Portents of Harris-Biden Nation

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Joe Biden is a weak figurehead, a one-time moderate faltering over a coalition of leftists. If you wonder why Nancy Pelosi floated legislation to establish a committee on “presidential capacity,” don’t think so much about her loathing for Donald Trump; think about poor Joe Biden. He might be shunted aside just as soon as the power grab isn’t too obvious. They know well how Barack Obama famously said, “Don’t underestimate Joe’s ability to f*ck things up.” But whether Joe Biden is in control of anything, think about who he stands with:

The Violent Left: Marxist Antifa and Marxist BLM; opposed to law and order; burning cities; spewing eliminationist rhetoric; hissing n*g**r at black cops;

Police Defunders: won’t acknowledge good policing is needed more than ever, especially in minority communities;

“Ministers of Truth”: social media platforms exerting control over what we say and what we see;

Re-Educators: democrats push for a “Truth and Reconciliation Commission” to address the “issue” of Trump supporters;

Critical Race Theorists: a Marxist front whereby every word and action is viewed in the context of racial bias and victimization; they want reparations; on your knees.

The Scientistic: who labor under the delusion that “science” should guide all administrative and political decisions. Or someone’s version of science. The very idea is antithetical to the scientific domain, which deals only with falsifiable hypotheses. Few matters of value can be addressed using the tools of science exclusively, nor can they address matters of ethics.

Fear Mongers: would rule by precaution; risks are always worth exaggerating to existential proportions;

Lockdown Tyrants: refuse to acknowledge the steep public health costs of lockdowns; stripping individual liberties indefinitely, including the right to contract, free practice of religion, and assembly;

Insurrectionists: who fabricated a Russian collusion hoax to subvert the 2016 election, and later to overthrow a sitting president;

Gun Confiscators: they will if we let them;

Abortionists: would use federal tax dollars to fund the murder of millions of babies late into pregnancy, primarily black babies;

Fluid-Genderists: insist that children should be encouraged to explore transgenderism;

Taxers: won’t stop with punitive taxes on the wealthy and employers; it’s just not easy to milk high earners in a way that’s sufficient to pay for the fiscal debauchery demanded by the Biden-Harris constituency. Joe says he will raise taxes by $3.4 trillion.

Spenders: $2 trillion of new federal education outlays, including universal pre-K and free community college; the Green New Deal (see below). After all, the democrats are the party that can’t tell the difference between a cut in spending and a reduction in spending growth. If you think Trump is a big spender, their plans are astonishing;

Green New Dealers: would spend trillions to restrict energy choices, transfer U.S. wealth overseas in the name of international carbon reduction, and reduce our standard of living;

Redistributionists: would tax job creators not simply for the benefit of supporting the needy, but for anyone regardless of need (see UBI); this extends to plans to bail out blue states and cities with insolvent public employee pension funds;

Interventionists: would regulate all phases of life, including straws, sugary drinks, and your fireplace; they will burden private initiative; create artificial, politically-favored winners skilled at manipulating regulatory rules for competitive reasons; and create losers who are typically too small to handle the burden;

Medical Socialists: will strip your private health insurance, dictate the care you may receive, fix prices, and regulate physicians and other providers. You’ll love the care abroad, if you can afford to get out when your sick.

Public School Monopolists: poorly performing, beholden to teachers’ unions, unresponsive to taxpayers and often parents; they would happily revoke school choice;

Federal Suburb Rezoners: demanding low-income housing in every community;

Court Packers: to destroy the independent judiciary;

Iran Apologists: give them cash on the tarmac, let them develop their “peaceful” nuclear program; alienate the rest of the Middle East;

Grifters: marketing their influence as public servants for private gain; never exclusive to one side of the aisle, but the Biden family has certainly traded on Joe to enrich themselves;

Smear Merchants: fabricated allegations against Brett Kavanaugh; impugned Amy Coney Barrett’s religious faith;

Perverts: Harvey Weinstein, Anthony Weiner, Jeffrey Toobin, Hunter Biden, and Bill Clinton, to name just a few; even Joe has his #MeToo accusers;

I could go on and on, but Harris-Biden voters should get a strong taste of their compatriots from the list above. It reflects the overriding prescriptive, bullying, and sometimes violent nature of the Left. They’d have you think all material goods can be free. Presto! They presume to have the knowledge and wisdom to plan the economy and your life better than you, Better than free markets and free people. What they’ll need is a lot of magic, or it won’t go well. You’ll get poverty and tears. I’m not sure Joe has the desire or the wherewithal to rein in his coalition of idiots.

The Favored Cause of Death

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The CDC changed its guidelines on completion of death certificates on April 5th of this year, and only for COVID-19 (C19), just as infections and presumed C19 deaths were ramping up. The substance of the change was to broaden the definition under which death should be attributed to C19. This ran counter to CDC guidelines followed over the previous 17 years, and the change not only makes the C19 death counts suspect: it also makes comparisons of C19 deaths to other causes of death unreliable, since only C19 is subject to the new CDC guidance. That’s true for concurrent and historical comparisons. The distortions are especially bad relative to other respiratory diseases, but also relative to other conditions that are common in mortality data.

The change in the CDC guidelines was noted in a recent report prepared for the Florida House of Representatives. It was brought to my attention by a retweet by Justin Hart linked to this piece on Andrew Bostom’s site. Death certificates are divided into two parts: Part 1 provides four lines in which causes of death are listed in reverse clinical order of events leading to death. Thus, the first line is the final clinical condition precipitating death. Prior clinical events are to be listed below that. The example shown above indicates that an auto accident, listed on the fourth line, initiated the sequence of events. Part 2 of the certificate is available for physicians or examiners to list contributing factors that might have played a role in the death that were not part of the sequence of clinical events leading to death.

The CDC’s change in guidelines for C19, and C19 only, made the criteria for inclusion in Part 1 less specific, and it essentially eliminated the distinction between Parts 1 and 2. The following appears under “Vital Records Criteria”:

A death certificate that lists COVID-19 disease or SARS-CoV-2 as a cause of death or a significant condition contributing to death.”

How much difference does this make? For one thing, it opens the door to C19-attributed deaths in cases of false-positive PCR tests. When large cohorts are subject to testing — for example, all patients admitted to hospitals — there will always be a significant number of false positives even when test specificity is as high as 98 – 99%.

The elimination of any distinction between Parts 1 and 2 causes other distortions. A review of the Florida report is illustrative. The House staff reviewed almost 14,000 certificates for C19-19 attributed deaths. Over 9% of those did not list C19 among the clinical conditions leading to death. Instead, in those cases, C19 was listed as a contributing factor. Under the CDC’s previous guidelines, those would not have been counted as C19 deaths. The Florida House report is conservative in concluding that the new CDC guidelines inflated C19 deaths by only those 9% of the records examined.

There are reasons to think that the exaggeration was much greater, however. First, the Florida House report noted that nearly 60% of the certificates contained information “recorded in a manner inconsistent with state and national guidance”. In addition, almost another 10% of the fatalities were among patients already in hospice! Do we really believe the deaths of all those patients whose diseases had reached such an advanced stage should be classified as C19 fatalities? And another 1-2% listed non-C19 conditions as the immediate and underlying causes.

Finally, more than 20% of the certificates listed C19 alone as a cause of death despite a range of other contributing conditions or co-morbidities. This in itself may have been prompted by the change in the CDC’s guidelines, as the normal standards often involve a “comorbidity” as the initial reason for hospitalization — in that case a clinical event ordinarily listed in Part 1. The high rate of errors and the fact that roughly two-thirds of the deaths reviewed occurred in the hospital, where patients are all tested and often multiple times, raises the specter that up to 20% more of the C19 deaths were either erroneous and/or misclassified due to false positives.

(An exception may have occurred in New York, where an order issued in March by Governor Andrew Cuomo to return C19-positive residents of nursing homes (including suspected C19 cases) back to those homes, The order was made before the change in CDC guidelines and wasn’t rescinded until later in April. There is reason to believe that some of the C19 deaths among nursing home residents in New York were undercounted.)

All told, in the Florida data we have potential misclassification of deaths of 9% + 9% + 2% + 20% = 40%, or inflation relative to actual C19 deaths of up to 40%/60% = 67%! I strongly doubt it’s that high, but I would not consider a range of 25% – 50% exaggeration to be unreasonable.

We know that reports of C19 deaths lag actual dates of death by anywhere from 1 to 8 weeks, sometimes even more. This is misleading when no effort is made to explain that difference, which I’ve never heard out of a single journalist. We also know that false positive tests inflate C19 deaths. The Florida report gives us a sense of how large that exaggeration might be. In addition, the Florida data show that the CDC guidelines inflate C19 deaths in other ways: as a mere contributing factor, it can now be listed as the cause of death, unlike the treatment of pneumonia as a contributing factor, for instance. The same kind of distortion occurs when patients contract C19 (or have a false positive test) while in hospice.

There is no doubt that C19 led to “excess deaths” relative to all-cause mortality. However, many of these fatalities are misclassified, and it’s likely that a large share were and are lockdown deaths as opposed to C19 deaths. That’s tragic. The CDC has done the country a massive disservice by creating “special rules” for attributing cause-of-death to C19. If reported C19 fatality rates reflected the same rules applied to other conditions, our approach to managing the pandemic surely would have inflicted far less damage to health and economic well being.

Fall Coronavirus Season

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We’ve known for some times that COVID-19 (C19) follows seasonal patterns typical of the flu, though without the flu’s frequent antigenic drift. Now that we’re moving well into autumn, we’ve seen a surge in new C19 case counts in Europe and in a number of U.S. states, especially along the northern tier of the country.

The new case surge began in early to mid-September, depending on the state, and it’s been coincident with another surge in tests. From late July through early October, we had a near doubling in the number of tests per positive in the U.S. An increase in tests also accompanied the previous surge during the summer, which claimed far fewer lives than the initial wave in the early spring. In the summer, infections were much more prevalent among younger people than in the spring. Vitamin D levels were almost certainly higher during the summer months, our ability to treat the virus had also improved, and immunities imparted by prior infections left fewer susceptible individuals in the population. We have many of those advantages now, but D levels will fade as the fall progresses.

As for the new surge in cases, another qualification is that false positives are still a major testing problem; they inflate both case counts and C19-attributed deaths. In the absence of any improvement in test specificity, of which there is no evidence, the exaggeration caused by false positives grows larger as testing increases and positivity rates fall. So take all the numbers with that as a caveat.

How deadly will the virus be this fall? So far in Europe, the trends look very promising. Kyle Lamb provided the following charts from WHO on Twitter yesterday. (We should all be grateful that Twitter hasn’t censored Kyle yet, because he’s been a force in exposing alarmism in the mainstream media and among the public health establishment.) Take a look at these charts, and note particularly the lag between the first wave of infections and deaths, as well as the low counts of deaths now:

If the lag between diagnosis and death is similar now to the spring, Europe should have seen a strong upward trend in deaths by now, yet it’s hardly discernible in most of those countries. The fatality rates are low as well:

As Lamb notes, the IFRs in the last column look about like the flu, though again, the reporting of deaths and their causes are often subject to lags.

What about the U.S.? Nationwide, C19 cases and attributed death reports declined after July. See the chart below. More recently, reported deaths have stabilized at under 700 per day. Note again the relatively short lags between turns in cases and deaths in both the spring and summer waves.

Clearly, there has been no acceleration in C19 deaths corresponding to the recent trend in new cases. Northeastern states that had elevated death rates in the spring saw no resurgence in the summer; southern states that experienced a surge in the summer have now enjoyed taperings of both cases and deaths. But with each season, the virus seems to roll to regions that have been relatively unscathed to that point. Now, cases are surging in the upper Midwest and upper mountain states, though some of these states are lightly populated and their data are thin.

A few state charts are shown below, but trends in deaths are very difficult to tease out in some cases. First, here are new cases and reported deaths in Michigan, Wisconsin, and Minnesota. There is a clear uptrend in cases in these states along with a very slight rise in deaths, but reported deaths are very low.

Next are Idaho, Montana, North Dakota, and South Dakota. A slight uptrend in cases began as early as August. Idaho and Montana have had few deaths, so they are not plotted in the second chart. The Dakotas have had days with higher reported deaths, and while the data are thin and volatile, the visual impression is definitely of an uptrend in deaths.

The following states are somewhat more central in latitude: Colorado, Illinois, and Ohio. There is a slight upward trend in new cases, but not deaths. Illinois is experiencing its own second wave in cases.

Out of curiosity, I also plotted Massachusetts, Pennsylvania, and New Jersey, all of which suffered in the first wave during the spring. They are now experiencing uptrends in cases, especially Massachusetts, but deaths have been restrained thus far.

The upshot is that states having little previous exposure to the virus are seeing an uptrend in deaths this fall. The same does not seem to be happening in states with significant prior exposure, at least not yet.

There are major questions about the reasons for the lingering death counts in the U.S.. But consider the following: first, the infection fatality rate (IFR) keeps falling, despite the stubborn level of daily reported deaths. Second, deaths reported have increasingly been pulled forward from deaths that actually occurred in the more distant past. This sort of “laundering” lends the appearance of greater persistence in deaths than is real. Third, again, false positives exaggerate not just cases, but also C19 deaths. Hospitals test everyone admitted, and patients who test positive for C19 are reimbursed at higher rates under the CARES Act; Medicare reimburses at a higher rates for C19 patients as well.

We’re definitely seeing a seasonal upswing in C19 infections in the US., now going on five weeks. In Europe, the surge in cases began slightly earlier. However, in both Europe and the U.S., these new cases have not yet been associated with a meaningful surge in deaths. The exceptions in the U.S. are the low-density upper mountain states, which have had little prior exposure to the virus. The lag between cases and deaths in the spring and summer was just two to three weeks, and while it’s too early to draw conclusions, the absence of a surge in deaths thus far bodes well for the IFR going forward. If we’re so fortunate, we can thank a combination of factors: a younger set of infecteds, earlier detection, better treatment and therapeutics, lower viral loads, and a subset of individuals who have already gained immunity.

Lockdowns Subvert Public Health and Life Itself

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Acceptance of risk is a necessary part of a good life, and extreme efforts to avoid it are your own business. Government has no power to guarantee absolute safety, nor should we presume to have such a right. Ongoing COVID lockdowns are an implicit assertion of exactly that kind of government power, despite the impotence of those efforts, and they constitute a rejection of more fundamental rights.

Lockdowns have had destructive effects on health and economic well being while conferring little if any benefit in mitigating harm from the virus. The lockdowns were originally sold as a way to “flatten the curve”, that is, to avoid a spike in cases and an overburdened health care system. However, this arguably well-qualified rationale later expanded in scope to encompass the mitigation of smaller and much less deadly outbreaks among younger cohorts, and then to the very idea of extinguishing the virus altogether. It’s become painfully obvious that such measures are not capable of achieving those goals.

In the U.S., the ongoing lockdowns have been a cause célèbre largely on the interventionist Left, and they have been prolonged mainly by Democrats at various levels of government. In a way, this is not unlike many other policies championed by the Left, often ostensibly designed to help members of the underclasses: instead, those policies often destroy or wrongly obviate incentives and promote dependency on the state. In this case, the plunge into dependency is a reality the Left would very much like to ignore, or to blame on someone else. You know who.

The lockdowns have been largely unsuccessful in mitigating the spread of the virus. At the same time, they have been used as a pretext to deny constitutional rights such as the free practice of religion, assembly, and a broad range of unenumerated rights under the “penumbra” of the Bill of Rights and the Ninth Amendment. What’s more, the severity of the economic blow caused by lockdowns has been borne disproportionately by the working poor and the small businesses who employ so many of them.

Lockdowns are deadly. It’s not clear that they’ve saved any lives, but they have massively disrupted the operation of the health care system with major consequences for those with chronic and undiagnosed conditions. The lockdowns have also led to spikes in mental health issues, alcoholism, drug abuse, and deaths of despair. A recent study found that over 26% of the excess deaths during the pandemic were non-COVID deaths. Those deaths were avoidable or accelerated, whereas the lockdowns have failed to meaningfully curtail COVID deaths. Don’t tell me about reduced traffic fatalities: that reduction is relatively small relative to the increase in non-COVID excess deaths (see below).

What proof do we have that lockdowns cause excess deaths? See this study in The Lancet on cancer deaths due to lockdown-induced delays in diagnoses. See this study on UK school closures. See this Oxfam International report on lockdown-induced starvation. Other reports from the UK suggests that lockdown deaths are widespread, having taken nearly 2,800 per week early in the pandemic, and many other deaths yet to occur have been made inevitable by lockdowns. Doctors in the U.S. have warned that lockdowns are a “mass casualty incident”, and a German government study warned of the same.

The Ethical Skeptic (TES) on Twitter has been tracking a measure of lockdown deaths for some time now. The following graphic provides a breakdown of excess non-COVID deaths since the start of the pandemic. The total “pie” shows almost 320,000 excess deaths through September 26th (avoiding less complete counts in recent weeks), as reported by the CDC. COVID accounted for 202,000 of those deaths, based on state-level reporting. Of the remaining 117,000 excess deaths, TES uses CDC data to allocate roughly 85,000 to various causes, the largest (more than half) being “Suicide, Addiction, Abandonment, and Abuse”. Other large categories include Cardio/Diabetes, Stroke, premature Alzheimers/Dementia death, and Cancer Access. Nearly 32,000 excess deaths remain as a “backlog”, not yet reported with a cause by states.

Also of interest in the graphic are estimates of life-years lost. The vast bulk of COVID victims are elderly, of course, which means that any estimate of lost years per victim must be relatively low. On the other hand, most non-COVID, lockdown-related deaths are among younger victims, with correspondingly greater life-years lost. TES’s aggregate estimate is that lockdown-related excess deaths involve double the life-years lost of COVID deaths. Of course, that is an estimate, but even granting some latitude for error, the reality is horrifying!

John Tierney in City Journal cites several recent studies concluding that lockdowns have been largely ineffective in Europe and in the U.S. While Tierney doesn’t rule out the possibility that lockdowns have produced some benefits, they have carried excessive costs and risks to public health going forward, such as lingering issues for those having deferred important health care decisions as well as disruption in future economic prospects. Ultimately, lockdowns don’t accomplish anything:

While the economic and social costs have been enormous, it’s not clear that the lockdowns have brought significant health benefits beyond what was achieved by people’s voluntary social distancing and other actions.

Tierney also discusses the costs and benefits of lockdowns in terms of life years: quality-adjusted life-years (QALY), which is a widely-used measure for evaluating of the use of health care resources:

By the QALY measure, the lockdowns must be the most costly—and cost-ineffective—medical intervention in history because most of the beneficiaries are so near the end of life. Covid-19 disproportionately affects people over 65, who have accounted for nearly 80 percent of the deaths in the United States. The vast majority suffered from other ailments, and more than 40 percent of the victims were living in nursing homes, where the median life expectancy after admission is just five months. In Britain, a study led by the Imperial College economist David Miles concluded that even if you gave the lockdown full credit for averting the most unrealistic worst-case scenario (the projection of 500,000 British deaths, more than ten times the current toll), it would still flunk even the most lenient QALY cost-benefit test.”

We can now count the World Health Organization among the detractors of lockdowns. According to WHO’s Dr. David Nabarro:

Lockdowns just have one consequence that you must never ever belittle, and that is making poor people an awful lot poorer…. Look what’s happened to smallholder farmers all over the world. … Look what’s happening to poverty levels. It seems that we may well have a doubling of world poverty by next year. We may well have at least a doubling of child malnutrition.

In another condemnation of the public health consequences of lockdowns, number of distinguished epidemiologists have signed off on a statement known as The Great Barrington Declaration. The declaration advocates a focused approach of protecting the most vulnerable from the virus, while allowing those at low risk to proceed with their lives in whatever way they deem acceptable. Those at low risk of severe disease can acquire immunity, which ultimately inures to the benefit of the most vulnerable. With few, brief, and local exceptions, this is how we have always dealt with pandemics in the past. That’s real life!

COVID, Trump, and Tyrants

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I’ve said this before, but it bears repeating: allegations of the White House’s “poor leadership” and preparedness for COVID-19 (C19) are a matter of selective memory. At the link above, I “graded” Trump’s pandemic job performance through May. Among other things, I said:

Many have criticized the Trump Administration for not being ‘ready’ for a pandemic. I assign no grade on that basis because absolutely no one was ready, at least not in the West, so there is no sound premise for judgement. I also view the very general charge that Trump did not provide “leadership” as code for either ‘I don’t like him’, or ‘he refused to impose more authoritarian measures’, like a full-scale nationwide lockdown. Such is the over-prescriptive instinct of the Left.”

The President of the United States does not have the constitutional authority to impose a national lockdown, though Trump himself seemed confused at times as to whether he had that power. However, on this basis at least, the ad nauseam denigration of his “leadership” is vapid. At this point, the course of the pandemic in the U.S. is less severe than in several other industrialized countries who didn’t even have Andrew Cuomo around to exacerbate the toll, and it’s still not as deadly in per capita terms as the Asian Flu of 1957-58.

Who exactly was “ready” for C19? Perhaps critics are thinking of South Korea, or parts of South Asia. Those countries might have been “ready” to the extent that they had significant prior exposure to SARS viruses. There was already some degree of immunological protection. Those countries also were exposed to an earlier genetic variant of C19 that was much less severe than the strain that hit most of the western world. These are hardly reasons to blame Trump for a lack of “readiness”.

A related charge I hear all the time is that Trump “ignored the advice of medical experts“, or that he “ignored the science“. Presumably, those “experts” include the darling of the Prescriptive Class, Dr. Anthony Fauci. On February 28, Dr Fauci said:

Right now, at this moment, there’s no need to change anything you’re doing on a day by day basis.

All-righty then! So this was the advice Trump “should” have followed. Oh, wait… he did! And Fauci, on March 9, said there was no reason for young, healthy people to avoid cruise ships.

Likewise, Dr. Robert Redfield, Director of the Centers for Disease Control, said the following on February 27:

The risk to the American public is low. We have an aggressive containment strategy that really has worked up to this time, 15 cases in the United States. Until the last case that we just had in Sacramento we hadn’t had a new case in two weeks.”

Then there is the World Health Organization, which downplayed the virus in January and February, and giving a convincing impression that it servied as a mouthpiece for the CCP.

In fact, the American people were badly harmed by wrongheaded decisions made by the “experts” at the CDC in January and February, when the agency insisted that testing could not proceed until a test of their own design was ready. Then, the first version it approved was discovered to be flawed! This set the testing effort back by well over a month, a delay that proved critical. It’s no exaggeration to say this bureaucratic overreach denied the whole country, and Trump, the information needed to properly assess the spread of the virus.

But let’s think about actual policy once it became clear that the virus was getting to be a serious matter in parts of the U.S. Here’s another excerpt from my post in May:

Trump cannot be accused of ignoring expert advice through the episode. He was obviously on-board with Fauci, Dr. Deborah Birx, Dr. Robert Redfield, and other health care advisors on the ‘15 Days to Slow the Spread‘ guidelines issued on March 16. His messaging wavered during those 15 days, expressing a desire to fully reopen the nation by Easter, which Vice President Michael Pence later described as “aspirational”. Before the end of March, however, Trump went along with a 30-day extension of the guidelines. Finally, by mid-April, the White House released guidelines for ‘Opening Up America Again‘, which was a collaboration between Trump’s health care experts and the economic team. Trump agreed that the timeline for reopening should be governed by ‘the data’.” 

We should give Trump credit for shutting down flights into the U.S. from China, where the virus originated, late in January. That was an undeniably prescient move. Let’s also not forget that the original intent of the “15 Days” was to prevent hospitals and other medical resources from being overwhelmed. Today, the data show a strong seasonal tendency to the spread of the virus, but medical resources are not close to being overwhelmed, our ability to treat the virus has vastly improved, and its consequences are much less deadly than in the spring. That’s good progress, whatever the President’s detractors may say.

More than anything else, what Trump’s COVID critics fail to understand is that the executive leader of a republic is not possessed of monarchical powers. And in the U.S., the Constitution provides an additional layer of sovereignty for member states of the Union, a manifestation of the federalist principals without which the Union would not have been possible. The 15-day guidelines produced by the White House, and the guidelines for reopening, were consistent with this framework. The states have adapted their own policies to actual conditions and, if their leaders haven’t worn out their goodwill among voters, internal political realities. Those adaptations were often bad from my perspective, or even tyrannical, but sometimes good. That is exactly how our federalist system was designed to work.

Joe’s “Boom”: Mendacity or Memory Loss?

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Joe Biden has claimed that he and Barack Obama had left Donald Trump with a “booming” economy to start his term in office. Of course, if he had anything to do with economic performance during the Obama Administration, it may have been his oversight of the mismanaged and ineffective “shovel-ready” stimulus program of 2009, For his sake, one might hope (and suspect) his oversight was nominal. In any case, his characterization of the Obama economy is not really accurate, as this editorial at Issues and Insights demonstrates. I could argue with a few of their points, but the thrust of it is correct. The economy weakened in 2015 and 2016, and expectations were for continued slow growth or possibly a recession in 2017 or after. At that point, many economists thought the aging expansion might be on its last legs. But economic growth exceeded expectations after Trump took office. As for job growth, economists predicted relatively sluggish growth in 2017-2019, but actual job growth exceeded those projections by more than three times.

Finally, Biden’s assertion that “Trump caused the recession” was laughable, especially when the punchline is his willingness to “shut down the economy“! He insists “I would listen to the scientists”, presumably the same knuckleheads who don’t understand the public health tradeoffs between the pandemic itself and lockdown risks (and who don’t understand the Constitution). Biden might not understand that the President lacks constitutional powers to demand a nationwide shutdown. Trump was quite sensibly persuaded to leave non-pharmaceutical interventions in the hands of the private sector as well as state and local governments, with guidance from federal health authorities. That some state and local leaders instituted draconian policies, which were largely ineffective and often damaging. was and is a terrible misfortune. The more sensible approach is to  protect the most vulnerable and allow others to gauge their own risks, as we always have in earlier pandemics.

Barrett v. Obamacare

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Obamacare’s survival has emerged as the democrats’ big talking point against Amy Coney Barrett’s nomination to the Supreme Court, especially since a case challenging the health care law is scheduled be heard by the Court on November 10th. I’m certainly no a fan of the Affordable Care Act (ACA, or Obamacare). It is anticompetitive and it is a regulatory and pricing nightmare. However, the chances it will be struck down in its entirety are slim to none, whether Barrett is confirmed or not.

The Case Before the Court

The case at hand is California v. Texas, in which 21 democrat state attorneys general appealed a decision by a lower court that the ACA’s individual mandate is unconstitutional. The case against the ACA was originally brought by 20 republican state attorneys general based on Congress’ earlier repeal of the “tax” levied on violations of the law’s individual mandate. With that repeal, the mandate itself became unenforceable because it effectively disqualified the mandate as a matter of congressional intent. More background on the case can be found here.

The reinterpretation of the ACA penalty as a tax was the key turning point in an earlier case, National Federation of Independent Business v. Sebelius, in which Chief Justice John Roberts’ deciding vote upheld the ACA’s individual mandate under Congress’ taxing power. Now, in California v. Texas, a District Court ruled for the plaintiffs that the entire ACA is unconstitutional, not just the individual mandate. Subsequently, however, an Appeals Court ruled only against the mandate. Thus, the case before the Supreme Court is primarily about the standing of the states that originally brought the suit and the status of the individual mandate. The case is unlikely to involve other components of the law, such as the list of minimum essential benefits and protections on pre-existing conditions.

Severability

The Appeals Court decision can be upheld by the Supreme Court without striking down the whole of the ACA. This rests on the doctrine of severability, which holds that a law’s unconstitutional provision(s) do not invalidate other provisions within the same law. The Court has often applied this doctrine in deference to the intent of legislation, to the extent that other parts of a law can stand on their own. Jonathan Adler, who has filed a brief with the Court in California v. Texas, writes that the individual mandate is clearly severable from the rest of the ACA:

When part of a statute becomes unenforceable, a court usually must ask whether Congress would have preferred what remains of the statute to no statute at all. Typically, it is a court that renders a provision unenforceable, and the court must hypothesize what Congress would have intended in that scenario. Courts also will sometimes assess whether the statute functions without the provision— a proxy for legislative intent.

But this case is unusual. It presents no need for any of these difficult inquiries because Congress itself—not a court—eliminated enforcement of the provision in question and left the rest of the statute standing. So congressional intent is clear; it is embodied in the text and substance of the statutory amendment itself.

Furthermore, contrary to the claims of the republican plaintiffs in the case, the ACA does not contain an inseverability clause. The Court is likely to invoke the severability doctrine, so Amy Coney Barrett’s (ACB’s) confirmation prior to the hearing would not lead to a ruling against the whole of Obamacare. The Court seems to like small steps.

What She Said

ACB has written that the Court’s original interpretation of the penalty for violating the mandate as a tax was flawed. Again, the argument was attributable to the opinion written by Chief Justice Roberts in NFIB v. Sebelius. The ACA never used the term “tax” in the context of an individual’s failure to comply with the mandate. Instead, it referred to the “penalty” multiple times. In the law’s original form, the clear legislative intent was to penalize certain behavior: failing to buy a product. ACB wrote the following of Roberts’ opinion in 2017:

He construed the penalty imposed on those without health insurance as a tax, which permitted him to sustain the statute as a valid exercise of the taxing power. Had he treated the payment as the statute did—as a penalty—he would have had to invalidate the statute as lying beyond Congress’s commerce power. … One would be hard-pressed to find many originalists who think that a court should find a way to uphold a statute when determinate text points in the opposite direction.

Recusal

Josh Blackman says ACB need not recuse herself from hearing California v. Texas. First, the case is not a reconsideration of NFIB because the “tax” no longer exists; second, the current challenge to the mandate does not hinge on the plausibility of Roberts’ opinion in that case; and finally, recusals at the Supreme Court typically require a higher bar than lower courts in order to avoid a short-handed Court. Jonathon Adler discusses a recent moot court on California v. Texas in which ACB participated, and he seems to agree that recusal is unnecessary.

So ACB said the penalty was a penalty, not a tax, but the penalty no longer exists in any case. Congress left the individual mandate with no enforcement mechanism, a clear signal of its intent to set the mandate aside. The severability of the mandate from the ACA, and the “tax vs. penalty” focus of ACB’s remarks on the NFIB decision, offer little rationale for the view that ACB would argue to overturn the entirety of the ACA in California vs. Texas.

Essential Benefits

ACB has had another beef with the ACA, however, which has to do with certain items on the list of minimum essential benefits mandated by the law. The purpose of the list was much like that of the individual mandate: to force payment by all parties to cross-subsidize those who desired certain benefits. The list included contraceptives, abortifacients, and sterilization, and the requirements applied to individual policies as well as plans offered by private organizations, including those having moral and religious objections to the use of these products or services. Those individuals would be forced to offer and pay for the objectionable benefits just the same. In 2012, ACB signed a statement that called the requirement an “assault on religious liberty and the rights of conscience“. That argument seems even more compelling with today’s availability of cheap contraceptives over-the-counter. But the point raised by ACB is now irrelevant: this summer, the Court ruled against the requirement on contraceptives, but the Court didn’t say the whole list is unconstitutional. That aside, the list of essential benefits impedes the objective of offering low-cost coverage to the broadest swath of the population, and it is one of the reasons for the astonishingly high deductibles on Obamacare health policies.

Conclusion

The ACA has many flaws and has prompted a large number of legal challenges. It will continue to do so. Seven of those cases have already risen to the level of the Supreme Court, and there could be more. The ACA is a terrible law: it has driven up the cost of health insurance coverage through community rating and benefits mandates. It has driven up the cost of care through excessive regulatory measures and incentives for providers to consolidate. But while I am no fan of the law, the appointment of Amy Coney Barrett to the Court does not presage its complete overturn. That will almost certainly have to wait for legislation on a complete replacement for Obamacare, which doesn’t seem imminent.

You think he was pissed off?

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Many were put-off and even offended by President Trump’s aggressive approach to the first debate with Joe Biden on Tuesday. I’m not bothered except that he didn’t give Biden enough time to lose his way. This debate was tame compared to the standards set at the Lincoln-Douglas debates, which were full of insults, crude language, and racial epithets.

It was Joe Biden who began the unending series of interruptions on Tuesday. Biden interrupted Trump three times at that point, after which the moderator, Chris Wallace, declared “open discussion”. Go back and watch! So if you care, Biden started it. And Biden became rather abusive in his language as the debate wore on.

As to Trump’s pugilistic style, here is Sean Trende:

… debates are usually staid affairs, pitched to politically knowledgeable elites who like to evaluate things on the merits. Trump’s debates are pitched to someone completely different. His behavior toward Clinton seemed bizarre and juvenile, and made for classic “SNL” fodder. It also apparently worked reasonably well; the townhall-style debate was one of his best received performances. So the interrupting and refusal to answer questions was off-putting for me, but I recognize that I’m not the target audience.

Okay, fair enough, but Trump’s debate performance was more visceral than calculated. In fact, even members of his debate team were surprised: Chris Christie said it was “too hot”. Trump’s guns blaze because he’s pissed off, and he should be! Just to regard the countenance of the man across the stage was probably enough to infuriate Trump: Biden helped instigate the fraudulent investigation of General Michael Flynn (James Comey’s denial notwithstanding), Trump’s first national security advisor. Biden has repeatedly stooped to the same unfounded accusations of racism against the President that have been made by Democrats since Trump announced his first candidacy in 2015. This despite Biden’s own racial gaffes and affiliations with racists over the years. Biden was involved in a Ukrainian shakedown, admitting that he threatened the country’s President to have U.S. aid withheld if a Ukrainian prosecutor was not fired. That prosecutor was investigating the energy company Burisma, which just so happened to be paying a handsome retainer to Biden’s son, Hunter. Yet Trump was falsely accused of a similar transgression! Talk about the self-projections of Democrats! Trump has every reason to be pissed off, and to let it flow.

Biden represents the same Democrat party that has conspired to have Trump thrown out of office since before he was inaugurated. The same party has spread disinformation about collusion with Russians since before the 2016 election. The same party voted to impeach Trump in the House of Representatives on that fallacious basis. The same party promotes the idiotic suggestion that Trump “killed 200,000 people” with coronavirus; blames Trump for the economic malaise due to coronavirus lockdowns, then insists the economy must be shut down to end the pandemic; refuses to cooperate in passing a targeted coronavirus aid package; supports the violence perpetrated by Antifa and Black Lives Matter (“mostly peaceful protests”), with prominent democrats contributing to the payment of bail for arrested rioters; calls Trump a dictator for offering to help state and local leaders end the violent civil disorder; refuses to call-out the racism promoted by Antifa and BLM; promotes the Marxism and racism of critical race theory; and attacks his latest Supreme Court nominee on religious grounds. The Democrats also threaten to instigate one-party rule by packing the Supreme Court, ending the legislative filibuster, and admitting new states to the union and dividing old ones in order to create a permanent Democrat majority in Congress (but the Constitution prohibits DC from statehood). A one-party nation! And, of course, Democrats have pushed for universal mail-in ballots, with all the bedlam and challenges that is likely to bring to the electoral process.

Then we have the debate moderator, Chris Wallace. There was little doubt about Wallace’s sympathies. He interrupted Trump much more frequently than he interrupted Biden. He asked Trump whether he denounces white supremacist organizations, and Trump immediately said, “Of course.” Trump has denounced them, but Wallace thought it necessary to relitigate the matter. Wallace’s follow-up regarding the “Proud Boys” was misplaced, as the group might be nationalist, but it is not a white supremacist organization (their president is Afro-Cuban). Meanwhile, Wallace failed to ask Biden to denounce Antifa and BLM. Wallace failed to ask Biden about his son’s dealings with the mayor of Moscow and his Chinese clients. He also let Biden off the hook quite readily when he refused to give his opinion on court packing and eliminating the filibuster. Biden refused to answer… Wallace was like, “okay”!

If anything, my biggest frustration with Trump on Tuesday was his typical sloppy articulation of his policies and views. He seldom makes his best and most obvious supporting arguments. Whiff! Instead, what I hear often seems off-point and semi-coherent. Of course, I understand most of what he’s trying to get across, and so do many others when they’re not too busy self-projecting. So maybe Trump is a great communicator after all, despite his seeming lack of clarity.

Biden says he “is” the Democrat Party. Then he has a lot to answer for. I’m glad Trump lit into him. No reasonable person can blame Trump for being pissed off. Hey, I’m pissed off, and you should be pissed off too, because Joe Biden and the Democrat Party is ready to subjugate you!

Atheism Cannot Disqualify for Public Office

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Amy Coney Barrett makes a lousy target for personal attacks by the Left. Barrett is President Trump’s nominee for the Supreme Court vacancy following the death of Justice Ruth Bader Ginsburg. A fabricated scandal against Barrett would be much less credible than even the allegations made against Bret Kavanaugh at his confirmation hearings in 2018. So Democrats believe their best opportunity is to paint Barrett as a religious “crazy” who, if confirmed by the Senate, will allow her religious convictions to influence her opinions on the Court relative to issues such as abortion rights under Roe v. Wade.

Barrett has offered rejoinders to Senator Diane Feinstein’s comments (“The dogma lives loudly within you.“) at the hearings on Barrett’s appointment to the Federal Appeals Court in 2017. In particular, Barrett has noted that a religious test is unconstitutional as a criterion for public office, including judgeships. In fact, in another way, Barrett has demolished the claims made by leftists against the qualifications for the bench of those of deep faith. Her argument exposes the Leftist position as an absurdity.

The presumption is that someone having religious convictions has a certain set of moral principles that might be brought to bear on court decisions. We’re expected to believe that’s a danger unique to those of faith. Barrett notes that non-religious individuals, even atheists, have their own set of moral principles. By the same standard, should we not concern ourselves that an atheistic nominee might bring their moral principles to bear on court decisions? Or are we to believe those principles are somehow superior to those associated with religious convictions? That they should simply be overlooked, but not for those of religious faith? Rather, a fundamental requirement is whether a nominee understands and respects the difference between jurisprudence and legislating from the bench, a distinction that was sometimes lost on Ginsburg.

To assert that an atheist’s moral convictions are more objective than those of a religious individual is a flaw in logic and a horrific value judgement. I am not a particularly religious person, but I respect people of faith as well as the protections afforded to the free practice of religion by the First Amendment of the U.S. Constitution. It’s worth noting that those protections apply to atheists as well as religious sects. As Barrett’s position implies, to distrust the judicial judgement of a person of religious faith is as wrongheaded as to distrust the judicial judgement of a nominee devoid of religious faith.

Nominate and Confirm

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Many on the left practically cheered the passing of Antonin Scalia in 2016, a reaction I witnessed with disgust on my own social media feeds. Now, we should all mourn the death of Ruth Bader Ginsburg, but some of the same people seem almost comically furious with her for “choosing such a bad time to die”, just 46 days before the presidential election! Or, for refusing to step down during the Obama administration, when she could have been replaced with a much more youthful lefty jurist.

Of course, the Left is also furious that President Trump plans to nominate a candidate for Ginsburg’s vacancy on the Court, and that Republican leadership in the Senate plans to bring the nomination to a vote, perhaps before November 3rd.

Trump and the GOP majority are entitled to do that under the Constitution, and they should. Senator Ted Cruz explained the primary reason:

Democrats and Joe Biden have made clear they intend to challenge this election. They intend to fight the legitimacy of the election. As you you know Hillary Clinton has told Joe Biden ‘under no circumstances should you concede, you should challenge this election.’ and we cannot have election day come and go with a 4-4 court. A 4-4 court that is equally divided cannot decide anything. And I think we risk a constitutional crisis if we do not have a nine-justice Supreme Court, particularly when there is such a risk of … a contested election.” 

This presidential election might be fraught with more procedural controversy than any before. The coronavirus, or its promoters in the media and the Democrat party, has spooked many voters into the belief that going to a polling place in-person on Election Day is too dangerous. This despite the fact that distancing and masks will be required, and the time it takes to complete a ballot does not require “prolonged exposure” to anyone. So now we face the prospect of mail-in balloting on an unprecedented scale, which is an invitation to manipulation and fraud. A couple of examples:

… consider some of the suspect decisions already being made in various states that deliberately weaken ballot security. The Pennsylvania Supreme Court, for example, voted last week along party lines (the judges are elected) that county drop boxes, including unattended ones, could be used to collect votes. Gov. Tom Wolf, a Democrat, and his party supported the measure, which reached the court by lawsuits, thus avoiding GOP control of both legislative chambers. The decision obviously opens the door to potential fraud because ballots in unsecured drop boxes could be tampered with or stolen. 

New Jersey’s Democratic Gov. Phil Murphy also made some curious decisions. A Jersey friend sent me a mailer he received that was addressed only to ‘Residential Customer.’ Inside, a pamphlet from the county clerk in Bergen County said that a Murphy order ‘requires’ every county to mail a ballot to ‘every active registered voter.’ That raises the chances of thousands of unmarked ballots being stolen from the post office or front porches, practices not exactly unheard of in New Jersey.”

Already a number of lawsuits have been filed in various states over absentee ballots. There have been missed deadlines, disputes over whether certain candidates should appear on those ballots, invalidated pre-filled applications for ballots, and an incorrect mailer sent by the U.S. Postal Service to voters nationwide regarding absentee ballots. Let’s face it: for all the earlier denials by Democrats that the mail-in ballot process was not subject to gaming or fraud, neither side trusts the other. There will be many more disputes as ballots are counted before and after Election Day.

It’s reasonable to expect that a few cases might rise to the level of the U.S. Supreme Count before election tallies are final in some states, as in the Florida recount in the Bush vs. Gore election of 2000. A 4 – 4 tie on the Court would leave lower, state-court rulings in place that could decide the outcome of a federal election. That’s not how the process is intended to work. Needless to say, that’s another reason why Democrats oppose a Trump nominee prior to the election. There’s no doubt they’d push forward with their own nominee were the shoe on the other foot, however, just as Republicans opposed the confirmation of Merrick Garland in 2016.

So who’s a hypocrite? Republicans who said that they wouldn’t confirm or even conduct a confirmation process in an election year, as in 2016, certainly qualify (Lindsey Graham, among others). It must have seemed expedient to stay so at the time, but it was foolish. And Democrats who now protest after insisting in 2016 (and before) that a Supreme Court vacancy should be filled by the sitting president, even in an election year, also qualify (Chuck Schumer, Barack Obama, Hillary Clinton, and Joe Biden, among others). Here’s what some top progressive legal minds were saying in 2016: It’s a duty and obligation for the president to nominate and for the Senate to undertake a confirmation process!!

Here’s the key issue: The president has the authority to nominate Supreme Court justices any time during his term. If the Senate confirms, then a new justice is seated. If the Senate chooses not to confirm, the vacancy remains. That’s how it works. There have been 29 vacancies on the Court in election years, and in 22 of those cases the sitting president sent a nomination to the Senate. As Justice Ginsburg said in 2016:

There’s nothing in the Constitution that says the president stops being the president in his last year.”

Her purported wish on her death bed, that her replacement would be chosen by a new president, was not hypocritical. It was a wish, not a legal opinion. It was just as “political” as the contradictory statements made by the politicians, however.

Ginsburg also said it’s the Senate’s job to take up a vote, which the Republicans refused to do in 2016. That was their prerogative, however, and the decision does not bind anyone in the current circumstance.

Mitch McConnell is right:

In the last midterm election before Justice Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame-duck president’s second term. We kept our promise. Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year. By contrast, Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary. Once again, we will keep our promise. President Trump’s nominee will receive a vote on the floor of the United States Senate.”  

Democrats have promised to “pack the Court” by adding seats to the bench for new, ideologically-preferred justices if a Trump nominee is confirmed, among other threats. They should heed the caution of moderates who know how dangerous that may be. The mere threat gives Republicans reason to pack the Court themselves, when they can, which might be as soon as January. Moreover, nothing could do more to undermine confidence in the Court. RBG herself had the following to say about Court packing:

Well, if anything, it would make the court appear partisan. It would be that one side saying, ‘when we’re in power, it was only to enlarge the number of judges so we will have more people who will vote the way we want them to…’ So I am not at all in favor of that solution to what I see as a temporary situation.”

Well, of course the Court is divided along certain ideological lines, and to some extent those differences break along dimensions of legal philosophy, such as originalism vs. a “living Constitution”, or judicial activism. That’s not to say that the Court is always partisan, however. The process of nominating and confirming justices should not be as partisan as it has become in the last 25 years (see the last link). Let’s not make it worse.

Trump will nominate an able jurist. Senators should meet and independently assess that individual’s legal qualifications and temperament. My expectation is they will vote to confirm, and I hope that vote takes place without rancor.

Note: Thanks to the Washington Free Beacon for the wonderful meme at the top of this post.