Tag Archives: Donald Trump

COVID, Trump, and Tyrants

11 Sunday Oct 2020

Posted by in Pandemic, Public Health, Trump Administration

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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?

06 Tuesday Oct 2020

Posted by in economic growth, Executive Authority

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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

04 Sunday Oct 2020

Posted by in Health Insurance, 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?

01 Thursday Oct 2020

Posted by in Politics

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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

26 Saturday Sep 2020

Posted by in Supreme Court

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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

23 Wednesday Sep 2020

Posted by in Supreme Court

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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.

Trump’s Payroll Tax Ploy

15 Tuesday Sep 2020

Posted by in Fiscal policy, Taxes

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President Trump’s memorandum to Treasury Secretary Steve Mnuchin on payroll tax deferral is bad economic policy, but it might ultimately prove useful as a political weapon. The memo, released in August, instructed the Treasury to allow employers to suspend withholding of the employee’s share of FICA taxes (6.2%) until the end of the year, but it does not forgive the taxes. Only Congress (with the President’s signature) can eliminate the tax obligation. There are several reasons I don’t like it:

  1. Assuming the tax obligation is forgiven, it would provide some relief to those who are already employed (and earning less than $4,000 every two weeks), but not to the unemployed. Thus, as relief from coronavirus-induced job losses, this doesn’t cut it.
  2. It does not reduce the cost of hiring, as would a permanent reduction in the employer’s share, so it does not improve hiring incentives.
  3. The deferral creates uncertainty: will the tax bill be forgiven? If not, will the employee be on the hook? Or the employer? What if an employee leaves the company having received a deferral?
  4. The measure will not be an effective stimulus to spending. It is not an addition to workers’ permanent income since it is a temporary “holiday”. Income perceived as temporary adds little to consumer spending. And it doesn’t constitute a temporary tax break unless employers participate (see below), and even then only if Trump is re-elected and if Congress agrees to forgive the tax.
  5. Trump suggested that the tax will be forgiven if he is re-elected. It’s a rather unsavory proposition: create an immediate tax benefit paired with a matching future obligation with forgiveness contingent upon re-election!
  6. Long-term funding of Social Security is already problematic. Adding a payroll tax holiday on top of that, assuming the taxes are forgiven, only aggravates the situation. Yes, I can imagine various “long-game” reform proposals that might attempt to leverage such a break, but I consider that highly unlikely.

It’s no surprise that a number of large employers are not participating in the tax deferral. such as CVS, JP Morgan Chase, UPS, Home Depot, and Wells Fargo.

Small employers have an even bigger problem to the extent that they lack sophisticated accounting systems to handle such deferrals. Here’s Warren Meyers’ take on the payroll tax suspension:

“We have 400 employees today, but since we are a summer seasonal business we will have fewer than 100 in January. If there is a catch-up repayment in January (meaning Congress chooses not to forgive the taxes altogether), most of my employees who would need to repay the tax will be gone. Do you think the government is just going to say, ‘oh well, I guess we lost that money’? Hah! You don’t know how the government works with tax liens. My guess is that for every employee no longer on the payroll for whom back employment taxes need to be collected, the government is going to say our company is responsible for those payments instead. We could be out hundreds of thousands of extra dollars. President Biden will just say, ‘well I guess you should not have participated in a Trump program.’

So this is the vise we are in: Either we participate in the program, and risk paying a fortune in extra taxes at some future date, or we don’t participate, and have every employee screaming at us for deducting payroll taxes when President Trump told them they did not have to pay it anymore. And what happens if Congress does come along later and forgive the taxes, what kind of jerk am I for not allowing my employees to benefit from the tax break?

A payroll tax rollback was considered for the Republican stimulus packages that failed in Congress this summer, but that provision was said to be “negotiable”. In any case, nothing passed. Surely Trump’s economic advisors know that the economics of the payroll tax memo are lousy, even if Trump doesn’t get it.

I can’t decide whether the whole thing is Machiavellian or just a goof. Perhaps Trump is so eager to be seen as a tax cutter that he is willing to gloss over the distinction between a tax cut and a deferral. If the taxes owed are not forgiven, it won’t be on his watch. And Trump might believe he can weaponize the payroll tax deferral against obstinate Democrats in Congress as well as Joe Biden. Maybe he can.

COVID Hysteria and School Reform

24 Monday Aug 2020

Posted by in Education, Pandemic, School Choice

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Many haven’t quite gathered it in, but our public education system is an ongoing disaster for many low-income and minority students and families. The pandemic, however, is creating a major upheaval in K-12 education that might well benefit those students in the end. But before I get into that, a quick word about National Public Radio (NPR): it doesn’t make its political leanings a secret, which is why it should not be supported by taxpayers. Yes, like many other mainstream media outlets, NPR serves as a political front organization for Democrats (and worse).

Last week, NPR did a segment on “learning pods”, which I’d describe as private adaptations to the failure of many public schools (and teachers’ unions) to do their job during the pandemic. Glenn Reynolds passed along an interpretation of that NPR segment from a friend on Facebook, which I quote in its entirety below (bold emphasis mine). It was either this segment or else NPR has taken it down … but that link more or less matches the description. The post is somewhat satiric, but it captures much of what was actually said:

“Hilarious NPR, last week’s edition. They had an hour-long segment on learning pods. Participants: Host (white woman), Black Woman Activist, Asian Woman Parent, School-System Man.

Slightly editorialized (but true!) recollections below.

Host: In wealthy areas, parents get together and organize learning pods. What do we make of it?

School-System Man: Inequitable! Inappropriate! Bad! We do not support it!

Asian Woman Parent: Equity requires that we form these pods to educate our own children! Otherwise, only the rich can get education! Rich bad!

Host: Rich bad.

School-System Man: Rich horrible! They withdraw kids from public schools during the pandemic, so schools have less money!

Asian Woman Parent: We have no choice. You are not teaching.

Host: But what are you doing for the equity?

Asian Woman Parent: Why are the parents supposed to be doing something for the equity? That’s why we pay taxes, so professionals do something!

School-System Man: We cannot fix equity if you are clandestinely educating your own children, but not everyone else’s children!

Asian Woman Parent: The proper solution would have been to end the pandemic. But Trump did not end the pandemic. So, we must do learning pods. As soon as the pandemic is over, we’ll get back to normal, and everyone will catch up.

Everyone [with great relief]: Trump bad. Bad.

Black Woman Activist: No, wait a minute. This sounds as though in a regular school year, black children get good education. And they are getting terrible education! Unacceptable!

Host: Bad Trump!

Black Woman Activist: Foggeraboutit! It’s not Trump! It’s always been terrible! Black children are dumped into horrible public schools, where nobody is teaching them! So, my organization is now helping organize these learning pods for minority kids everywhere.

School-System Man [cautiously]: This is only helping Trump…

Black Woman Activist: Forget Trump! Don’t tell me black kids get no education because things are not normal now. When things were normal, their education was just as bad!

School-System Man: Whut??? How dare you! Our public schools are the best thing that ever happened to black children.

Asian Woman Parent: I’ll second that. Public schools in my neighborhood are just svelte.

Black Woman Activist: That’s the point! You live in a rich suburb, and your kids get a great public school! Black kids don’t!

Asian Woman Parent: If Trump managed the pandemic properly, we would not be having this conversation.

Host: Bad Trump!

Everyone: Bad Trump!

The end.”

Ah yes, so we’re back to blaming Donald Trump for following the advice of his medical experts, most prominently Dr. Anthony Fauci. And, while we’re at it, let’s blame Mr. Trump for following federalist principles by deferring to state and local governments to deal flexibly with the varying regional conditions of the pandemic, rather than ruling by federal executive edict. Of course, some of those state and local officials botched it, such as Andrew Cuomo. That’s tragic, but had Trump followed a more prescriptive tack, the howling from the Left would have been even more deafening.

We know that children are at little risk from the coronavirus. Nor do they seem to transmit the virus like older individuals, but teachers unions are adamant that the risks their members face at school would far exceed those shouldered by other “essential” workers. And the unions, not shy about partisanship even while representing public employees, want nothing more than to see Trump lose the election. So the unions and the schools districts they seem to control hold parents hostage. They collect their tax revenue and salaries while delivering virtual service at lower standards than usual, or no service at all. (Of course, public schools in some parts of the country are in session.) 

The teachers’ unions and public schools might get their comeuppance. The situation represents a tremendous opportunity for private schools, home schooling, and innovative schooling paradigms. Many private schools are holding classes in-person, more parents are homeschooling, and alternative arrangements like learning pods have formed, many of which are quite cost-effective.

Pressure is building to allow education dollars to follow individual students, not simply to flow to specific government schools. You can buy a decent K-12 education for $12,000 a year or so, and it’s likely to be a better education than you’ll get in many public schools. (One of the panelists on the NPR segment smugly called this an “insidious temptation”). At long last, parents would be allowed real choice in educating their children, and at long last schools would be incentivized to compete for those students. That might be one of the best things to come out of the pandemic.

TikTok Tax: The Heavy Wants a Cut

05 Wednesday Aug 2020

Posted by in Industrial Policy, Regulation, Trump Administration

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I have a certain ambivalence toward Donald Trump, and I could go on and on about why it’s so “complicated” for me. One thing for which I’ve credited the Trump Administration is its effort to “deconstruct the administrative state”, as Steve Bannon so aptly put it shortly after the 2016 election. Of course, the progress thus far hasn’t always lived up to my hopes, but the effort to deregulate continues. And after all, the regulatory state is deeply entrenched and difficult to uproot.

Then my eyes glazed over as Trump floated an idea so bad, an intervention so awful, that I can hardly gather it in! It has to do with TikTok, the Chinese video sharing service that has gained popularity worldwide. Crazy as this might sound, it’s not so much Trump’s threat to shut down TikTok’s U.S. operations. Like most libertarians, I’d find that appalling in and of itself, except for the legitimate data security issues at stake. The company’s ties to the Chinese Communist Party (CCP) are a national security concern and an ethical blot on the company, given the CCP’s brutal treatment of Muslim Uighurs, its roughshod treatment of Hong Kong, and its threats to Taiwan. In any case, at least Trump said he’s amenable to a sale of the company’s U.S. operations to a domestic firm. Several large tech firms have expressed strong interest, including Microsoft. So, while any government imposed shutdown or forced sale makes me squirm, it’s not my main issue here.

What really stunned me was to hear Trump say the U.S. Treasury must get a cut of the deal! This is “Hall-of-Fame” statism. Where in the hell does the U.S. government get a legitimate financial claim to the value of any private business that changes hands? Well, Trump seems to think the federal government is adding value as the heavy:

“But if you buy [TicTok], the United States, which is making it possible to buy, because without us they can’t do anything, should be compensated.”

Yes, the buyer would be the beneficiary of a shakedown, and the demand is another poke in the eye to the Chinese. Of course, it might well threaten the transaction, and I’m not even sure it’s in Trump’s interest politically. But that’s not even the worst of it: as Warren Meyer explains, it would be hard to think of a better way to weaponize financial regulation than having the Treasury at the bargaining table in private negotiations for corporate control:

“Already there are too many regulatory hurdles to doing about anything, and Trump wants agencies to use regulatory approvals to hold up corporations for payments. And you can be sure this is a precedent the Democrats will be only too happy to latch onto — want a pipeline built, where’s our vig? Who wants [this to be] the first Trump decision AOC comes out in support of? The Republican Party sure has come a long way in my lifetime.”

The Left would certainly love to exercise this kind of coercion as a revenue source, as a cudgel of industrial policy to wield against disfavored firms and industries, and as a way to favor cronies. It’s a ready extension of Barack Obama’s deranged “You-didn’t-build-that” theme.

Is this one of trade advisor Peter Navarro‘s brainstorms? I was relieved to see Trump economic advisor Larry Kudlow cast some doubt on whether the government would follow through on Trump’s idea:

“‘I don’t know if that’s a key stipulation. …. A lot of options here,’ Kudlow told ‘Varney & Co.’ on Tuesday. ‘Not sure it’s a specific concept that will be followed through.’“

I think Trump would really like to kill TikTok. Maybe his grudge is driven in part by the presumptive role that TikTok played in his under-attended Tulsa rally. But there are domestic competitors to TikTok, so consumers will have alternatives. The most popular of those seems to be another Chinese app called Likee. In any case, downloads of other video sharing apps have spiked over the past few weeks. If Trump’s real aim is simply to shut down TikTok in the U.S., I’d almost rather see him do that than start making a practice of horse trading with cronies over shares of corporate booty.

COVID Politics and Collateral Damage

26 Sunday Jul 2020

Posted by in Pandemic, Public Health

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Policymakers, public health experts, and the media responded to the coronavirus in ways that have often undermined public health and magnified the deadly consequences of the pandemic. Below I offer several examples of perverse politics and policy prescriptions, and a few really bad decisions by certain elected officials. Some of the collateral damage was intentional and motivated by an intent to inflict political damage on Donald Trump, and people of good faith should find that grotesque no matter their views on Trump’s presidency.

Politicized Treatment

The smug dismissal of hydroxychloraquine as Trumpian foolishness was a crime against humanity. We now know HCQ works as an early treatment and as a prophylactic against infection. It’s has been partly credited with stanching “hot spots” in India as well as contributing strongly to control of the contagion in Switzerland and in a number of other countries. According to epidemiologist Harvey Risch of the Yale School of Public Health, HCQ could save 75,000 to 100,000 lives if the drug is widely used. This is from Dr. Risch’s OpEd in Newsweek:

“On May 27, I published an article in the American Journal of Epidemiology (AJE) entitled, ‘Early Outpatient Treatment of Symptomatic, High-Risk COVID-19 Patients that Should be Ramped-Up Immediately as Key to the Pandemic Crisis.’ That article, published in the world’s leading epidemiology journal, analyzed five studies, demonstrating clear-cut and significant benefits to treated patients, plus other very large studies that showed the medication safety. …

Since [then], seven more studies have demonstrated similar benefit. In a lengthy follow-up letter, also published by AJE, I discuss these seven studies and renew my call for the immediate early use of hydroxychloroquine in high-risk patients.”

Risch is careful to couch his statements in forward-looking terms, but this also implies that tens of thousands of lives could have been saved, or patients might have recovered more readily and without lasting harm, had use of the drug not been restricted. The FDA revoked its Emergency Use Authorization for HCQ on June 15th, alleging that it is not safe and has little if any benefit. An important rationale cited in the FDA’s memo was an NIH study of late-stage C19 patients that found no benefit and potential risks to HCQ, but this is of questionable relevance because the benefit appears to be in early-stage treatment or prophylaxis. Poor research design also goes for this study and this study, while this study shared in some shortcomings (e.g., and no use of and/or controls for zinc) and a lack of statistical power. Left-wing outlets like Politico seemed almost gleeful, and blissfully ignorant, in calling those studies “nails in the coffin” for HCQ. Now, I ask: putting the outcomes of the research aside, was it really appropriate to root against a potential treatment for a serious disease, especially back in March and April when there were few treatment options, but even now?

Then we have the state governors who restricted the use of HCQ for treating C19, such as Gretchen Whitmer (MI) and Steve Sisolak (NV). Andrew Cuomo (NY) decided that HCQ could be dispensed only for hospital use, exactly the wrong approach for early stage treatment. And all of this resistance was a reaction to Donald Trump’s optimism about the promise of HCQ. Yes, there was alarm that lupus patients would be left without adequate supplies, but the medication is a very cheap, easy to produce drug, so that was never a real danger. Too much of the media and politicians have been complicit in denying a viable treatment to many thousands of C19 victims. If you were one of the snarky idiots putting it down on social media, you are either complicit or simply a poster child for banal evil.

Seeding the Nursing Homes

The governors of several states issued executive orders to force nursing homes to accept C19 patients, which was against CMS guidance issued in mid-March. The governors were Andrew Cuomo (NY), Gretchen Whitmer (MI), Gavin Newsom (CA), Tom Wolf (PA), and Phil Murphy (PA). This was a case of stupidity more than anything else. These institutions are home to the segment of the population most vulnerable to the virus, and they have accounted for about 40% of all C19 deaths. Nursing homes were ill-prepared to handle these patients, and the governors foolishly and callously ordered them to house patients who required a greater level of care and who represented an extreme hazard to other residents and staff.

Party & Protest On

Then of course we had the mayor of New York City, Bill De Blasio, who urged New Yorkers to get out on the town in early March. That was matched in its stupidity by the array of politicians and health experts who decided, having spent months proselytizing the need to “stay home”, that it was in their best interests to endorse participation in street protests that were often too crowded to maintain effective social distance. That’s not a condemnation of those who sought to protest peacefully against police brutality, but it was not a good or consistent recommendation in the domain of public health. Thankfully, the protests were outside!

Testing, Our Way Or the Highway

The FDA and CDC were guilty of regulatory overreach in preventing early testing for C19, and were responsible for many lives lost early in the pandemic. By the time the approved CDC tests revealed that the virus was ramping up drastically in March, the country was already behind in getting a handle on the spread of the virus, quarantining the infected, and tracing their contacts. There is no question that this cost lives.

Masks… Maybe, But Our Way Or the Highway

U.S. public health authorities were guilty of confused messaging on the efficacy of masks early in the pandemic. As Joel Zinberg notes in City Journal, Anthony Fauci admitted that his own minimization of the effectiveness of masks was motivated by a desire to prevent a shortage of PPE for health care workers:

“In discouraging mask use, Fauci—for decades, the nation’s foremost expert on viral infectious diseases—was not acting as a neutral interpreter of settled science but as a policymaker, concerned with maximizing the utility of the limited supply of a critical item. An economist could have told him that there was no need to misinform the public. Letting market mechanisms work and relaxing counterproductive regulations would ease shortages. Masks for health-care workers would be available if we were willing to pay higher prices; those higher prices, in turn, would elicit more mask production.”

Indeed, regulators made acquisition of adequate supplies of PPE more difficult than necessary via compliance requirements, “price gouging” rules, and import controls.

Bans on Elective Surgery

Another series of unnecessary deaths was caused by various bans on elective surgeries across the U.S. (also see here), and we’re now in danger of repeating that mistake. These bans were thought to be helpful in preserving hospital capacity, but hospitals were significantly underutilized for much of the pandemic. Add to that the fright inspired by official reaction to C19, which keeps emergency rooms empty, and you have a universe of diverse public health problems to grapple with. As I said on this blog a couple of months ago:

“… months of undiagnosed cardiac and stroke symptoms; no cancer screenings, putting patients months behind on the survival curve; deferred procedures of all kinds; run-of-the-mill infections gone untreated; palsy and other neurological symptoms anxiously discounted by victims at home; a hold on treatments for all sorts of other progressive diseases; and patients ordinarily requiring hospitalization sent home. And to start back up, new health problems must compete with all that deferred care. Do you dare tally the death and other worsened outcomes? Both are no doubt significant.”

Lockdowns

The lockdowns were unnecessary and ineffectual in their ability to control the spread of the virus. A study of 50 countries published by The Lancet last week found the following:

“Increasing COVID-19 caseloads were associated with countries with higher obesity … median population age … and longer time to border closures from the first reported case…. Increased mortality per million was significantly associated with higher obesity prevalence … and per capita gross domestic product (GDP) …. Reduced income dispersion reduced mortality … and the number of critical cases …. Rapid border closures, full lockdowns, and wide-spread testing were not associated with COVID-19 mortality per million people.”

That should have been obvious for a virus that holds little danger for prime working-age cohorts who are most impacted by economic lockdowns.

Like the moratoria on elective surgeries, lockdowns did more harm than good. Livelihoods disappeared, business were ruined, savings were destroyed, dreams were shattered, isolation set in, and it continues today. These kinds of problems are strongly associated with health troubles, family dysfunction, drug and alcohol abuse, and even suicide. It’s ironic that those charged with advising on matters pertaining to public health should focus exclusively on a single risk, recommending solutions that carry great risk themselves without a second thought. After all, the protocol in reviewing new treatments sets the first hurdle as patient safety, but apparently that didn’t apply in the case of shutdowns.

Even as efforts were made to reopen, faulty epidemiological models were used to predict calamitous outcomes. While case counts have risen in many states in the U.S. in June and July, deaths remain far below model predictions and far below deaths recorded during the spring in the northeast.

One last note: I almost titled this post “Attack of the Killer Morons”, but as a concession to what is surely a vain hope, I decided not to alienate certain readers right from the start.