The Wylde Report

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The Toronto Maple Leafs are headed southbound after splitting their first two playoff games against the Tampa Bay Lightning—but the journey is a bit more complicated than you might expect.

Instead of flying from Toronto to Florida, the Leafs' players, coaches, and staff piled into buses and drove to the airport in Buffalo, New York, after their loss on Wednesday night, according to TSN hockey reporter Darren Dreger.

Why the scenic route? Per the current rules governing cross-border travel into the United States, air travelers must show a negative COVID-19 test within 48 hours of entering the country. But there's no testing required to drive into the country—so by bussing to Buffalo, the Leafs avoid an unnecessary complication in their travels. They also avoid the possibility of a positive test that keeps one or more players from making the trip at all.

Toronto is not the only National Hockey League (NHL) team doing this. Dreger reports that the Edmonton Oilers had an even more complicated travel schedule to commute to their upcoming playoff games in Los Angeles. Unlike Toronto, Edmonton is not within easy driving distance of an American airport, so the Oilers flew to Vancouver, took buses to Seattle, then boarded planes bound for L.A.

This has been common practice for teams going back and forth across the border all year, Dreger notes.

It's also a perfect illustration of why the federal government ought to drop the mandatory COVID testing requirement for passengers on flights entering the United States—or at least drop it for flights from Canada and Mexico, the only places from which travelers can enter by air and ground. There's no rational justification for subjecting travelers to different rules based on the means used to enter the country. A passenger on a plane is no more likely to be carrying COVID than someone on a bus or in a car.

Indeed, travelers have been well aware of this gaping loophole for a while. The CBC ran a story in April of last year about how many Canadians were crossing the U.S. border by land specifically to evade America's testing and quarantine rules.

Like with other nonsensical COVID rules, the only thing the testing mandate seems to be accomplishing is the making of creative travel arrangements. It might not rise to the level of, say, New York City mandating vaccines for players on the city's home teams but exempting visiting players from the same rules, but the testing mandate is clearly not accomplishing a public health purpose.

Once again, sports are at the forefront of these debates over COVID policy because of the massive logistical operations that are necessary to make professional leagues work and due to the prominence of pro sports in American culture. Throughout the pandemic, sports leagues have had a powerful financial incentive to find safe, effective ways to keep the games going. Unlike governments (and government-run industries like public schools) that have been more content to impose major restrictions without consideration of the costs, sports leagues have been quick to evolve their policies to match the changing circumstances of the pandemic.

When the National Football League, for example, decided in December that it would stop requiring asymptomatic players who tested positive for COVID to be held out of practices and games—essentially declaring that positive tests were insignificant factors within environments where vaccination was widespread—it both reflected a growing "vaxxed-and done" trend within the rest of American society and signaled to more stodgy institutions that policy changes were needed.

For much of the pandemic, the leagues took pains to respect the differing COVID rules at the U.S.-Canadian border. That was especially a problem for the NHL, which has seven of its 31 franchises in Canada. The league temporarily realigned its structure to put all seven Canadian teams into a separate division for the 2020-21 season and adjusted its schedule to eliminate cross-border travel. Toronto-based teams playing in Major League Baseball (MLB) and the National Basketball Association (NBA) were also forced to adjust. The MLB's Toronto Blue Jays spent most of the past two seasons playing some "home" games at their spring training facility in Florida and others at a minor league ballpark in Buffalo, New York. The NBA's Toronto Raptors made a temporary home in Florida too.

But sports are once again signaling that change is needed. The NHL dropped its all-Canadian division before this season began, but the creative travel arrangements are being thrown into the spotlight now that there are three U.S.-vs.-Canada pairings among the league's eight first-round playoff series. (The Calgary Flames and Dallas Stars will decamp from Alberta to Texas after the second game of their playoff series on Thursday night, but Dreger says there is no word yet on how they will hokey-pokey across the border).

If mandatory testing for airplane travelers from Canada ever made sense—and perhaps it did in the very early days of the pandemic, before COVID was endemic on both sides of the border—that time has long since passed. The rule is now accomplishing nothing except complicating the free movement of people, and hockey players, across the continent.

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The Infodemic: How Censorship and Lies Made the World Sicker and Less Free, by Joel Simon and Robert Mahoney, Columbia Global Reports, 192 pages, $16

"We're not just fighting an epidemic," Tedros Adhanom Ghebreyesus, director-general of the World Health Organization, declared at the Munich Security Conference on February 15, 2020. "We're fighting an infodemic. Fake news spreads faster and more easily than this virus and is just as dangerous."

Joel Simon and Robert Mahoney expand on that concept in The Infodemic: How Censorship and Lies Made the World Sicker and Less Free. Since Simon is a former executive director of the Committee to Protect Journalists, where Mahoney currently serves as executive director, it is not surprising that they see state efforts to suppress inconvenient information as part of the problem that Tedros described.

That makes sense, since authoritarian governments in countries such as China and Russia contributed to the "infodemic" by censoring, discrediting, and intimidating journalists and other observers who tried to tell the truth about COVID-19. Meanwhile, these governments promoted their own version of reality, in which the pandemic's impact was less serious and the political response to it was more effective.

But folding censorship into the "infodemic" creates an inescapable tension, since democrats as well as autocrats were frequently tempted to address "fake news" about the pandemic through state pressure, if not outright coercion. The Biden administration, for instance, demanded that social media platforms suppress COVID-19 "misinformation," which it defined to include statements that it deemed "misleading" even if they were arguably or verifiably true.

The problem of defining misinformation is evident from the debate about face masks as a safeguard against COVID-19. After initially dismissing the value of general masking, the U.S. Centers for Disease Control and Prevention (CDC) decided it was "the most important, powerful public health tool we have." More recently, the CDC has acknowledged that commonly used cloth masks provide little protection, largely agreeing with critics whose statements on the subject had previously triggered banishment from platforms such as YouTube.

Simon and Mahoney make it clear that they do not favor state speech controls. But their concerns about the ways governments used the pandemic as an excuse to expand their powers are curiously limited. While they view censorship as beyond the pale, they are inclined to see other restrictions on freedom—even sweeping impositions such as stay-at-home orders and mass business closures—as justified by the public health emergency.

The authors try to reconcile this apparent contradiction by invoking Isaiah Berlin's distinction between "negative" liberty (freedom from government restraint) and "positive" liberty (self-realization or self-determination). Simon and Mahoney define positive liberty as "the ability to shape the destiny of [one's] own society and live by its laws," which is simultaneously narrower than Berlin's concept, more explicitly collectivist, and more clearly at odds with negative liberty. As they see it, your "ability" to obey democratically enacted laws advances positive liberty even when you view those laws as oppressive.

"The legitimacy of a government's efforts to restrict negative liberty is derived from the existence of positive liberty, as expressed through the consent of the governed," Simon and Mahoney say. "The right to speak, to listen, to express and exchange ideas, to communicate closely held beliefs, to criticize authorities, to demand accountability: these are the broad range of activities enabled by positive liberty."

That's a confusing way to describe freedom of expression, which at bottom is a kind of negative liberty: freedom from prior restraint and from punishment for reporting information or expressing opinions that the government views as dangerous. For example, Simon and Mahoney describe the experience of the independent Chinese journalist Chen Qiushi, who was arrested because of his reporting from Wuhan—a classic violation of negative liberty.

Restrictions on negative liberty, "even severe ones such as lockdowns, are legitimized through the existence of positive liberty," Simon and Mahoney write, because "the people impacted are able to express their views" and "ultimately if they so wish to compel the government to change course." In other words, as long as citizens have an opportunity to choose, criticize, and change their leaders, it is not inherently problematic to force them to follow public health edicts they view as unnecessary, unscientific, or draconian.

If you oppose censorship as a violation of negative liberty, by contrast, you do not value freedom of expression merely because it is useful around election time or when people are trying to decide what safeguards make sense in response to an airborne virus. And while you probably will agree that such a situation can justify government intervention, since disease carriers pose a potentially deadly threat to others, you may still object to specific policies on the grounds that they unjustifiably restrict other rights, such as freedom of movement, freedom of religion, or freedom to earn a living.

Simon and Mahoney suggest that such rights can be vindicated through the democratic process. But that solution is plainly inadequate, since a majority may support policies that oppress a minority. In any case, COVID-19 control measures in democratic countries were not necessarily supported by popular majorities. For the most part, they were not even imposed by legislative majorities; they were instead the work of executive-branch officials such as governors, presidents, and prime ministers.

Voters might eventually have a chance to express their displeasure at such decrees. In New Jersey, for example, Democratic Gov. Phil Murphy was dismayed by his surprisingly narrow reelection victory last fall, which motivated him to relax his pandemic-related restrictions. Republican Glenn Youngkin's upset victory in Virginia's gubernatorial election likewise was seen partly as an expression of frustration with COVID-19 policies—in particular, a statewide mandate forcing students in K–12 schools to wear masks.

But between elections, citizens outraged by such edicts have little recourse unless they can persuade legislators to assert control, as happened in states such as Michigan and Pennsylvania, or obtain relief from the courts, as happened with pandemic-inspired restrictions on abortion and religious gatherings. Those interventions acknowledged the threat that government officials pose to civil liberties when they claim the authority to exercise extraordinary powers in response to open-ended emergencies they themselves declare.

Simon and Mahoney seem mostly blind to that danger, except when it comes to censorship and especially invasive kinds of COVID-related surveillance. They note the "untold hardship" caused by India's lockdown, which left migrant workers stranded without any means to support themselves or their families. But they think the main problem was that the policy was implemented too suddenly, not that it went too far.

"The nationwide lockdown was an unprecedented restriction on the liberty that Indian citizens enjoy in a democracy," Simon and Mahoney concede. "But it had a public health rationale, and many citizens, including health experts, believed it was warranted."

While they give Indian Prime Minister Narendra Modi a pass on his most dramatic and consequential response to the pandemic, Simon and Mahoney fault him for his "harsh reprisals" against journalists who questioned his policies. In addition to direct intimidation, Modi "relied on an army of online trolls who amplified his criticism of individual journalists, attacking them in the most personal and vile ways." In that respect, Simon and Mahoney say, Modi resembled Brazilian President Jair Bolsonaro and U.S. President Donald Trump, "democratic populists" who minimized the seriousness of the pandemic, promoted misinformation, and viewed criticism as an intolerable affront.

In Trump's case, portraying "online trolls" as minions taking their orders from him is misleading, since he often seemed to take his cues from them instead. Trump's reluctance to promote vaccination while he was in office can be explained by his fear that it would anger his supporters—a realistic worry, given the hostile reaction he later received when he bragged about the vaccines his administration had expedited. And Trump initially supported lockdowns before declaring, presumably based on his reading of his base, that it was time to lift them.

If we imagine a polity where anti-vaxxers are in the majority, the already problematic idea that pandemic responses are validated by the democratic process becomes even harder to defend. And if the "infodemic" is mostly a spontaneous phenomenon, demands that governments do more to address it invite repressive responses similar to the ones that Simon and Mahoney rightly decry. The alternative—correcting misinformation by citing the evidence that contradicts it—is hardly a magic bullet. But at least it offers an opportunity to persuade people, which is how arguments are supposed to be resolved in a free society.

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The national debt is at an all-time high and this year's budget deficit is forecasted to be the third or fourth-largest in American history—but President Joe Biden claims these are signs that his administration is overseeing a period of fiscal austerity.

Really! Here are some words that actually tumbled out of the president's mouth at a press conference on Wednesday morning: "We're on track to cut the federal deficit by another $1.5 trillion by the end of this fiscal year. The biggest decline ever in a single year, ever, in American history."

"And the biggest decline on top of us having a $350 billion drop in the deficit last year, my first year as president," Biden continued. "The bottom line is that the deficit went up every year under my predecessor—before the pandemic and during the pandemic—and it's gone down both years since I've been here. Period. They're the facts."

Those facts, however, exclude a few key details. Like the fact that Biden took office the year after the budget deficit hit previously unimaginable highs due to a completely unprecedented spending binge triggered by a once-in-a-generation public health disaster.

The annual budget deficit—the gap between how much the government collects in tax revenue and how much it spends—jumped from about $900 billion in 2019 to more than $3.1 trillion 2020, then declined to about $2.8 trillion last year. The White House now expects the deficit for the current fiscal year, which ends in September, to weigh in at about $1.3 trillion.

Yes, relative to last year, that means the deficit will decline by about $1.5 trillion this year. And if you can't remember anything that happened before 2020, then I guess that might seem like an accomplishment.

Relative to almost any other year in American history, however, this is about the exact opposite of fiscal responsibility. Outside of the two years of the pandemic, the largest deficit in American history was a little over $1.4 trillion in 2009. That year will likely remain ahead of 2022 (and if you adjust for inflation, it's unlikely we'll approach that level again in the too-near future).

That means Biden is bragging about presiding over what's likely to wind up as the fourth-largest deficit in history. This is what passes for fiscal responsibility in Washington, D.C., these days.

In fact, if you look at the actual budgetary baselines published by the Congressional Budget Office—that is, the ongoing amount of annual federal spending absent any emergency stimulus bills like the ones passed on several occasions during the height of the pandemic—Biden has overseen a noticeable increase in the deficit above the pre-pandemic baseline. According to the Committee for a Responsible Federal Budget, a fiscal watchdog group that advocates for lower deficits, Biden's policies have added about $2.5 trillion to the deficit over the next 10 years.

"Taking credit for a deficit drop that is largely the result of expiring stimulus and higher inflation makes little sense," reads a statement from Maya MacGuineas, the committee's president. MacGuineas praises Biden for even talking about fiscal responsibility—something that few policymakers do these days—but points out that several of the administration's biggest policy plans are not paid for and that Biden has not put forward a plan to deal with the pending fiscal insolvency of entitlement programs like Social Security and Medicare.

"It is wonderful to have a President in the White House who acknowledges the importance of fiscal responsibility," MacGuineas says, "now we need more policy choices to back that up."

However, Biden isn't talking about deficit reduction as something his administration is seeking to accomplish—he's talking about it as a done deal. He's trying to take credit for two years of falling deficits as a way to justify more spending and bigger deficits in the years to come. The budget he presented to Congress earlier this year envisions growing deficits despite calling for big tax increases on the wealthy—the annual deficits will remain above pre-pandemic levels for the rest of the next decade and will hit $1.8 trillion by 2023. And that doesn't even include the cost of several big-ticket items, like Biden's Build Back Better plan, which is relegated to a footnote in the budget even though it would cost trillions of dollars.

Yes, it's a big deal for a president to call a press conference to talk about the federal budget. More talk about fiscal issues in Washington is welcome. Now we just need a president who will do so without spreading misinformation.

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The Department of Homeland Security (DHS) is dismayed by the uproar over its new Disinformation Governance Board. DHS this week emphasized that the "internal working group," which has no "operational authority or capability," will focus on developing "best practices" to counter disinformation from foreign states and criminal organizations while protecting "free speech and other fundamental rights."

Although Republicans who likened the board to an Orwellian Ministry of Truth were indulging in partisan hyperbole, there are legitimate grounds for concern about the Biden administration's broader assault on speech it views as dangerous. Even if the DHS board's work does not amount to much, Americans are right to worry about the implications of that multifaceted campaign.

During congressional testimony last week, Homeland Security Secretary Alejandro Mayorkas noted that DHS had recently created a "misinformation/disinformation governance board." Mayorkas was responding to a question from Rep. Lauren Underwood (D‒Ill.), who mentioned "human smuggling organizations peddling misinformation to exploit vulnerable migrants" and said "disinformation is being heavily targeted at Spanish-speaking voters, sparking and fueling conspiracy theories."

Politico reported that the board was supposed to "coordinate countering misinformation related to homeland security, focused specifically on irregular migration and Russia." But when a reporter asked White House Press Secretary Jen Psaki about the working group last Thursday, she said "it sounds like the objective of the board is to prevent disinformation and misinformation from traveling around the country in a range of communities." She added that "I'm not sure who opposes that effort."

That broad description of the board's mission, combined with Psaki's apparent obliviousness to the civil liberties issues raised by government efforts to "prevent disinformation and misinformation from traveling," seemed to validate the concerns of conservative critics. It did not help that the "expert on online disinformation" appointed to head the working group, Nina Jankowicz, had disparaged "free speech absolutists," criticized Republican legislators for "laundering disinfo," and described the New York Post's accurate reporting about emails from Hunter Biden's abandoned laptop as part of "a Russian influence op."

During a CNN interview on Sunday, Mayorkas conceded that "we probably could have done a better job of communicating what [the board] does and does not do." But poor communication was not the only problem.

In a February 7 National Terrorism Advisory System bulletin, DHS identified "the proliferation of false or misleading narratives" that "sow discord or undermine public trust in U.S. government institutions" as one of three "key factors contributing to the current heightened threat environment." Those narratives, it said, included claims about election fraud and COVID-19, which fed "grievances" that "inspired violent extremist attacks during 2021."

That view of controversial speech is consistent with the Biden administration's attitude toward COVID-19 "misinformation," which it has urged social media platforms to suppress. Given the power that the executive branch wields over those companies, such pressure can easily lead to censorship by proxy.

The problem is compounded by the difficulty of defining "misinformation." Surgeon General Vivek Murthy says it includes statements that are "misleading" even if they are arguably or indisputably true. Murthy's definition hinges on the government's assessment of "the best available evidence," which "can change over time."

That means "misinformation" is a moving target. What was once deemed "misinformation" on issues such as mask mandates and lockdowns can later be blessed by a government-validated "scientific consensus," and vice versa.

Murthy says the "whole-of-society" effort to combat the "urgent threat to public health" posed by "health misinformation" may require "appropriate legal and regulatory measures." While Murthy, like Jankowicz, has no power to control what Americans say, the administration's endorsement of his vision belies its avowed commitment to freedom of expression.

In a 2017 Washington Post op-ed piece, Jankowicz argued that the key to countering "fake news" is fostering "media literacy" so that people can better judge for themselves the credibility of online information. Unlike heavy-handed efforts to stop the spread of "misinformation," this approach has the advantage of being constitutional as well as practical.

© Copyright 2022 by Creators Syndicate Inc.

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Retraction: An earlier episode of the Cyberlaw Podcast may have left the impression that I think Google hates mothers. I regret the error. It appears that, in reality, Google only hates Republican mothers who are running for office. But to all appearances, Google really, really hates them. A remarkable, and apparently damning study disclosed that during the most recent federal election campaign, Google's Gmail sent roughly two-thirds of GOP campaign emails to users' spam inboxes while downgrading less than ten percent of the Dems' messages. Jane Bambauer lays out the details, which seem to refute most of the excuses Google might offer for the discriminatory treatment. Notably, neither Outlook nor Yahoo! mail showed a similar pattern. Tatyana thinks we should blame Google's algorithm, not its personnel, but we're all eager to hear Google's explanation, whether it's offered in the press, before the Federal Election Commission (FEC), in court, or in front of Congressional investigators after the next election.

Jordan Schneider helps us return to China's cyber policies after a long hiatus. Things have not gotten better for the Chinese government, Jordan reports. Stringent lockdowns in Shanghai are tanking the economy and producing a surprising amount of online dissent, but with Hong Kong's coronavirus death toll in mind, letting omicron spread unchecked is a scary prospect, especially for a leader who has staked his reputation on dealing with the virus better than the rest of the world. Among the results is hesitation in pursuing what had been an aggressive techlash regulatory campaign.

Tatyana Bolton pulls us back to the Russian-Ukrainian war. She notes that Russia Is not used to being hacked at anything like the current scale, even if most of the online attacks turn out to be pinpricks. She also flags Microsoft's report on Russia's extensive use of cyberattacks in Ukraine. All that said, cyber operations remain a minor factor in the war.

Michael Ellis and I dig into the ODNI's intelligence transparency report, which inspired several differed takes over the weekend. The biggest story was that the FBI had conducted "up to" 3.4 million searches for U.S. person data in the pool of data collected under section 702 of the Foreign Intelligence Surveillance Act (FISA). Sharing a brief kumbaya moment with Sen. Ron Wyden, Michael finds the number either "alarming or meaningless," probably the latter. Meanwhile, FISA Classic wiretaps dropped again in the face of the coronavirus. And the FBI conducted four searches without going to the FISA court when it should have, probably by mistake.

We can't stay away from the pileup that is Elon Musk's Twitter bid. Jordan offers views on how much leverage China will have over Twitter by virtue of Tesla's dependence on the Chinese market. Tatyana and I debate whether Musk should have criticized Twitter's content moderators for their call on the Biden laptop story. Jane Bambauer questions whether Musk will do half the things that he seems to be hinting. I agree, if only because European law will force Twitter to treat European sensibilities as the arbiter of what can be said in the public square.

Jane outlines recent European developments showing, in my view, that European policymakers aren't exactly running low on crazy. A new EU court decision opens the door to data protection class actions, undermining the jurisdictional limits that have made life easier for big U.S. companies. I predict that such lawsuits will also mean trouble for big Chinese platforms.

And that's not half of it. Europe's Digital Services Act, now nearly locked down, is a mother lode of crazy. Jane spells out a few of the wilder provisions – only some of which have made it into legal commentary.

Orin Kerr, normally a restrained and professorial commentator on cyber law, is up in arms over a recent 9th Circuit decision holding that a preservation order is not a seizure requiring a warrant. Michael, Jane, and I explore Orin's agita, but we have trouble sharing it.

In quick hits:

Jane makes short work of a report expressing shock that Amazon uses data from Alexa smart speakers pretty much exactly the way you'd expect it to.

Michael and I unpack the latest move in the prosecution of Uber's former Chief Security Officer, Joe Sullivan.

Jane lays out what's different in Colorado's new privacy law. Spoiler:  Just enough to make a federal privacy law with preemption look good to business.

Michael and I wish the Biden administration well in its effort to get much-needed new authorities to address the risks of drone attacks here at home.

Download the 405th Episode (mp3)

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The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.

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Late last year, the owner of snowmobile rental business Canyon Adventures filed a complaint with the code compliance office of Gallatin County, Montana, against the nearby Corral Bar and Steakhouse. It alleged the bar's own snowmobile rental business wasn't allowed by the property's zoning.

The county's code compliance office agreed that the snowmobile business wasn't allowed by the zoning code. But rather than slapping the Corral Bar owners with a fine or shutting them down, the Bozeman Daily Chronicle reported yesterday that the county closed the case without taking any enforcement action.

The reason? According to a sweeping law passed by the Montana Legislature in April 2021 aimed at prohibiting mask mandates, the county can't compel "a private business to deny a customer to the premises or access to goods or services." It also can't adopt ordinances that deny customers the same access to those goods and services.

Importantly, H.B. 257 also stops governments from applying fines, revoking licenses, filing criminal charges, or bringing "any other retributive action" against business owners for not complying with a law forcing them to reject customers.

The language of the new state law is broad. So broad that, in a number of instances, Gallatin County officials have interpreted it to mean they can't penalize businesses for violating the county's zoning code.

"Each individual circumstance is going to be judged on its own," says Gallatin County Attorney Marty Lambert to Reason.

He declined to speculate on the full extent of H.B. 257. But, Lambert says, when there's a county law or regulation that falls within the scope of H.B. 257 and has the effect of forcing a private business to refuse a customer, then the county can't take "retributive action" against the business for servicing that customer anyway.

In those cases, the county is forbidden from using any "remedies that might be available under the ordinance," he says. "[H.B. 257] is all-encompassing, and it was meant to be all-encompassing."

In the Corral Bar case, county officials reasoned that they couldn't punish the bar for running an unpermitted snowmobile rental because that would involve compelling it to deny customers a service in violation of H.B. 257.

The Chronicle reports that Gallatin County officials have declined to bring enforcement actions in at least eight zoning cases because of H.B. 257's restrictions, including ones involving illegal Airbnbs and a summer camp that opened up in a residential zone.

The breadth of H.B. 257 stoked controversy when it was first passed. An Associated Press story from June 2021 quotes county and public health officials wondering what laws they'll still be able to enforce.

"The language eliminating local government authority to enforce any resolution or ordinance that interferes with a customer and business relationship is very broad and not limited to public health," Eric Bryson, the executive director of Montana Association of Counties, told the A.P. "Counties have many, many resolutions and ordinances that were previously enforceable but now may not be."

When asked whether his interpretation of H.B. 257 was exceptionally broad, Lambert says that he hasn't spoken with any other county attorneys about how they are enforcing it. Gallatin County appears to be unique by interpreting the law as affecting the enforcement of zoning codes.

Officials from other counties, the association representing municipal governments, and H.B. 257's author have all told the Chronicle that they don't think the law applies to zoning.

The requirements and complexities of zoning codes across the country can trip up entrepreneurs just trying to open a new burrito location or run a home studio business. Even when everyone is in agreement that the code is too burdensome, the most marginal reforms can still take years.

By passing a law preventing localities from getting in between willing businesses serving willing customers, Montana legislators, seem to have liberated their state's business owners from all that red tape in one go. Intentionally or not, that might be the most sweeping zoning reform in the country.

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When celebrities, top political leaders, and media elites gathered on Saturday night for the first White House Correspondents' Dinner in three years, Anthony Fauci was not among them. The government's top COVID-19 adviser had opted not to attend, citing "my individual assessment of my personal risk" of contracting the disease.

But while Fauci did not attend the dinner itself, he was photographed at a pre-party: an indoor and outdoor Saturday brunch.

Fauci is certainly free to make whatever decision he thinks is best for him: In the post-vaccination landscape, as COVID-19 becomes a milder and milder illness for the overwhelming majority of healthy, vaccinated people who catch it, risk assessment absolutely rests with the individual. Much of the public frustration with Fauci and government health officials like him is that for far too long, they insisted risk assessment be calculated by federal health bureaucrats. Disastrously, these bureaucrats were often far less willing than the general public to countenance any risk whatsoever.  They also evinced misplaced priorities: Mask requirements for school children remained in place even as governments relaxed most other restrictions, despite COVID-19 posing less risk to kids and teenagers than any other cohort.

The U.S. is now moving swiftly away from this norm—the norm of needing permission from the Centers for Disease Control and Prevention (CDC)—and letting people work out for themselves how they feel about the risk of catching COVID-19, as if it were any other illness. That's a relief, and any effort to go back to the old norm should be met with maximal resistance.

All that said, Fauci's personal risk assessment is not beyond criticism, given that he clearly sees himself as a model of good public health behavior and has remained a steadfast scold about holiday parties and other events. Skipping the White House Correspondents' Dinner is well in keeping with his stated coronavirus caution, but was the brunch all that much safer? The brunch was partly outdoors, but there were indoor components as well. Moreover, most attendants were in close proximity and unmasked—Fauci included.

Fauci also attended the annual Gridiron Dinner less than a month ago, which turned out to be a superspreader event, though Fauci evidently avoided the virus. Again, he is welcome to follow inconsistent or unclear standards, but given that he was the paramount standards setter for all Americans from March 2019 until just a few weeks ago, one should be forgiven for subjecting his assessment to scrutiny.

If you're hobnobbing with a large number of social people, you run some risk of catching COVID-19. That's as true for brunch as it is for dinner.

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"There's a huge libertarian streak that runs through the tattooing community," says Paul Smith, who co-owns Red Stag Tattoo in Austin, Texas. "Tattoos are a way of claiming yourself and putting images or words or whatever on your body that no one else can control."

The tattooing industry was hit very hard by pandemic restrictions—even in Texas.

"Government restrictions came in, which literally shut us down," says Smith. "That cost us all of our shop's savings, all of [the owners'] personal savings. [My business partner and I] were kind of wiped out financially." 

And yet Smith and his business partner decided not to apply for money from the federal COVID relief program, which was rife with fraud, and in which the federal government handed out about $800 billion to millions of small businesses. That program ultimately cost taxpayers between $170,000 and $257,000 for every job saved over 14 months of the pandemic, according to a National Bureau of Economic Research working paper.

In May 2020, Texas' Republican Governor Greg Abbott allowed hair salons, gyms, and other personal service providers to reopen. But tattoo shops weren't included.

"They took us out of that classification and put us in with businesses like titty bars," says Smith, who blames an outdated perception of tattoo shops for how regulators treat the industry.

"Used to be, [tattoos were] for… unseemly sorts of characters."

Ohio also excluded tattoo shops from the state's reopening plans, which may have been a violation of their First Amendment rights. "Both state and federal courts have recognized tattooing as a constitutionally protected form of free expression," noted Reason's Damon Root in May 2020.

Tattooing started to shed its reputation for degeneracy in 2005, when the reality show Miami Ink premiered on TLC, running for six seasons. Kat Von D, one of the stars of the show, also became a successful model and makeup entrepreneur following her breakout role.

Today, celebrity icons like Joe Rogan, Justin Bieber, Rihanna, and Lena Dunham are heavily inked, and tattoos have become much more accepted in other realms of the music and film industries. Smith says he's all for that kind of popularization.

"As a tattoo shop owner and somebody who makes my money doing it, the more people that want them, the better," says Smith.

Reason's Liz Wolfe, who owes most of her left arm tattoo sleeve to Smith, visited his shop to talk about life during and after the pandemic for tattoo artists. They also discussed the history of tattooing and where the industry and craft might be headed next.

Interview by Liz Wolfe; edited by Zach Weissmueller; camera by Andrew Miller and Weissmueller; graphics by Regan Taylor and Isaac Reese; sound design by Ian Keyser.  

Photos: Louis Grasse/PxImages/Icon Sportswire EGS/Louis Grasse/PxImages/Icon Sportswire/Newscom; Abaca Press/Hahn Lionel/Abaca/Sipa USA/Newscom; Gregorio T. Binuya/Everett Collection

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Bones of tortured prisoners. Kolyma Gulag, USSR (Nikolai Nikitin, Tass).

  NOTE: This post largely reprints last year's Victims of Communism Day post, with some modifications.

Today is May Day. Since 2007, I have advocated using this date as an international Victims of Communism Day. I outlined the rationale for this proposal (which was not my original idea) in my very first post on the subject:

May Day began as a holiday for socialists and labor union activists, not just communists. But over time, the date was taken over by the Soviet Union and other communist regimes and used as a propaganda tool to prop up their [authority]. I suggest that we instead use it as a day to commemorate those regimes' millions of victims. The authoritative Black Book of Communism estimates the total at 80 to 100 million dead, greater than that caused by all other twentieth century tyrannies combined. We appropriately have a Holocaust Memorial Day. It is equally appropriate to commemorate the victims of the twentieth century's other great totalitarian tyranny. And May Day is the most fitting day to do so….

Our comparative neglect of communist crimes has serious costs. Victims of Communism Day can serve the dual purpose of appropriately commemorating the millions of victims, and diminishing the likelihood that such atrocities will recur. Just as Holocaust Memorial Day and other similar events promote awareness of the dangers of racism, anti-Semitism, and radical nationalism, so Victims of Communism Day can increase awareness of the dangers of left-wing forms of totalitarianism, and government domination of the economy and civil society.

While communism is most closely associated with Russia, where the first communist regime was established, it had comparably horrendous effects in other nations around the world. The highest death toll for a communist regime was not in Russia, but in China. Mao Zedong's Great Leap Forward was likely the biggest episode of mass murder in the entire history of the world.

November 7, 2017 was the 100th anniversary of the Bolshevik seizure of power in Russia, which led to the establishment of the first-ever communist regime. On that day, I put up a post outlining some of the lessons to be learned from a century of experience with communism.  The post explains why the lion's share of the horrors perpetrated by communist regimes were intrinsic elements of the system. For the most part, they cannot be ascribed to circumstantial factors, such as flawed individual leaders, peculiarities of Russian and Chinese culture, or the absence of democracy. The latter probably did make the situation worse than it might have been otherwise. But, for reasons I explained in the same post, some form of dictatorship or oligarchy is probably inevitable in a socialist economic system in which the government controls all or nearly all of the economy.

While the influence of communist ideology has declined since its mid-twentieth century peak, it is far from dead. Largely unreformed communist regimes remain in power in Cuba and North Korea. In Venezuela, the Marxist government's socialist policies have resulted in political repression, the starvation of children, and a massive refugee crisis - the biggest in the history of the Western hemisphere. The regime continues to hold on to power by means of repression, despite growing international and domestic opposition.

In Russia, the authoritarian regime of former KGB Colonel Vladimir Putin has embarked on a wholesale whitewashing of communism's historical record. Putin's brutal and indefensible invasion of Ukraine probably owes more to Russian nationalist ideology than communism. But it is nonetheless fed in part by his desire to recapture the supposed power and glory of the Soviet Union, and his long-held belief that the collapse of the USSR was ""the greatest geopolitical catastrophe of the century."

In China, the Communist Party remains in power (albeit after having abandoned many of its previous socialist economic policies), and has recently become less tolerant of criticism of the mass murders of the Mao era (part of a more general turn towards greater repression).

The Chinese regime's repressive policies also played a major role in its initial attempts to cover up the coronavirus crisis, which probably forestalled any chance of containing it before it became a massive pandemic. The brutal mass lockdowns entailed by the government's "zero Covid" policies also have much in common with the communist totalitarian legacy.

Perhaps worst of all its recent atrocities, China's horrific repression of the Uighur minority is reminiscent of similar policies under Mao and Stalin, though it has not - yet? - reached the level of actual mass murder. But imprisoning over 1 million people in horrific concentration camps is more than bad enough.

In a 2012 post, I explained why May 1 is a better date for Victims of Communism Day than the available alternatives, such as November 7 (the anniversary of the Bolshevik seizure of power in Russia) and August 23 (the anniversary of the Nazi-Soviet Pact). I also addressed various possible objections to using May Day, including claims that the date should be reserved for the celebration of labor unions.

But, as explained in my 2013 Victims of Communism Day post, I would be happy to support a different date if it turns out to be easier to build a consensus around it. If another date is chosen, I would prefer November 7; not out of any desire to diminish the significance of communist atrocities in other nations, but because it marks the establishment of the very first communist regime. November 7 has in fact been declared Victims of Communism Memorial Day by three state legislatures. Then-president Trump issued similar declarations in 2017 and 2018 (though he did not have the authority to make it a permanent national holiday through executive action alone).

If this approach continues to spread, I would be happy to switch to November 7, even though May 1 would be still more appropriate. For that reason, I have adopted the practice of also commemorating the victims of communism on November 7.

I am also more than willing to endorse almost any other date that could command broad support. Unless and until that happens, however, May 1 will continue to be Victims of Communism Day at the Volokh Conspiracy.

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A judge has dismissed murder charges against a man accused of killing a Cincinnati teen after revelations of extreme bungling by local police. After spending more than two years looking for the murder weapon they said would tie Delrico Peoples to the 2019 crime, Cincinnati cops think they've found it—in their own evidence.

On Monday, during jury selection for the case, Hamilton County Assistant Prosecutor Jeff Heile told prospective jurors the murder weapon had never been found. But that same day, "the lead Cincinnati police detective found a gun believed to be the murder weapon as he was going through the evidence," reports The Enquirer. "Cincinnati police have had the gun since 2019, but never had it thoroughly tested to see if it matched shell casings found in Peoples' car or at the shooting scene."

After actually analyzing the gun, police think they've now found their murder weapon. It was seized from another man back in 2019, four months after a stray bullet killed 18-year-old Brandon Phoenix as he waited at a bus stop. At that point, Peoples had already been charged with murder and felonious assault and was in jail.

Testing the gun back then could have helped catch a killer earlier—and saved Peoples from years of prosecution for a crime he may not have committed.

Peoples has admitted to driving the car during the shooting but says he didn't know the man in the back seat who fired the gunshots and didn't know the man was going to do so. Peoples "had no knowledge of why his passenger began shooting, or the identity of his passenger," according to court documents.

Prosecutors asked Hamilton County Common Pleas Judge Melba Marsh to delay Peoples' trial as they sorted out their evidence problems. But the judge said no—Peoples has the presumption of innocence on his side and had already been waiting more than two years for a trial.

"I can't justify holding him for a longer period of time, so the State of Ohio can do tests that take four to six weeks," Marsh said. "That's just not going to happen."

The charges were dismissed without prejudice, which means that prosecutors are allowed to refile them in the future if they deem it necessary.

FREE MINDS

Judge rejects partisan gerrymander in New York. Democrats frequently accuse Republicans of partisan gerrymandering of election districts—even though they aren't above doing the same thing themselves. Now, New York's highest court has "blocked the state's Democratic-drawn congressional map Wednesday, concluding that the new boundaries represented a partisan gerrymander that violates the state constitution," CNN reports. "The court ruled that a new map must be created for the 2022 election. New York's primary election is scheduled for June 28, but the judges wrote it will 'likely be necessary' to move the congressional elections to August."

FREE MARKETS

Student loan debt debate heats up again. The White House is signaling that it may be ready to forgive student loan debt. Meanwhile, Republicans have introduced a bill—the Stop Reckless Student Loan Actions Act —to stop this from happening.

The legislation "would end President Biden's untargeted, budget-busting suspension of repayments on qualifying federal student loans, following 24 months of non-payment and six executive actions extending the payment pause," explains a press release from Sen. Bill Cassidy (R–La.). "The bill would still allow the president to temporarily suspend repayment for low- and middle-income borrowers in future national emergencies and would prohibit the president from cancelling outstanding federal student loan obligations due to a national emergency."

Charles C.W. Cooke thinks this doesn't go far enough and Republicans should end the federal student loan program entirely. "Given the obvious political temptations that program was always going to create, the federal government should never have gotten into the student-loan business in the first place," Cooke writes in National Review:

But it did, and so here we are. If President Biden goes through with his threat, we will have been shown once and for all that the government cannot be trusted to issue these loans on behalf of America's taxpayers, and that it must not be allowed to do so again. In 2010, Congress authorized a loan program, not a system of politically motivated rolling jubilees. If the program becomes that — as it would under Biden's loan-forgiveness scheme — it must be killed. Such a repeal would not only inoculate Americans against this happening again, it would help to limit the government-created increases in tuition that, paradoxically, are being used to justify further federal action.

QUICK HITS

• Some patients are reporting rebound COVID-19 after taking the antiviral pill Paxlovid. A spokesperson from Paxlovid maker Pfizer told The Washington Post that trial data show "a small number" of people experience this but the rates are similar among people given a placebo.

• No, the Federal Communications Commission can't block Elon Musk from buying Twitter.

• Cliff Maloney Jr., the former head of Young Americans for Liberty, has been charged with two felony counts of rape and two felony counts of aggravated indecent assault.

• Should senators be barred from running for president?

• A new study examines the impact of coronavirus-related school shutdowns on student outcomes.

• Ohio is the latest state to consider a near-total abortion ban.

• SpaceX has already begun its next mission, after its last one landed earlier this week. This is the private space travel company's 16th launch this year.

• Thomas Raynard James spent 31 years in prison on a wrongful conviction of murder.

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Nearly three-fifths of Americans had been infected by the COVID-19 virus at least once as of February, according to new estimates from the Centers for Disease Control and Prevention (CDC). The results, which are based on seroprevalence research involving blood samples from all 50 states, indicate that infection prevalence varied widely across age groups: It was about 75 percent for children 11 and younger, 74 percent for 12-to-17-year-olds, 64 percent for 18-to-49-year-olds, 50 percent for 50-to-64-year-olds, and 33 percent for Americans 65 or older.

This study suggests that roughly 192 million Americans had been infected as of February, more than twice the number of cases that had been reported at the time. Based on the number of COVID-19 deaths recorded at the end of February, that estimate implies an overall U.S. infection fatality rate (IFR) of about 0.5 percent, which is substantially lower than the estimates used in early epidemiological models that projected as many as 2.2 million COVID-19 deaths in the United States, more than twice the current total. At the same time, the implied IFR is much higher than the estimates suggested by early seroprevalence studies in California and Florida.

Is 0.5 percent in the right ballpark? That depends on how well the CDC study measured the prevalence of infection. But it is also important to keep in mind that infection fatality rates can vary widely over time as the mix of patients changes, treatment improves, and vaccination becomes increasingly common; across age groups, since the risk for older people is vastly higher than the risk for younger people; and across locations with different demographics, patient characteristics, and health care capacities.

The blood samples for the CDC study were drawn for diagnostic purposes unrelated to COVID-19, and the researchers looked for anti-N antibodies, which are produced in response to infection but not in response to the vaccines approved for use in the United States. The New York Times reports that the study "used a test sensitive enough to identify previously infected people for at least one to two years after exposure."

The researchers note four limitations: "First, convenience sampling might limit generalizability. Second, lack of race and ethnicity data precluded weighting for these variables. Third, all samples were obtained for clinical testing and might overrepresent persons with greater health care access or who more frequently seek care. Finally, these findings might underestimate the cumulative number of SARS-CoV-2 infections because infections after vaccination might result in lower anti-N titers, and anti-N seroprevalence cannot account for reinfections."

Those limitations suggest that the total number of infections may be higher than the CDC's estimate. The Times reports that "some scientists said they had expected the figures to be even higher, given the contagious variants that have marched through the nation over the past two years." If the gap between reported cases and total infections is bigger than the CDC's results suggest, that would imply a lower overall IFR.

In any case, a nationwide IFR estimate for a particular period of time obscures factors that have a big impact on the danger posed by COVID-19. In light of those factors, any single IFR estimate is apt to be misleading. Instead of trying to estimate the one "true" IFR, it makes more sense to recognize that there are many IFRs, contingent on time, location, and demographic variables.

In a January 2021 Bulletin of the World Health Organization article, Stanford epidemiologist John Ioannidis reported that the IFRs implied by seroprevalence studies "tended to be much lower than estimates made earlier in the pandemic." But he also noted that "the infection fatality rate is not a fixed physical constant," and "it can vary substantially across locations, depending on the population structure, the case-mix of infected and deceased individuals and other, local factors."

Although it has long been clear that COVID-19 fatality rates are strongly correlated with age, the magnitude of the differences remains astonishing. According to the CDC's "best estimate," the IFR for people 65 or older is 9 percent, 4,500 times the IFR for children and teenagers (0.002 percent). A Lancet analysis published this month found that "age-specific IFR estimates form a J shape, with the lowest IFR [0.002 percent] occurring at age 7 years." The estimated IFR "increas[es] exponentially" with age: from about 0.06 percent for a 30-year-old to 1 percent for a 60-year-old and 20 percent for a 90-year-old.

Parents of children who are not yet eligible for vaccination may be reassured by the CDC's estimate that 75 percent of kids younger than 12 already had been infected by February. "That so many children are carrying antibodies may offer comfort to parents of those aged 5 and under," the Times says, "since many may have acquired at least some immunity through infection." But the most reassuring thing about the risk that COVID-19 poses to children in that age group is that it has always been tiny: According to the Lancet study, the IFR ranges from 0.002 percent for 5-year-olds to 0.005 percent for 1-year-olds.

That same study found that "all-age COVID-19 IFR varied by a factor of more than 30 across countries and territories during the pre-vaccine era." The countries with the highest rates as of July 15, 2020, were Portugal (2.1 percent), Monaco (1.8 percent), Japan (1.8 percent), Spain (1.7 percent), and Greece (1.6 percent). When the researchers adjusted for age demographics, Portugal and Spain were still in the top five, but the other three countries were replaced by Peru, Oman, and Mexico.

"Because IFR is strongly related to age," the authors report, "population age structure accounted for nearly three-quarters of variation in IFR estimates for in-sample countries on July 15, 2020." But even when that factor was taken into account, "many North American and European countries continued to have high IFRs despite having greater access to health-care resources." The researchers say possible explanations include "high SARS-CoV-2 transmission rates in the care home population of some locations" and "a higher prevalence of comorbidities that increase the severity of COVID-19 disease."

The IFRs implied by CDC seroprevalence research conducted around the same time likewise varied widely across states, ranging from 0.1 percent in Utah to 1.4 percent in Connecticut. As with the international comparisons, age demographics probably explain much of the variation (the median age in Utah is substantially lower than the median age in Connecticut), but other factors (such as preexisting medical conditions) may also be important.

The Lancet study, which covered 190 countries and territories, also found that IFRs fell over time. Adjusted for age demographics, they ranged from 0.17 percent to 1.16 percent on April 15, 2020, and from 0.12 percent to 0.77 percent on January 1, 2021. The median IFR fell from 0.54 percent to 0.35 percent during that period. The age-standardized IFR for the United States, according to these estimates, fell from 0.73 percent to 0.43 percent.

IFRs were dropping well before vaccines were widely available, which may reflect a combination of shifting patient characteristics, improved treatment, and naturally acquired immunity. "The evidence suggests that a range of improvements in clinical management have contributed to substantive improvements in clinical outcomes that are likely to decrease the IFR over time," the researchers say.

Vaccination, which dramatically reduces the risk of life-threatening symptoms, can be expected to push IFRs down further, although age still seems to be the most important predictor of infection outcomes. As Reason's Elizabeth Nolan Brown noted in September, "a Financial Times analysis found the COVID-19 mortality risk is about equal for vaccinated 80-year-olds and unvaccinated 50-year-olds, while an unvaccinated 30-year-old has less chance of dying than a vaccinated 45-year-old."

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The Texas Review of Law & Politics has published my new article, The "Essential" Second Amendment. Here is the abstract:

Constitutional litigation over the Second Amendment has followed a familiar pattern. In the decade since Heller and McDonald, countless cases have turned on a foundational question: how much danger does the weapon pose? But in 2020, the courts were suddenly presented with a novel constitutional question: how much danger does obtaining the weapon pose? During the COVID-19 pandemic, state and local governments enacted complete prohibitions on the acquisition of firearms. Willing buyers were ready to comply with all extant gun-control regulations. But these governments shuttered firearm stores completely. These policies were adopted not to stop the sale of guns but to stop the spread of the novel coronavirus. In short order, these governments deemed the Second Amendment as "non-essential." The ability to purchase firearms was treated no differently than the ability to purchase other conveniences. Still, the practices in the overwhelming majority of the states reflected what should be a basic tenet of constitutional law: enumerated fundamental constitutional rights must be "essential" rights. And the state cannot impose an absolute and arbitrary prohibition on the exercise of the essential Second Amendment.

This Article proceeds in four parts. Part I considers what the word "essential" really means. Part II undertakes a fifty-state survey of restrictions imposed on the right to keep and bear arms during the pandemic. Part III analyzes another metric to decide whether the right to keep and bear arms is essential: the people. During the COVID-19 pandemic, gun sales surged. In times of civil unrest, millions of Americans viewed the acquisition of firearms as essential. Part IV revisits two district court decisions that upheld restrictions on the right to keep and bear arms during the pandemic. These cases followed the framework Chief Justice Roberts established in South Bay Pentecostal Church v. Newsom. These courts should have followed the framework Justice Kavanaugh established in Calvary Chapel v. Sisolak and that was formally adopted by the Court in Roman Catholic Diocese of Brooklyn v. Cuomo. If any businesses are treated as essential, firearm stores must presumptively be afforded that same status. The right to keep and bear arms ought to be afforded "most-favored status." And the state must justify its decision to deprive people of their right to keep and bear arms.

The COVID-19 pandemic has illustrated once again that in times of crisis, the government will forcibly separate the people and their arms. The people must be vigilant to protect this essential right.

I began writing this piece shortly after the pandemic began. More than two years later, some of these cases are still pending in the courts.

I also commend the other articles in this excellent volume of TROLP, including a very timely article by Alyson M. Cox and O. Carter Snead who reject an incrementalist approach to overturning Roe.

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After the historic one-year enrollment drop of 2.5 percent in the 2020-21 school year, public K-12 attendance has stubbornly refused to bounce back. Two new studies further indicate that the biggest two-year declines correlate strongly with the most restrictionist school-opening policies, particularly in Democratic-controlled big cities.

The American Enterprise Institute (AEI) released a report Wednesday showing that nationwide enrollment in government-run public schools in the 46 states under review declined an additional 0.2 percent in 2021-22, but with a measurable split at the extreme ends of pandemic-related school policies. The most remote school districts lost an additional 1.2 percent enrollment on average in 2021-22, contributing to a two-year decline of 4.4 percent; while the most open districts rebounded by 0.9 percent this year and have lost just 1.1 percent overall since COVID-19 hit.

The divergence in pandemic school policies has never correlated with comparative rates of campus spread, but rather with the comparative concentration of Democratic voters and locally powerful teachers unions. These factors, along with high costs of living and historically low rates of immigration, have combined to make the past two years an enrollment wipeout in the biggest cities.

New York City, the largest district in the nation, has lost a staggering 9.5 percent of students since the onset of COVID-19. Los Angeles Unified, the second largest, where unions have had particular success in getting most every restriction and compensation they wanted, the student body shrank 8.1 percent. School Superintendent Alberto Carvalho, in an article earlier this month at The 74 Million, described the confluence of the enrollment drop and the drying out of the nearly $200 billion in emergency federal COVID relief funds to K-12 schools as potentially "Armageddon."

Unless the long-term trend of Angelenos fleeing the public school system somehow reverses, Carvalho warned, "It's going to be a hurricane of massive proportions."

The only two of the country's top 10 school districts that haven't lost population since the pandemic hit are both in Florida (Orange and Hillsborough counties), where Gov. Ron DeSantis ordered schools open by edict in the fall of 2020. Of the 46 states in AEI's study, only four added students to their public schools: The heavily Republican South Dakota, Utah, North Dakota, and Idaho. The six states that lost between 0 percent and 1 percent during that time, including Florida and Texas, are also GOP strongholds.

"How schools operated affected family decisions," AEI Education Policy Studies Deputy Director Nat Malkus told the Washington Post.

The school tracking service Burbio earlier this month released a study of 2021-22 enrollment trends in 40 states, breaking out data among the four main geographic designations used by the National Center for Education Statistics: Rural, Town, Suburban, and City. Notably, only the "city" category saw a decline this year:

Burbio

"The effects of the sharp, recent enrollment declines may be long-lived," Stanford University Education Professor Thomas Dee told The 74 Million. "The fiscal consequences will remain for some while."

K-12 spending amounts to around 20 percent of all state and local government spending. If the customer base for this freely offered product continues to reject it in favor of more expensive options, not only will education budgets (which are usually tied to enrollment numbers) get slashed, the political enthusiasm for paying the price tag via taxation will likely wither.

America was a global outlier in the amount of closures and restrictions imposed on public schools. The Centers for Disease Control and Prevention (CDC) in particular played a key institutional role in mixing messages and producing senseless over-caution. Remote learning didn't just repel students, it consigned the ones who remained to staggering amounts of learning loss. We do not yet understand the full extent of the hit, but what public education decision makers did to public schools the past two years will likely go down as one of the most flagrant and impactful acts of institutional self-harm in the 21st century.

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"Don't believe the claim that the internet has corrupted our public discourse with misinformation," says Jeffrey A. Singer, a senior fellow at the Cato Institute and general surgeon in Phoenix, Arizona. "Experts don't have a monopoly on the search for truth."

In his recent article, "Against Scientific Gatekeeping," which appeared in Reason's May 2022 issue, Singer examined the politicization of the COVID-19 pandemic, in which those who broke with the establishment were branded cranks or accused of having blood on their hands. "The medical science priesthood has a long history of treating outside-the-box thinkers harshly," he writes.

Most theories turn out to be wrong—"American science fiction and fantasy writer Theodore Sturgeon said, '90 percent of everything is crap,'" Singer notes. "But the remaining 10 percent can be important," which is one of the major lessons of the pandemic.

"Science should be a profession, not a priesthood."

Photo Credits: Institute of Oceanographic Sciences (Great Britain); National Institute of Oceanography of Great Britain; Great Britain. Colonial Office. Discovery Committee, No restrictions, via Wikimedia Commons; Dr. Dalia Ibrahim, CC BY-SA 3.0, via Wikimedia Commons; BSIP/Newscom; Gavin Kent Mirrorpix/Newscom; Dr. Laughlin Dawes, CC BY 3.0, via Wikimedia Commons; Tamar Hayardeni, CC BY 3.0, via Wikimedia Commons; Gupta 1 Sharkpixs/ZUMApress/Newscom; PLOS Video Channel, CC BY 3.0, via Wikimedia Commons (for iondannis photo); Abaca Press/Berzane; Nasser/Abaca/Sipa USA/Newscom; Internet Archive, Archive.org; Envato Elements.

Music Credits: "Blue Race," by Out of Flux, via Artlist; "Ant," by Evgeny Bardyuzha via Artlist.

Written by Natalie Dowzicky and Jeffrey A. Singer; narrated by Singer; edited by Regan Taylor; camera by Benjamin Gaskell.

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Anthony Fauci was "surprised and disappointed" by last week's ruling against the mask mandate for travelers issued by the Centers for Disease Control and Prevention (CDC). "This is a CDC issue," President Joe Biden's top medical adviser told CNN. "It should not have been a court issue."

Fauci, who objects to federalism as well as judicial review, embodies the mild-mannered arrogance of technocrats who assume their scientific expertise trumps the rule of law. Because they believe they know what is best for us, they are dismayed by any attempt to limit their influence or restrain their power.

Fauci did vaguely criticize the substance of U.S. District Judge Kathryn Kimball Mizelle's decision, calling her reasoning "not sound" and "not particularly firm." But his main point was that she had no business determining whether the CDC had complied with the law, because courts should not be "getting involved in things that are unequivocally public health decisions."

White House Press Secretary Jen Psaki concurred: "Public health decisions shouldn't be made by the courts. They should be made by public health experts."

But Mizelle did not make a public health decision; she made a legal decision, based on her understanding of the relevant statute. Contrary to Psaki's implication, courts are not only authorized but obligated to make such decisions, as she surely would have conceded had Mizelle ruled in the CDC's favor.

The Justice Department is appealing Mizelle's ruling, but it did not seek a stay that would have restored the mask requirement while the case is pending. Although that omission may seem puzzling given the CDC's claim that the mandate "remains necessary for the public health," it makes sense if the administration's goal is to facilitate future power grabs by keeping the agency's statutory authority as vague as possible.

If there is "no place for the courts" to assess the legality of disease-control edicts, as Fauci maintains, it follows that the Supreme Court erred not only by blocking the CDC's nationwide eviction moratorium but even by taking up the issue. Evidently, it also should have stayed out of the dispute over the federal vaccination-or-testing requirement for private employees, which it likewise deemed illegal.

Fauci's impatience with legal niceties has been apparent for some time. "The states are very often given a considerable amount of leeway in doing things the way they want to do it," he complained in a 2020 interview with BBC Radio 4, "as opposed to in response to federal mandates, which are relatively rarely given."

The result, Fauci explained, was "a considerable disparity, with states doing things differently in a nonconsistent way." That "disparity," he averred, "has been a major weakness in our response" to the pandemic.

The "leeway" that bothers Fauci is required by the Constitution, which leaves states with the primary responsibility for addressing public health threats under a broad "police power" that the federal government was never given. So his beef is not simply with the way COVID-19 policy happened to play out in the United States; it is an objection to our system of government.

That system limits the federal government to specifically enumerated powers, which do not include a general mandate to fight communicable diseases or protect public health. At the same time, the Constitution and Supreme Court precedent prohibit states as well as the federal government from violating certain rights, even during a public health emergency.

That explains why courts heard and sometimes upheld objections to COVID-19 control policies that restricted religious gatherings, the right to keep and bear arms, and access to abortion. If Fauci is right that such policies should be left to government experts, all of those interventions were misbegotten, regardless of their legal merits.

"It's a bad precedent when decisions about public health issues are made by people [who] don't have experience or expertise in public health," Fauci told Fox News on Saturday. Americans should be thankful that the courts do not share his confusion.

© Copyright 2020 by Creators Syndicate Inc.

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Rhode Island state Sen. Sam Bell  has introduced a bill that would require all unvaccinated residents of the state pay a $50-a-month fine. The fine would apply to everyone eligible for the vaccine. Bell's bill would also force unvaccinated Rhode Islanders to pay double their state income taxes.

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After a federal judge vacated the federal mask mandate for travelers last week, the Justice Department waited two days before filing an appeal. It said an appeal was contingent on whether the Centers for Disease Control and Prevention (CDC) thought the mandate "remains necessary for public health." On Wednesday evening, the CDC confirmed that, in its view, "an order requiring masking in the indoor transportation corridor remains necessary for the public health."

Yet while the Justice Department is now asking the U.S. Court of Appeals for the 11th Circuit to review U.S. District Judge Kathryn Kimball Mizelle's ruling against the mask mandate, it did not seek a stay that would allow the CDC to reinstate this supposedly necessary edict while the case is pending. The mandate's supporters say the appeal is aimed not at restoring the mask requirement so much as upholding the CDC's lawful public health authority. The contours of that authority remain nebulous, however, and the version promoted by the agency's defenders is alarmingly broad.

"Basically, [the Biden administration] is giving up on the mask mandate," Georgetown University law professor Lawrence Gostin told The New York Times on Friday. "The administration's goal is a legal principle, which is to ensure that the CDC has strong public health powers to fight COVID and to fight future pandemics. And it appears much less important to them to quickly reinstate the mask mandate."

Gostin, who according to the Times "advised the White House on the case," elaborates on that "legal principle" in a Times opinion piece published today. "Should the federal government have the power to address broad public health emergencies?" Gostin and civil rights lawyer Duncan Hosie write. As they see it, Mizelle "effectively answered no."

Regardless of what you think about the wisdom of the CDC's mask mandate, Gostin and Hosie say, "you should be alarmed by her decision," because it "could prevent the federal government from effectively and nimbly responding to future pandemics." Worse, "her approach and rationale could undermine the federal government's authority to confront other big problems, from occupational health and safety to climate change."

Gostin and Hosie see the mask mandate as a straightforward example of administrative law, which allows executive agencies to "fill in the details" based on a general charge from Congress. "Up until very recently, the statutory authority of the Centers for Disease Control and Prevention to try to curb the interstate or international transmission of an infectious, deadly disease was not in doubt," they write. "The Public Health Service Act authorizes the C.D.C. to 'make and enforce such regulations' that in its 'judgment are necessary to prevent the introduction, transmission or spread of communicable diseases.'"

Gostin and Hosie are quoting from the first sentence of 42 USC 264(a), the provision that the CDC cited as the legal basis for requiring that air travelers, public transit users, and taxi or ride-share passengers wear face masks. But as the Supreme Court noted when it blocked the CDC's eviction moratorium, reading that opening sentence as a general grant of power "would give the CDC a breathtaking amount of authority."

All sorts of restrictions and requirements—including nationwide lockdowns, a general vaccine mandate, and highly invasive limits on personal behavior—could be justified in the name of disease control. As the Court observed, "it is hard to see what measures this interpretation would place outside the CDC's reach, and the Government has identified no limit…beyond the requirement that the CDC deem a measure 'necessary.'" The Court found it highly implausible that such powers were lurking in a rarely used statutory provision, only to be discovered by the CDC 76 years after the law was enacted.

It is doubtful that the delegation of such vast authority to the CDC would be consistent with the separation of powers, which limits the executive branch's role in lawmaking, or with federalism, since protecting public health is primarily a state and local function. That broad interpretation of Section 264(a) also seems inconsistent with the list of specific disease control measures that follows the opening sentence: "inspection, fumigation, disinfection, sanitation, pest extermination, [and] destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings."

If the CDC had plenary power to "prevent the introduction, transmission or spread of communicable diseases," there would be no need to mention specific policies. And while Section 264(a) also refers to "other measures" deemed "necessary," the Supreme Court concluded that the list of specific examples "informs the grant of authority by illustrating the kinds of measures that could be necessary."

The question for Mizelle, then, was whether the CDC's mask mandate was similar to any of the listed measures. The CDC argued that the policy fell under the heading of "sanitation." In her 59-page ruling, Mizelle offered several reasons for rejecting that interpretation.

Mizelle said common usage when Congress passed the Public Health Service Act in 1944 suggested that "sanitation" should be read narrowly, encompassing measures that involve cleaning something rather than keeping something clean. She noted that Section 264(a) seems "limited to property," while other provisions of the Public Health Service Act deal with isolation and quarantine of individuals. If "sanitation" were read as broadly as the CDC prefers, she said, it would subsume other measures on the list, again raising the question of why Congress bothered to mention them.

Mizelle also was concerned that the CDC's understanding of "sanitation" would raise the same basic issue as a broad reading of the provision's first sentence or of "other measures." According to one definition cited by the CDC, she noted, sanitation means the "applying of measures for preserving and promoting public health," which would give the agency carte blanche to impose any policy it thought would help reduce the spread of disease—the same interpretation that the Supreme Court rejected.

The history of Section 264(a)'s application, Mizelle argued, is another reason to doubt the CDC's current understanding of the law. Prior to 2020, she said, "perhaps the most notable use of this statute" was "a decision to ban small turtles due to a risk of salmonella."

Gostin and Hosie describe Mizelle's reading of "sanitation" as "strained and tendentious," and even critics of the mask mandate have questioned her distinction between two senses of the word. While Mizelle's analysis is "very thorough," George Mason law professor Ilya Somin said in a Volokh Conspiracy post last week, "I remain skeptical." He added:

The broader definition of "sanitation" strikes me as more intuitive and more in accordance with ordinary usage than the narrow one. Among other things, the narrow definition would lead to some counterintuitive results. For example, if the CDC enacted a regulation barring defecation on the floor of a plane or train, that would not qualify as "sanitation" under Judge Mizelle's approach because it does not clean anything, but merely "keep[s] something clean" (in this case, the floor). Yet, I think, most ordinary people—both today and in 1944—would agree that a ban on defecating on the floor qualifies as a "sanitation" policy. And, as Judge Mizelle notes, courts are generally required to follow the ordinary meaning of words in a federal statute, unless there is some strong evidence to the contrary.

Somin thought Mizelle's "best argument against the broad definition of 'sanitation'" was the concern that it would violate "the canon against redundancy," since "it does seem like the broad definition of 'sanitation' might make 'disinfection,' 'destruction,' and 'fumigation' redundant." But he suggested that problem could be avoided by defining "sanitation" broadly enough to encompass the mask mandate yet narrowly enough to avoid the overlap:

"Sanitation" could be interpreted to refer to ordinary cleaning measures—both those that "remove refuse and debris" and those that help prevent it from arising in the first place (as with the rule against defecation!). By contrast, terms like "fumigation" and "disinfection" might refer to the use of chemical agents and other more sophisticated techniques to forestall (in the case of "fumigation") or eliminate (in the case of "disinfection") infection. "Destruction" also has a distinct meaning, of course, as even a broad definition of the other terms doesn't necessarily allow complete destruction of possibly dangerous articles.

Such an approach probably would not satisfy Gostin and Hosie, who seem intent on reading Section 264(a) as giving the CDC a general disease control authority. "The C.D.C. claims no power that Congress [has] not explicitly given it," they write. In their view, it makes sense that "an agency tasked with slowing the interstate spread of a highly infectious virus would regulate interstate travel" (although the CDC's mask mandate also applied to intrastate travel such as bus, subway, and Uber rides). Gostin and Hosie, unlike the Supreme Court, also think that mission is clearly broad enough to encompass the CDC's eviction moratorium (which likewise covered intrastate conduct), because that policy "was intended to prevent mass evictions and keep people out of congregate settings where Covid spreads most easily."

In addition to concluding that the CDC had exceeded its authority under Section 264(a), Mizelle said the agency had violated the Administrative Procedure Act (APA) by failing to properly justify its decision to dispense with the usual public notice and comment procedures for new regulations. She also deemed the mask mandate "arbitrary and capricious" because the CDC "failed to adequately explain its reasoning."

Somin does not think much of the latter claim. "While the transportation mask-mandate policy is badly flawed," he says, "it is not so completely ridiculous as to be 'arbitrary and capricious.'"

But Somin thinks "there is a very plausible case that the CDC violated the APA" by dodging notice and comment. "Even if the emergency nature of the situation justified bypassing notice-and-comment processes when the policy was first adopted in early 2021," he says, "there is much less excuse for continuing to circumvent normal procedure during the many months that have passed since then. Notice and comment requirements, it should be emphasized, are more than a mere technicality. They allow people affected by regulations to have some voice, and to influence the government to mitigate their burdens."

The 11th Circuit need not accept all of Mizelle's arguments against the mask mandate to agree with her that it was legally invalid. And even if it agrees with the CDC that the mandate fits within Section 264(a), that will not amount to endorsing the sweeping powers that the agency unsuccessfully asserted in the eviction moratorium case, which the Supreme Court already has rejected.

The Biden administration may be hoping for a different outcome. "If a case is on appeal when the dispute becomes moot for reasons unrelated to the litigation," the Times notes, "an appeals court can remand it to the district court with instructions not only to dismiss the case but to vacate the district court's ruling—meaning wipe it from the books." Citing University of Texas at Austin law professor Stephen Vladek, the Times suggests the administration "may be giving itself that option after the mandate's planned expiration on May 3." Instead of clarifying the CDC's statutory authority, that result would leave it vague, allowing the agency to continue auditioning for the role of disease dictator.