Russell Roberts's Blog, page 148

Reich Is Wildly Wrong

(Don Boudreaux)

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Here’s a note to a correspondent:

Mr. H__:

Because when you sent to me the following tweet by Robert Reich you provided no commentary, I can’t tell if you approve or disapprove of its contents, which are in full:

Perhaps there’s something wrong with a system that allows a 35-year-old, unelected, Trump-nominated judge — whom the American Bar Association deemed unqualified — to strike down the travel mask mandate for the entire country?

Yet sensing that you find Reich’s tweet to be a brilliantly damning indictment of U.S. District Court Judge Kathyrn Kimball Mizelle’s ruling against the CDC’s mask mandate, I feel obliged to explain why I think Reich’s tweet is, to put it mildly, moronic.

First, there is no legally specified minimum age for serving on the federal bench. Joseph Story – no slouch as a jurist – was appointed to the U.S. Supreme Court at the age of 32.

Second, like him or not, Donald Trump was president from 2017 to 2021, and among any president’s duties is to nominate federal-court judges.

Third, Judge Mizelle wasn’t put on the court by Trump unilaterally; she was approved by the Senate.

Fourth, all federal-court judges are unelected.

Fifth, Anthony Fauci, Rochelle Walensky, and other public-health administrators are also unelected.

Sixth, while the ABA did indeed deem Judge Mizelle to be unqualified, it did so because she spent little time in the private practice of law. If this criterion suffices to render someone unfit for high government office, Anthony Fauci is even less qualified for his position than is Judge Mizelle for hers, given that Fauci spent no time in the private practice of medicine. Upon completion of his residency in 1968, he took a job with the National Institutes of Health. He has ever since been employed by the government.

Seventh, because the CDC is a federal-government agency, its diktats generally cover the entire country – a fact that should be doubly obvious in the case of diktats affecting interstate commercial air travel. Judge Mizelle could hardly have ruled against the mask mandate for only a subsection of the country.

Eighth, Reich skates alarmingly close to implicitly endorsing a totalitarian proposition that Fauci recently endorsed explicitly – namely, that government-employed public-health bureaucrats are above the law. About Judge Mizelle’s ruling, Fauci declared: “We are concerned about that – about courts getting involved in things that are unequivocally public health decisions. I mean, this is a CDC issue; it should not be a court issue.” To propose that any government action be immune to judicial oversight – that is, immune to oversight by the formal guardians of the law – is to propose that the officials who perform that action are above the law. As Reason’s Eric Boehm wrote in reaction to this authoritarian outburst by Fauci, “This is either a complete misunderstanding of the American system’s basic functions or an expression of disdain toward the rule of law.”

Sincerely,
Donald J. Boudreaux
Professor of Economics
and
Martha and Nelson Getchell Chair for the Study of Free Market Capitalism at the Mercatus Center
George Mason University
Fairfax, VA 22030

Some Non-Covid Links

(Don Boudreaux)

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George Will is rightly disgusted by Biden’s pandering to teachers’ (so called) unions – pandering that directly harms schoolchildren. A slice:

Charter schools are tuition-free public schools authorized to exercise wider discretion in educational practices than most public schools that are tightly enveloped in union rules. Although charters do not divert public funds from public education, teachers unions generally oppose them because charters expand parents’ choices, thereby infusing into public education something teachers unions dread: competition.

Last month, President Biden’s Education Department released 13 pages of pettifogging rules patently written to discourage and impede charter schools from accessing a $440 million federal program of support for charters.

Juliette Sellgren talks with the great UVA economist and teacher Ken Elzinga.

My intrepid Mercatus Center colleague Veronique de Rugy ponders Macron and Le Pen. A slice:

In 2020, COVID-19 gave Macron another excuse to re-up the state of emergency. As a result, the French endured curfews for months on end, restrictions on going more than three miles from home without filling out a form, indoor and outdoor mask mandates, vaccine mandates and an explicit commitment to make the lives of the unvaccinated “miserable.” Some of these measures were enforced by French police and punishing fines.

Meanwhile, the state consumes 62 percent of France’s GDP, public hospitals are in shambles with fewer beds and workers than before COVID-19, and—as the French like to say—”everything that is not forbidden is mandated.” This record explains why Macron’s having a difficult time convincing the electorate that voting for him is voting for liberalism.

Macron is clearly still the more liberal candidate. However, if he wins, it will not be a mandate that he is governing wisely. If he fails to change, it’s only a matter of time before France elects an authoritarian—one quite likely worse than Le Pen.

Fr. James Dominic Rooney warns against the renewed attacks on liberalism.

The first “Earth Day” was 52 years ago, notes Ron Bailey. Humanity is still here.

Also writing about “Earth Day” is Pierre Desrochers.

Wall Street Journal columnist Allysia Finley rightly praises EQT Corp. CEO Toby Rice for defending fossil fuels. A slice:

Ms. [Elizabeth] Warren and her ideological compatriots style themselves champions of the little guy and the environment. Nonsense, Mr. Rice says: Their policies mean higher prices for consumers and more carbon emissions. “If you’re blocking pipelines, you’re blocking the biggest green initiative on the planet,” he says in a Zoom interview from his office in Carnegie, Pa., a former karate studio in a walk-up above a liquor store. In the background are colorful portraits of Andrew Carnegie, Nikola Tesla, Cornelius Vanderbilt, John D. Rockefeller and J.P. Morgan.

Mr. Rice is a general on the frontlines of an energy war whose outcome matters more than ever after Russian’s invasion of Ukraine. The anti-fossil-fuel left is waging a multifront campaign to keep natural gas “in the ground,” as activists like to say. Along with political efforts, they are leveraging the administrative state and courts to block new pipelines that are essential to deliver more natural gas to customers in the U.S. and overseas.

Energy companies have already given up on two major pipelines in the Northeast (PennEast and Atlantic Coast) in the past two years. Even after winning legal challenges at the Supreme Court, they faced mounting costs from permitting and legal challenges raising different objections. “The 4,000 pages of permits that we have to submit have created 4,000 opportunities for environmental groups to attack,” Mr. Rice says.

Colin Grabow identifies yet another reason to reject protectionism.

Some Covid Links

(Don Boudreaux)

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Eric Boehm provides yet another – and an especially strong – piece of evidence that Anthony Fauci has the heart, mind, and soul of a tyrant. Two slices:

Anthony Fauci is “surprised and disappointed” with this week’s federal court ruling that overturned the mask mandate on planes, trains, and public transportation.

That’s not because the president’s chief medical advisor disagrees with the substance of Judge Kathryn Kimball Mizelle’s ruling. No: Fauci thinks the problem is that the courts have any power over public health edicts at all.

“Those types of things really are the purview of the [Centers for Disease Control]. This is a public health issue,” Fauci told CNN’s Kasie Hunt on Thursday. “We are concerned about that—about courts getting involved in things that are unequivocally public health decisions. I mean, this is a CDC issue; it should not be a court issue.”

Considering how much of his life he has spent working within or alongside the federal government, Fauci’s belief that the CDC ought to exist outside of the constitutional limitations applied to government actions is stunning. This is either a complete misunderstanding of the American system’s basic functions or an expression of disdain toward the rule of law.

…..

Not getting your way in court is not grounds for discarding the very concept of the rule of law. Neither, for that matter, is a once-in-a-generation pandemic.

Also rightly critical of the arrogant and tyrannical Fauci is the Editorial Board of the Wall Street Journal. A slice:

Democrats are lambasting Judge Kathryn Kimball Mizelle’s well-reasoned ruling this week striking down the Centers for Disease Control and Prevention’s mask mandate on public transportation. But few, if any, have argued like Dr. Fauci that federal courts shouldn’t be allowed to review CDC diktats. Mull over the implications of this one.

The mask mandate “is a CDC issue. It should not have been a court issue,” Dr. Fauci told CNN, adding that “we are concerned” about “courts getting involved in things that are unequivocally public-health decisions.” Ah, yes, the royal “we.” Does the Covid czar think the Supreme Court should have been precluded from reviewing the CDC’s rental eviction moratorium too?

Governments at all levels have abused their emergency powers during the pandemic. Some deference to public-health officials might have been warranted amid the uncertainty early in the pandemic. But as Justice Neil Gorsuch wrote in November 2020, “even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical.”

The emergency has now stretched more than two years. While the Covid virus is becoming endemic, and vaccines and therapies have greatly reduced deaths, the Administration continues to assert that government officials should have sweeping power to take emergency actions in the name of protecting people even if there’s little evidence that they actually do.

Michael Senger documents the “meltdown of the mask cult.”

Jay Bhattacharya tweets:

Not all harms from covidian policy are reversible but some are:
1. Rehire those fired because of vax mandates with back pay
2. Vacate fines for business & churches that stayed open
3. Remove mask scofflaws from no fly lists
4. Investigate & prosecute fraud in govt covid spending

Martin Kulldorff asks if people have been given the wrong vaccine.

“The logic of lockdowns leads to Shanghai.” (HT Martin Kulldorff) A slice:

In what way, we should now ask these figures and institutions, would their vision of a hard lockdown differ from the biomedical security state that has emerged in Shanghai? Do they believe our governments would do a more humane job of enforcing mass house arrest? If American families went hungry, would it comfort the Covidians to know that this was the price of a communal effort to “stop the spread”? And if the government took the lockdown fanatics themselves to an isolation facility that had no running water, as has happened in Shanghai, would they be happy to make the sacrifice? If the state demanded the removal of a 3-month-old baby from its breastfeeding mother, would the Covidians willingly hand him over? What if it “saves one life”?

Although many proponents of Zero Covid may deny that what’s happening in Shanghai is an approximation of their own vision, Shanghai is the logical conclusion of the lockdown mindset, in which no sacrifice is ever too great. This was the mindset of journalists, public-health officials, social-media doctors, and academics who repeatedly demanded the most stringent mitigation measures possible.

The brutality of Shanghai’s lockdown is an indictment of the entire lockdown ideology, which is incompatible with basic human rights.

Quotation of the Day…

(Don Boudreaux)

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… is from page 149 of Thomas Sowell’s magnificent 1995 book, The Vision of the Anointed: Self-Congratulation as a Basis for Social Policy:

Yet, increasingly, government has come to be seen as a way of benefitting particular groups adopted as mascots, often without much regard for what that does to other groups or to the integrity of the system as a whole.

Bonus Quotation of the Day…

(Don Boudreaux)

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… is from the Wall Street Journal’s editorial-features editor James Taranto’s essay “Covid Mask Mandates, Authority and Status,” which appears in today’s print edition:

About a year ago, mask mandates became a matter less of promoting public health than of imposing authority on people with lower status. That explains why they have lingered far longer in schools and colleges, which have the ability to control the behavior of students, than in most adult settings, even though young people are at low risk from Covid. It explains why political officeholders so often flouted their own mask mandates in public. It explains why, during the brief Covid spring of 2021, the CDC decreed that only unvaccinated people needed to keep wearing masks.

Quotation of the Day…

(Don Boudreaux)

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… is an especially helpful one to keep in mind this “Earth Day”; it’s from page 13 of Liza Picard’s fascinating 2000 account of life in mid-18th-century London, Dr. Johnson’s London:

We complain of the pollution caused by petrol-driven engines. Imagine the sheer volume of faeces and urine excreted by the engines of eighteenth-century traffic – that is, horses – let alone the dung of the herds and flocks being driven through the streets to markets and abattoirs.

Bonus Quotation of the Day…

(Don Boudreaux)

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… is from page 10 of the “Behind the Book” section that appears at the end of Lionel Shriver’s marvelous 2016 dystopian novel, The Mandibles:

In a world where central banks actively court inflation, money rots.

DBx: The screenshot is of an image that Mark Perry posted on his Facebook page.

Some Covid Links

(Don Boudreaux)

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Wall Street Journal columnist Allysia Finley describes the dangers of the effort in California to penalize physicians who spread “misinformation” about covid. Two slices:

Early in the pandemic, Covid patients with very low oxygen levels were put on ventilators, the standard of care for severe respiratory diseases. But some doctors noticed that severely ill patients responded better to noninvasive ventilation such as high-flow nasal tubes. They shared their findings with other physicians, and gentler oxygen support became the norm. That change in treatment has saved tens of thousands of lives.

But it would have been illegal under a new bill that Democratic lawmakers have proposed in California. The legislation would require the state Medical Board to take action against doctors found to be spreading “misinformation” related to the “nature and risks of the virus, its prevention and treatment; and the development, safety, and effectiveness of COVID-19 vaccines.”

What is “misinformation”? It’s not clearly defined, but the bill would instruct the board to consider whether a doctor’s order or opinion deviates from the “standard of care” (i.e., recommendations by government bodies or treatments that are widely used by healthcare practitioners) and is “contradicted by contemporary scientific consensus.”

So doctors who prescribe or recommend treatments that haven’t been approved by the Food and Drug Administration for Covid-19—for example, the antidepressant fluvoxamine, which has shown strong results in trials—could be disciplined and even lose their medical licenses no matter if they have scientific evidence to support them. Same for doctors who disagree with masking and vaccines for children.

…..

The intolerance of different viewpoints that is infecting the medical profession may itself be a public-health threat. Emails obtained by the American Institute for Economic Research showed how the National Institutes of Health’s Francis Collins and Anthony Fauci tried to discredit the authors of the Great Barrington Declaration, which opposed the lockdown consensus. “This is a fringe component of epidemiology,” Dr. Collins told the Washington Post. “This is not mainstream science. It’s dangerous.”

What’s actually dangerous is silencing debate on critical public-health issues. Mainstream science is often wrong, as vaccine expert Paul Offit explains in his book “Overkill: When Modern Medicine Goes Too Far.” Dr. Offit details how many conventional medical recommendations, like finishing a course of antibiotics or giving Tylenol to reduce a child’s fever, aren’t supported by science and can do more harm than good. Many recommendations have changed over time as scientists learn more and do more studies.

Joel Zinberg describes as “a breath of fresh air” Judge Kathryn Kimball Mizelle’s decision – in the CDC mask-mandate case – to strike down what Zinberg calls “rule-by-bureaucrats.” Two slices:

The CDC claimed that it was relying on Section 264(a) of the Public Health Service Act, which empowers it to issue regulations “to prevent the introduction, transmission, or spread of communicable diseases from foreign countries,” and from state to state. Last year, the agency claimed the same section gave it authority to issue a nationwide eviction moratorium. The Supreme Court struck down the moratorium on the grounds that the CDC had exceeded its statutory authority, since the statute narrows the types of measures it can implement to limit the spread of disease to fumigation, disinfection, sanitation, and pest extermination.

The Florida district court followed the same reasoning to conclude that Section 264(a) also does not authorize the CDC to issue a mask mandate. As in the Supreme Court’s eviction-moratorium ruling, the district court invoked the “major questions doctrine,” which requires “Congress to speak clearly” in the statutory language if it intends to authorize an administrative agency to make decisions “of vast economic and political significance.” The CDC claimed that Section 264(a)’s reference to providing for “sanitation” or “other measures” gives it broad, indeed almost unlimited, powers to take measures applying to both sick and healthy people that would limit the spread of disease and preserve public health. But the statutory language does not do that.

Section 264(a) actually refers to actions (fumigation, disinfection, sanitation) taken on “animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings”—not to taking those same actions on human beings. While the CDC claimed the mandate was a “sanitation” measure allowed by the statute, the court held that the mandate has nothing to do with sanitation as it is commonly understood—cleaning or sanitizing.

…..

The federal mask mandate increasingly seemed like an anachronism. State and local governments and businesses around the country have dropped indoor mask mandates in response to plunging Covid case, hospitalization, and death rates. At best, the CDC came across as overcautious; at worst, it seemed like a sclerotic bureaucracy clinging to its power to dictate peoples’ daily lives.

A lasting benefit of the pandemic appears to be public realization that government bureaucratic experts do not always know what is best and an increased judicial willingness to rein in administrative agencies’ expansive view of their regulatory powers. The mask-mandate ruling, along with the earlier Supreme Court eviction-moratorium ruling, limits the CDC’s broad claims of authority under the Public Health Service Act.

Also weighing in on the court reining in covidocratic arrogance, overreach, and unlawfulness is Randy Holcombe. A slice:

I’ve done a fair amount of travel in the past few weeks, to South Carolina, Tennessee, Texas, and Nevada, and I observed that the only place where people wore masks was airports. Sure, a few people wore them in other areas, but the vast majority did not. People were already disregarding the CDC’s advice when they could get away with it.

The CDC might be right, so I’m not passing judgment on whether their advice to mask up is medically sound. I’m observing that most people don’t trust the CDC’s advice, and when they have a choice, they choose to disregard it (with regard to masks, anyway).

Government authority is undermined when people don’t trust the government. Perhaps the widespread disregard of the CDC’s public health advice is a good sign. People will think for themselves and make their own decisions rather than uncritically doing what the government tells them they should do.

(DBx: In the Virginia suburbs of DC, where I live, mask wearing is still common indoors, and it’s not uncommon outdoors. For example, I estimate that more than 50 percent of people in supermarkets still wear masks. And not a day passes – I’ve been paying attention – when I don’t see people driving apparently alone yet fully masked. The frequency of masking in my stomping grounds has, thankfully, fallen noticeably in the past couple of weeks, but I – who never wear a mask, save when in airports and planes – remain in the minority in most places frequented by the public in northern Virginia.)

Here’s Reason‘s Jacob Sullum on Judge Mizelle’s ruling against the CDC’s unlawful exercise of administrative power. A slice:

The mandate’s supporters seem determined to obscure what was at stake in this case. “Public health decisions shouldn’t be made by the courts,” White House Press Secretary Jen Psaki told reporters yesterday. “They should be made by public health experts.” But Mizelle did not make a public health decision; she made a legal decision, based on her understanding of the relevant statute.

Contrary to Psaki’s implication, courts are not only authorized but obligated to make such decisions, as she surely would have conceded had Mizelle ruled in the CDC’s favor. If politicians acknowledged the judicial branch’s authority to interpret and apply statutes only when they liked the result, it would be fatal to the rule of law.

Unfortunately, a few hours after Sullum published his piece on Wednesday afternoon, the DOJ decided to appeal Judge Mizelle’s ruling.

Washington Post columnist Megan McArdle – who’s no libertarian opposed in principle to strict covid mandate – writes that it is time that the CDC’s mask mandate be lifted. A slice:

It is time for indoor mask mandates to end. They had to end sometime, after all, and if not now, when?

“When people stop dying!” says a voice from the back. But that ceased to be a workable answer last summer when it became clear that the vaccines were not providing the sterilizing immunity that might have allowed us to eliminate the virus, the way we have done with smallpox and polio. Anything short of that requires us to figure out how to live with a virus that will continue to circulate. And by “live,” I mean full, normal lives, not the severely restricted public activities of the past couple of years.

“Contra CDC, School Masking Did Not Keep Kids In School.”

Reason‘s Nick Gillespie talks with the heroic Jay Bhattacharya.

Quotation of the Day…

(Don Boudreaux)

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… is from page 69 of Deirdre McCloskey’s 2021 volume, Bettering Humanomics: A New, and Old, Approach to Economic Science (footnote deleted):

To devalue the royal or aristocratic values is to leave the bourgeoisie in charge. It happened in Holland. Romantic people, attached on the political right to king and country and on the political left to revolution, sneer at the Enlightenment, then and now. What was unique about the Enlightenment was precisely the elevation of ordinary, peaceful people in ordinary, peaceful life, an elevation of trade over the monopoly of coercion.

On Mask Mandates

(Don Boudreaux)

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Here’s a letter to the Wall Street Journal:

Editor:

You rightly praise Judge Kathryn Kimball Mizelle for striking down the CDC’s mask mandate – a ruling that is indeed properly grounded in legal, and not policy, considerations (“America’s Unmasked Singers,” April 20). But as it happens, Judge Mizelle’s ruling is consistent also with the science. On the very day that Judge Mizelle ruled, the eminent science journalist John Tierney published in City Journal an in-depth survey of much of the research on mask mandates. This research contradicts those who insist that mask mandates are effective at reducing the spread of the SARS-CoV-2 virus. As Tierney concludes, “[c]overing up may give the maskaholics a false sense of security – but they could breathe more easily if they’d just face the facts.”*

Sincerely,
Donald J. Boudreaux
Professor of Economics
and
Martha and Nelson Getchell Chair for the Study of Free Market Capitalism at the Mercatus Center
George Mason University
Fairfax, VA 22030

* John Tierney, “Maskaholics,” City Journal, April 18, 2022.