women were detained and forcibly examined for STIs…. If the women tested positive, U.S. officials locked them away in penal institutions with no due process….. During World War II, the American Civil Liberties Union not only failed to oppose the Plan; its founder, Roger Baldwin, sent a memorandum encouraging its local branches to cooperate with officials enforcing it.” [Scott W. Stern, History.com]
  • Public health campaign against arsenic-tainted wells in Bangladesh appears to have inadvertently increased child mortality in places where alternative was surface water, which is more likely to carry microbial contamination [Nina Buchmann, Erica M. Field, Rachel Glennerster, & Reshmaan N. Hussam, Cato Research Briefs in Economic Policy No. 180]

Filed under: , , , ,

Organized psychiatry and activism

“Were there really more than twice as many sessions on global warming as on obsessive compulsive disorder? Three times as many on immigration as on ADHD?” Blogger and medical professional Scott Alexander at the American Psychiatric Association convention: “If you want to model the APA, you could do worse than a giant firehose that takes in pharmaceutical company money at one end, and shoots lectures about social justice out the other.” [Slate Star Codex]

Filed under: ,