Tag: civil liberties

Justice Gorsuch goes into beast mode over COVID restrictions

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Justice Gorsuch wrote an opinion on Thursday in Arizona, et al. v. Mayorkas (2023), and we touched on it yesterday for the purpose of talking about how Ian Milhouse Millhiser was dragged for a comment and how his dumb comment allowed people to point out how many times Democrats had violated our civil liberties. And pointing at laughing at Millhiser is a good thing.

Still, Justice Gorsuch’s opinion deserves a lot more attention. The essential Professor Eugene Volokh devotes an entire post quoting extensively from it, and we wouldn’t cut a word from that passage:

Since March 2020, we may have experienced the greatest intrusions on civil liberties in the peacetime history of this country. Executive officials across the country issued emergency decrees on a breathtaking scale. Governors and local leaders imposed lockdown orders forcing people to remain in their homes. They shuttered businesses and schools, public and private. They closed churches even as they allowed casinos and other favored businesses to carry on. They threatened violators not just with civil penalties but with criminal sanctions too.

They surveilled church parking lots, recorded license plates, and issued notices warning that attendance at even outdoor services satisfying all state social-distancing and hygiene requirements could amount to criminal conduct. They divided cities and neighborhoods into color-coded zones, forced individuals to fight for their freedoms in court on emergency timetables, and then changed their color-coded schemes when defeat in court seemed imminent.

Federal executive officials entered the act too. Not just with emergency immigration decrees. They deployed a public-health agency to regulate landlord-tenant relations nationwide. They used a workplace-safety agency to issue a vaccination mandate for most working Americans. They threatened to fire noncompliant employees, and warned that service members who refused to vaccinate might face dishonorable discharge and confinement. Along the way, it seems federal officials may have pressured social-media companies to suppress information about pandemic policies with which they disagreed.

While executive officials issued new emergency decrees at a furious pace, state legislatures and Congress—the bodies normally responsible for adopting our laws—too often fell silent. Courts bound to protect our liberties addressed a few—but hardly all—of the intrusions upon them. In some cases, like this one, courts even allowed themselves to be used to perpetuate emergency public-health decrees for collateral purposes, itself a form of emergency-lawmaking-by-litigation.

Doubtless, many lessons can be learned from this chapter in our history, and hopefully serious efforts will be made to study it. One lesson might be this: Fear and the desire for safety are powerful forces. They can lead to a clamor for action—almost any action—as long as someone does something to address a perceived threat. A leader or an expert who claims he can fix everything, if only we do exactly as he says, can prove an irresistible force.

We do not need to confront a bayonet, we need only a nudge, before we willingly abandon the nicety of requiring laws to be adopted by our legislative representatives and accept rule by decree. Along the way, we will accede to the loss of many cherished civil liberties—the right to worship freely, to debate public policy without censorship, to gather with friends and family, or simply to leave our homes. We may even cheer on those who ask us to disregard our normal lawmaking processes and forfeit our personal freedoms. Of course, this is no new story. Even the ancients warned that democracies can degenerate toward autocracy in the face of fear [citing Aristotle’s Politics].

But maybe we have learned another lesson too. The concentration of power in the hands of so few may be efficient and sometimes popular. But it does not tend toward sound government. However wise one person or his advisors may be, that is no substitute for the wisdom of the whole of the American people that can be tapped in the legislative process.

Decisions produced by those who indulge no criticism are rarely as good as those produced after robust and uncensored debate. Decisions announced on the fly are rarely as wise as those that come after careful deliberation. Decisions made by a few often yield unintended consequences that may be avoided when more are consulted. Autocracies have always suffered these defects. Maybe, hopefully, we have relearned these lessons too.

In the 1970s, Congress studied the use of emergency decrees. It observed that they can allow executive authorities to tap into extraordinary powers. Congress also observed that emergency decrees have a habit of long outliving the crises that generate them; some federal emergency proclamations, Congress noted, had remained in effect for years or decades after the emergency in question had passed.

At the same time, Congress recognized that quick unilateral executive action is sometimes necessary and permitted in our constitutional order. In an effort to balance these considerations and ensure a more normal operation of our laws and a firmer protection of our liberties, Congress adopted a number of new guardrails in the National Emergencies Act.

Despite that law, the number of declared emergencies has only grown in the ensuing years. And it is hard not to wonder whether, after nearly a half century and in light of our Nation’s recent experience, another look is warranted. It is hard not to wonder, too, whether state legislatures might profitably reexamine the proper scope of emergency executive powers at the state level.

At the very least, one can hope that the Judiciary will not soon again allow itself to be part of the problem by permitting litigants to manipulate our docket to perpetuate a decree designed for one emergency to address another. Make no mistake—decisive executive action is sometimes necessary and appropriate. But if emergency decrees promise to solve some problems, they threaten to generate others. And rule by indefinite emergency edict risks leaving all of us with a shell of a democracy and civil liberties just as hollow.

So, what was the case about? Well, we tend to agree with this guy:

The issues of the case were purely procedural, but tangentially related to the official end of the COVID emergency. Beyond that, we doubt it is terribly interesting outside of the legal community. What is more interesting is that searing indictment.

In any case, there was great rejoicing at Gorsuch’s opinion:

It’s amazing how much more sensible you get when you change ‘Ian Millhiser’ to ‘Ian Miller.’ Apparently, the extra ‘h-i-s’ in the name is the problem.

And, of course, there were some people who don’t want to admit the COVID madness was all a mistake that we needed to learn from.

We are always amazed when someone actually uses that word. Do they actually use it in conversations? Do they also clutch pearls and/or drop monocles? Do they say ‘well, I never!’ in a huff? Inquiring minds and all that.

Except that’s not a thing that happens in American law. If the baby is dead, it is not an abortion to remove it.

As for the people taking issue with Gorsuch’s statement that ‘Since March 2020, we may have experienced the greatest intrusions on civil liberties in the peacetime history of this country’ pointing to slavery or Jim Crow or other abuses, a few things to note.

First, he didn’t say it absolutely was the worst, only that it ‘may’ have been among the worst.

Second, let’s not forget what restrictions like the lockdowns were. Telling people that they are not allowed to leave their homes except to work, get food or other necessities? That’s almost exactly the same as what is colloquially called ‘house arrest’—a punishment often meted out to people convicted of a criminal offense. Oh, except under house arrest, you were still allowed to go to church and very often under COVID restrictions you weren’t.

And that is one form of restriction. Go and read his opinion and take a walk down memory lane on all the stuff they forced us to do and forbade us to do—except, of course, the people in power refused to live by their own rules.

So, while slavery was unquestionably worse for each person enslaved, these COVID restrictions were done to almost everyone at a time when the American population dwarfed the total number of people kept as slaves since the founding of the republic. We think comparisons of human misery is a bit like arguing about how many angels can dance on the head of a pin—basically it’s a profound waste of time—but there is a non-laughable argument that COVID restrictions were greater not in the amount of misery each person felt, but in the sheer number of people who felt that misery.

But we also suspect that the point of quibbling with that one line is about exactly that: Wasting everyone’s time, so no one actually goes and reads Gorsuch’s barn burner of an opinion.

For our part, we are reminded of Justice Robert Jackson’s brilliant dissent in Korematsu v. United States, 323 U.S. 214 (1944). That case involved one of those times when racist Democrats trampled on the civil liberties of Americans, this time the involving the internment of Japanese Americans during World War II. Horrified by a majority opinion that pretended there was nothing unconstitutional in locking up Americans for no other reason than their race or ethnicity, Jackson wrote this:

Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.

Fortunately, in the case of Korematsu, the decision became what we call an anti-precedent: A case influential in the sense that courts are repulsed by it, and are wary of doing something similar, again. Finally, in Trump v. Hawaii, 138 S. Ct. 2392 (2018), the Supreme Court took a moment to declare that Korematsu was overturned in an opinion by Chief Justice Roberts:

The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear— ‘has no place in law under the Constitution.’

Which would be much more meaningful if Roberts didn’t forget the lessons of Jackson’s dissent in Korematsu two years later during the pandemic.

(Special thanks to @SimonTemplarPV for helping us create the preview picture.)

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Would reparations lead to irresponsible spending? Studies on other cash windfalls suggest not, new report says.

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The perception that people often succumb to misfortune and bad decision-making after suddenly receiving large amounts of cash isn’t based in fact, researchers said in a report published Thursday by the Roosevelt Institute, a progressive think tank.

That means potential reparations payouts to Black Americans are unlikely to result in reckless spending, financial ruin and reduced labor productivity, the report’s authors wrote after undertaking a review of prior research concerning consumer behavior after lottery windfalls and inheritances, as well as more minor cash transfers through tax refunds and guaranteed-income programs. 

“There’s what we really describe as kind of an urban myth … that people who receive lottery winnings squander the money very quickly,” reparations scholar William “Sandy” Darity, a Duke University professor of public policy and economist who co-authored the report, said in an interview. “The best available evidence indicates that that’s not the case.”

Whether Black residents and descendants of enslaved people in the U.S. are owed reparative payments has been debated for centuries. But as the country has grown more economically unequal while a stubborn racial wealth gap persists, the reparations movement has picked up traction.

In California, a first-of-its-kind state task force on reparations approved a slate of recommendations for lawmakers this month that, if implemented through legislation, would potentially provide hundreds of billions of dollars in reparative monetary payments to Black Californians to address harms caused by factors including racial health disparities, housing discrimination and mass incarceration. San Francisco, which has its own reparations task force, is also considering one-time reparative payments of $5 million for eligible people.

Read more: California task force approves sweeping reparations potentially worth billions of dollars

Still, detractors say that granting reparations to Black Americans — as was done for Japanese Americans incarcerated in internment camps during World War II and, on a state level, for survivors who owned property in the town of Rosewood, Fla., before a race massacre destroyed it — is unwise.

Some argue that giving people reparative payments without requiring certain parameters or personal-finance courses could result in irresponsible spending behavior, or that reparations proposals are themselves racist in suggesting that Black people need “handouts.”

“‘One of the important things that lottery winners do with the money is that they frequently set up trust accounts or the equivalent for their children or their grandchildren.’”


— William ‘Sandy’ Darity, a leading reparations scholar

The authors of the Roosevelt Institute report, for their part, said the assumption that Black Americans would be unable to handle sudden windfalls is rooted in racism — noting the racial wealth gap wasn’t created through “defective” spending habits but through policies that pumped money into white households, including unequal land distribution and subsidies for homebuyers.

“Widely held, inaccurate, and racist beliefs about dysfunctional financial behavior of Black Americans as the foundation for racial economic inequality leads to a conclusion that monetary reparations will be ineffective in eliminating the gap,” they wrote. “According to this perspective, if eligible Black Americans do not change their financial mindset and behavior after receiving financial reparations, the act of restitution will be empty.”

How people spend lottery winnings and inheritances

Even so, there’s not really “any carefully drawn-out study of what has happened to folks who have received reparations payments,” Darity said. It’s “impossible to understand” the impacts of such programs, because there haven’t historically been “systems in place that give money directly to individuals” — allowing “anecdotal cynicism and urban mythology” to drive the narrative, the report’s authors wrote.

“The best that we could do is try to think about other types of instances in which people have received windfalls where there has been some follow-up on what the consequences have been,” Darity said.

To see how people really react when they’re granted new amounts of money, the authors examined outcomes both from people who had received “major” windfalls — ones that immediately and majorly change a person’s wealth status, like winning the lottery — and “minor” windfalls, or those that affect a person’s income but don’t meaningfully shift their wealth status, like the stimulus checks doled out earlier in the COVID-19 pandemic. 

Darity, who directs Duke University’s Samuel DuBois Cook Center on Social Equity, worked alongside the report’s lead author, Katherine Rodgers, a former research assistant at the Cook Center who currently works as a senior associate at the consulting firm Kroll, as well as Sydney A. Grissom, an analyst for BlackRock. Lucas Hubbard, an associate in research at the Cook Center, was also an author of the report. 

They found that while a person’s behavior can vary based on the windfall amount and how it’s framed to the recipient, as well as their previous economic status, their reactions tend to buck stereotypes. 

For example, only 11% of lottery winners quit their job in the findings of one 1987 study that examined 576 lottery winners across 12 states — and none of the people who got less than $50,000 left work, according to the Roosevelt Institute report. However, people were more likely to quit their jobs if they won a sum worth $1 million, had less education, were making under $100,000 a year, and hadn’t been in their job for more than four years.

Studies of lottery winners in other countries have found similarly muted labor responses, the report said. A separate U.S. study from 1993 of the labor effects on people who had received inheritances ranging from $25,000 to $150,000 or more also found that only a “small but statistically significant percentage of heirs left their jobs after receiving their inheritance,” with workers most likely to leave their jobs if they got a big payout. 

But it’s still “less than what the stereotype would say,” Hubbard said in an interview: 4.6% of individuals quit their jobs after receiving a small inheritance of less than $25,000, compared to 18.2% of workers who got an inheritance of more than $150,000, he noted.

Instead, studies have shown that people who get windfalls may be more likely to become self-employed, participate in financial markets, save, and spend money on necessary goods like housing and transportation, the report’s authors wrote. 

“One of the important things that lottery winners do with the money,” Darity said, “is that they frequently set up trust accounts or the equivalent for their children or their grandchildren.”

Small windfalls, including those offered through monthly checks from guaranteed-income pilot programs, have also been shown to be used for essentials like food and utilities without negative effects on employment. The framing of the money received can also have an effect on how it’s spent, the authors said: People who get a payout from bequests or life insurance tend to have more negative emotions about the money and will use it for more “utilitarian” purposes, according to one 2009 study. 

From the archives (March 2021): Employment rose among those in California universal-income experiment, study finds

Reparations wouldn’t unleash ‘flagrant spending,’ researchers say

Despite their findings, “windfalls are not magical panaceas for all financial woes,” the authors emphasized.

For example, a 2011 study cited in the report found that among people who were already in precarious financial positions, lottery winnings delayed, rather than prevented, an eventual bankruptcy filing. Another report from 2006 found that “large inheritances led to disproportionately less saving,” the researchers noted in the Roosevelt Institute report.

“Research over the past two decades has demonstrated that their bounties are not limitless, and, crucially, that informed stewardship of received assets is still necessary (albeit, not always sufficient) to achieve and maximize long-term financial success,” the authors wrote.

But they added that reparations, particularly if “framed not as handouts but rather as reparative payments” to Black Americans, would not unleash “flagrant spending on nonessential goods” based on studies on windfalls, and could instead improve recipients’ emotional well-being and financial stability. 

“Of course, the merits of making such payments should not be assessed solely on the basis of the anticipated economic effects,” the authors said. “Moreover, using the absence of evidence of this type as a justification for delaying reparative payments, such as those to Black descendants of American slavery, is inconsistent with the fact that other groups previously have received similar payments in the wake of atrocities and tragedies.”

From the archives (January 2023): How to pay for reparations in California? ‘Swollen’ wealth could replace ‘stolen’ wealth through taxes.

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