As private-sector employees increasingly reject union organizing campaigns, and as unions continue to lose representation elections, the anti-employer NLRB has found new ways to force unions on unwilling employees and impose bargaining obligations on employers without the benefit of an election, contrary to the National Labor Relations Act. Recent events involving the United Auto Workers union illustrate these trends. Organizing workers in southern states will be a challenge, even with the tag team-style assistance of the NLRB.

For a variety of reasons, the portion of the private-sector workforce represented by a union has dramatically declined from a peak of around 35 percent in 1954 to a mere six percent in 2023—the lowest percentage since the NLRA was passed. The union membership rate of government employees, in contrast, is more than five times greater, at 32.5 percent. The NLRA, intended to remedy the supposed imbalance of “bargaining power” between capital and labor, doesn’t even cover government workers, who (in theory at least) serve the public.

Despite union rhetoric espousing “industrial democracy,” the irony is that public school teachers and government bureaucrats are far more likely to be unionized than factory workers and other blue-collar occupations. In terms of members, the UAW, once an industrial powerhouse, is dwarfed by the National Education Association and other public-sector unions, such as AFSCME and SEIU. The decline of the US auto industry parallels the shrinkage of Detroit’s population from 1.8 million residents in 1950 to about 630,000 today. The ebbing fortunes of the corruption-plagued UAW mirror those of the domestic auto industry—and the Motor City itself. Over the past decade, more than a dozen UAW officials were convicted of crimes, including two past presidents.

At present time, there are more autoworkers unrepresented by the UAW in southern and midwestern states—mostly employed by foreign automakers—than there are unionized autoworkers employed by the Big Three in Detroit. As I wrote here in 2016, the plethora of reasons for organized labor’s decline in the private sector includes, among others, globalization, the development of new technologies, and changing laws.

Moreover, increasing numbers of employees simply don’t want to join a union, especially those with sordid records of corruption. The UAW’s ability to organize workers in right-to-work states will be critical to regaining its prior stature and influence. But that presents certain challenges, since many blue-collar workers in red states will likely not find the militant UAW’s progressive politics appealing.

Firebrand UAW president Shawn Fain, who wears t-shirts with slogans like “Eat the Rich,” has made organizing auto workers at non-union plants a top priority. Because in recent decades automakers have generally avoided opening plants in union-friendly Michigan and adjacent states, there are many non-union plants in the US for the UAW to target. According to the Wall Street Journal, “Automakers invested billions of dollars in new factories in states such as Georgia, Kentucky, and Tennessee, accelerating the industry’s move to the South.” The UAW, in turn, is investing $40 million over two years to organize auto plants in Texas, Mississippi, Alabama, Georgia, and South Carolina.

Most of the non-union auto plants are operated by foreign-owned companies such as Hyundai, Toyota, Nissan, Honda, Mazda, Volvo, and Subaru, some of which have previously successfully repelled UAW organizing campaigns. The plants were built in right-to-work states to avoid the UAW. Looking at the Big Three’s disastrous history with the UAW—forfeiting management prerogatives, hobbling themselves with inefficient work rules, paying above-market wages and benefits, etc.—the foreign-owned companies are highly motivated to avoid the same trap.

Many observers viewed the UAW’s recent election victory at Volkswagen’s 4,300-worker plant in Chattanooga, Tennessee—following two prior defeats there—as a harbinger that the union’s fortunes were improving under Fain’s leadership. Last year, Fain oversaw a successful strike against the Big Three automakers in Detroit. The UAW’s win in Chattanooga was notable because Tennessee is a right-to-work state, the election was opposed by Tennessee Governor Bill Lee (and five other Republican southern governors), and the UAW had never previously prevailed at a foreign-owned auto plant in the South.

However, union boosters’ hopes were dashed a month later, when in May workers at a Mercedes-Benz plant in Alabama rejected the UAW by a resounding margin of 56 to 44 percent, with an employee turnout of more than 90 percent. Was the successful Volkswagen election a fluke, or will the UAW eventually be able to prevail in Alabama? Only time will tell. In the meantime, the UAW has filed unfair labor practice charges with the NLRB against Mercedes-Benz, claiming that the automaker interfered in the election by disciplining union supporters, making coercive statements to employees, and forcing workers to attend meetings urging them to vote against union representation. Mercedes-Benz denies the charges. 

If the NLRB concludes that the charges have merit, it could order a new election. It appears eager to enlarge its remedial powers, albeit at the expense of sacrificing the policy of secret ballot elections. Despite the NLRA’s longstanding commitment to honoring employees’ free choice regarding union representation, the NLRB has—under Democratic administrations—become a devoted ally of organized labor, and this is certainly true under President Joe Biden.

Traditionally, employers have not been required to “recognize” or bargain with a union unless and until the union has won a secret ballot certification election. This is to preserve the employees’ right of free choice. To the same end, the remedy for an election tainted by an employer’s commission of “unfair labor practices” (as determined by the pro-union NLRB) was generally to hold a new election—except in rare cases of “egregious” unfair labor practices that destroyed the union’s majority support among the employees. When that happened, the NLRB could issue a “bargaining order” against the employer, even in the absence of a certified election in favor of the union. This rarely-invoked rule, based on the Gissel Packing case, had been in effect since 1969.

Winning elections is difficult and expensive, in both politics and the workplace. Unions prefer to demand recognition based on merely showing the employer “authorization cards” purportedly signed by a majority of employees. This is a shortcut around secret ballot elections, which are favored by employers as the most reliable indicator of their employees’ preferences. Determining union representation based on authorization cards is like replacing political elections with public opinion polls; the most reliable indicator of free choice in both cases is a secret ballot cast in a fair election. Authorization cards can, after all, be procured through coercion, intimidation, and misrepresentations.

Last year, the NLRB issued a controversial—some say radical—decision in a case (Cemex Construction Materials) holding that an employer may be ordered to bargain with a union, in the absence of a certified election, if it declines to recognize a card showing and then commits even a single unfair labor practice. In other words, the NLRB has adopted a legal theory that could impose union representation on employees who never voted in favor of it. This is the opposite of honoring free employee choice.

This decision increases the legal risk for employers who decline to recognize a union based on a showing of cards; the union’s subsequent filing of an unfair practice charge could result in a bargaining order, even in the absence of a certification election (or, as in Cemex, an election that the union lost). The NLRB’s General Counsel, Jennifer Abruzzo, a progressive union advocate who previously represented the Communications Workers of America, is aggressively applying the Cemex decision to punish employers who refuse to recognize a card showing by the union—ignoring the NLRA’s secret ballot election requirement.

In terms of organizing foreign-owned non-union auto plants in southern states, UAW President Shawn Fain has his work cut out for him, but he has the advantage of an NLRB willing to bend the legal rules in favor of compelling recognition of unions—and imposing union representation on employees—without elections. Of course, the leadership and direction of the NLRB could change depending on the results of another election—the one scheduled for November 5.

The post The Continuing Decline of the Private-Sector Union appeared first on Law & Liberty.

State-level innovation also affects the mechanics of lawmaking. Texas, for instance, exalts democracy by making most government officials—including judges—subject to popular election. Tennessee’s approach is in the opposite direction, with the state attorney general uniquely being appointed (for an eight-year term) by the state supreme court, the members of which are in turn appointed by the governor. 

Some states, such as California, have a populist tradition that embraces lawmaking by initiative and referendum. In the Golden State, citizens can propose, enact, and repeal laws—and even constitutional amendments—as ballot measures. 

This kind of “direct democracy” makes it easier for voters to change the law, which promotes responsiveness to the people, but this fluidity also contributes to the passage of laws that are impermanent—as easily erased as the image on an Etch-A-Sketch. Proposition 209 (also known as the California Civil Rights Initiative [CCRI]), the landmark anti-discrimination measure passed by the voters in 1996, is a case in point. Prop. 209, enacted in the Bakke era when racial preferences by state universities were permitted, but not required, amended California’s state constitution to prohibit the state from “discriminat[ing] against, or grant[ing] preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”

Prop. 209 inspired a similar initiative (known as Proposal 2) in Michigan, which voters adopted in 2006, and which was upheld by the US Supreme Court in 2014. Both Prop. 209 and Proposal 2 demand government neutrality on the basis of race and sex. Ironically, color blindness is very controversial among so-called civil rights groups, which long ago abandoned the non-discrimination principle of Brown v. Board of Education and the Civil Rights Act of 1964. Prop. 209, which anticipated the Supreme Court’s 2023 decision in Students for Fair Admissions v. Harvard, passed by a margin of 55 percent to 45 percent, and has withstood several attempts to overturn it (both politically and via litigation). 

In 2020, for example, California voters rejected a well-funded—to the tune of over $25 million!—effort to repeal Prop. 209, with a ballot measure known as Proposition 16, by an even greater margin (57 percent to 43 percent) than CCRI enjoyed in its original passage a quarter-century earlier. Remarkably, voters supported the preservation of Prop. 209 despite being outspent by Prop. 16 backers 14-to-1, and even though Prop. 16 was endorsed by the Golden State’s “two US Senators, many of its US Representatives, California’s governor, its attorney general, many state and local politicians, professional sports teams, labor unions, the ACLU, business elites, and major media outlets.” In other words, the wishes of California voters were emphatically clear: Maintain the ban on racial and sexual preferences.

By design, the US Constitution is difficult to amend. Article V’s requirement of ratification of amendments by three-quarters of the states imposes a daunting hurdle. The need to achieve a contemporaneous consensus among 38 states reduces the likelihood of frivolous decisions and promotes stability. Of the 27 amendments adopted so far, only one (the Twenty-first) repealed an earlier amendment (the prohibition of intoxicating liquors, in the Eighteenth Amendment). As I wrote here in 2017, “The amendment process in Article V was intended to be onerous so that hasty and ill-considered changes could be weeded out.” If the California Constitution were as difficult to amend as our national charter, the voters’ recent (and overwhelming) rejection of Prop. 16 would ensure the continued vitality of Prop. 209. Only it isn’t, and it hasn’t—because of the perils of populism.

As explained by CCRI co-chair Gail Heriot, who is also a member of the US Commission on Civil Rights, Prop. 209 is once again in the Left’s cross-hairs. Ignoring the clearly expressed will of the voters, the California legislature is considering yet another attempt to gut Prop. 209. In an article for City Journal entitled “Not Taking No for an Answer,” Heriot sounds the alarm regarding something called Assembly Constitutional Amendment 7 (ACA7), which has already passed the California Assembly and is under consideration by the California Senate. Proponents need two-thirds of each house (meaning 27 of the Senate’s 40 members) to put ACA7 on the ballot. 

If ACA7 qualified for the ballot and won by a simple majority of votes (50 percent plus one) in the November 2024 election, the non-discrimination provisions of Prop. 209 would become subject to “exceptions,” granted in the sole discretion of the Governor, upon the application of any city, county, or other governmental agency. The process seems rigged in favor of granting exceptions. The Governor may grant exceptions without explanation, but must justify denials with a written statement posted on the internet. Political pressure will tilt the scale toward approving requests for loopholes. While technically requests for exceptions must be for “culturally-specific” programs that are intended to benefit a specific racial, ethnic, or gender group, and that are based on (or “informed” by) “research,” these terms are either so vague or undefined to make the restrictions meaningless.

If ACA7 were passed, the provisions of Prop. 209 would in effect become optional on the part of the state and its political subdivisions; racial, ethnic, and other minority spoils could be doled out by the identity politics apparatchiks at their whim. The proponents of ACA7 include the California Legislative Black Caucus, which supports a “Reparations Priority Bill Package,” of which ACA7 is a part. Gutting Prop. 209 is a top priority for the ultra-progressive special interests that now dominate the California legislature. If the California Senate passes ACA7 by a two-thirds margin, the hard-fought success of Prop. 209 would be subject to defeat if voters were confused by the latest of the serial campaigns against CCRI. Should the provisions of the state constitution be determined by such ballot measure roulette? Is the potential for a fluke result sufficient grounds for putting a measure on the ballot?

California’s initiative and referendum processes have allowed voters to adopt several policies advocated by conservatives in the Golden State: for example, property tax reform in Prop. 13 (1978); the protection of traditional marriage in Props. 22 (2000) and 8 (2008) (overruled by judicial decisions); legislative term limits in Prop. 140 (1990); and Prop. 209. Many dubious measures have been proposed as well—and some, unfortunately, have passed. To make the California Constitution less of an Etch-A-Sketch, perhaps the repeal (or negation) of constitutional provisions should require a super-majority of voters. By their nature, constitutions are superior to legislation, and therefore should be harder to change. An ephemeral constitution is not truly a constitution. 

There is nothing wrong with democracy per se; after all, our system of government rests on popular sovereignty and the Constitution begins with the words “We the people.” The initiative process, however, is unfiltered democracy—direct from the voting booth to the law books. Unconstrained populism is not well suited for sober tasks such as amending the constitution. 

Progressive Era California Governor Hiram Johnson advocated for the initiative and referendum processes (as well as recall) to empower the people to take back power from the railroad interests (in particular the Southern Pacific Company) that controlled the legislature in the late 1800s and early twentieth century. Those days are long gone. Different special interests now dominate state government in Sacramento. Hiram Johnson would likely be chagrined to see that powerful factions—the 2024 version of Southern Pacific Railroad—are using the initiative process to thwart the will of the people. The fickle nature of direct democracy is in tension with the stability necessary for constitutional government.

Constitutions are supposed to be more durable and more resistant to passing political fads and shifting political winds than mere laws; they are the state’s fundamental charter. The multiple efforts to weaken or repeal Prop. 209 highlight the perils of pure populism. Constitutional protections deserve better than ad hoc tinkering by plebiscite.

The post The Perils of Pure Populism appeared first on Law & Liberty.

As explained below, Martin v. Boise was a facially ridiculous decision. Preventing cities from maintaining order in public spaces undermines civic society and ill-serves the population of drug addicts and mentally ill—representing the overwhelming majority of “homeless”—who need help. Grants Pass expanded the specious holding of Martin v. Boise on a class action basis, eliciting a torrent of vociferous dissent from the more sensible judges on the Ninth Circuit.

By banning the enforcement of anti-camping ordinances throughout the jurisdiction of the Ninth Circuit—which includes (among others) the states of Washington, Oregon, California, and Arizona—that court has overseen the proliferation of homeless encampments in Seattle, Portland, San Francisco, Los Angeles, San Diego, Phoenix, and countless other cities. “Homeless encampments”—a euphemism for the squalid detritus of vagrants, drunks, drug addicts, and mentally ill formerly derided as “hobo jungles,” “shanty towns,” or, during the Great Depression, “Hoovervilles”—are a blight on the urban locations where they unfortunately often appear. Especially in the western United States, sprawling homeless encampments have become ubiquitous, to the disgust and dismay of local residents. Martin v. Boise is largely to blame.

When I worked at the federal courthouse at 312 North Spring Street in Los Angeles in 1980, it was adjacent to a malodorous area known as Skid Row. The difference between then and now is that Skid Row is no longer an isolated area on the fringe of downtown Los Angeles; it has spread throughout the city. Similarly, the filth and pathos once limited to the Tenderloin district of San Francisco is now endemic everywhere in the Golden Gate City. Because of Martin v. Boise, municipalities within the Ninth Circuit are helpless to prevent public areas from being transformed into squatter camps, tent cities, and open-air drug dens.

When activist judges deem anti-camping ordinances to be unconstitutional, vagrants are entitled to sleep—and defecate—on the sidewalks, take up residence in parks and under overpasses, and generally despoil public spaces that taxpayers formerly enjoyed as safe, serene havens. Martin v. Boise is an abomination that has wreaked havoc on an area of the country that stretches from Alaska to Arizona, and Hawaii to Montana, and contains over 65 million residents—fully twenty percent of the nation’s population. But its reign may be coming to an end.

Classic Judicial Activism

The Eighth Amendment does not restrict the types of crimes that states and their political subdivisions can punish, a matter wholly within their plenary police power. The only thing the Eighth Amendment addresses is punishment for crime, in these terms: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Eighth Amendment does not grant unelected federal judges the right to second-guess the political decisions of state and local officials. As the dissenters in Grants Pass pointed out, Martin v. Boise seriously misconstrued the Eighth Amendment and the Supreme Court’s caselaw applying it. State and local governments have—since the beginning of the republic—had broad authority to deal with “public order” offenses such as vagrancy, public drunkenness, begging, disorderly conduct, soliciting prostitution, indecent exposure, and so forth.

The Ninth Circuit has usurped this authority by dictating whether, and under what circumstances, vagrants can despoil public spaces. The activist decisions of the Ninth Circuit majorities in Grants Pass and Martin v. Boise improperly handcuff local elected officials and are out of step with every other federal appellate court and state supreme court in the country. In the fiery words of the dissenting judges in Grants Pass:

With this decision, our Circuit’s jurisprudence now effectively guarantees a personal federal  constitutional “right” for individuals to camp or to sleep on sidewalks and in parks, playgrounds, and other public places in defiance of traditional health, safety, and welfare laws—a dubious holding premised on a fanciful interpretation of the Eighth Amendment. We are the first and only federal circuit to have divined such a strange and sweeping mandate from the Cruel and Unusual Punishments Clause. Our jurisprudence in this case is egregiously flawed and deeply damaging—at war with constitutional text, history, and tradition, and Supreme Court precedent.  

An Affront to Federalism

In our constitutional scheme, citizens are governed in most respects by elected officials at the state and local levels, where they are most accountable to the people. The powers of the federal government are limited and enumerated, and the federal judiciary was envisioned to be (per Federalist #78) the “least dangerous” branch, exercising “neither force nor will, but merely judgment.” Micromanaging the local affairs of 40 percent of the nation’s land mass is a subversion of federalism.

As the dissenters in Grants Pass explained:

The Cruel and Unusual Punishments Clause—a constitutional prohibition fundamentally centered on modes of punishment—is not a boundless remedy for all social and policy ills, including homelessness. It does not empower us to displace state and local decisionmakers with our own enlightened view of how to address a public crisis over which we can claim neither expertise nor authority, and it certainly does not authorize us to dictate municipal policy here. …

It is troubling that our Circuit—in inventing a new individual “right” unmoored from text, history, or tradition—has twisted the Eighth Amendment to displace the substantive authority of local officials to prohibit a species of antisocial conduct that was neither originally nor traditionally thought to warrant the protection of the Constitution, let alone immunity under the Cruel and Unusual Punishments Clause. …

Under our federal system, state and local leaders—not distant federal judges—are primarily entrusted with the power and duty to protect the common welfare of our towns, cities, and neighborhoods, and to ensure that our streets, squares, and sidewalks remain clean and safe.

These excerpts merely scratch the surface of the outrage conveyed by the Ninth Circuit dissenters. I have read many dissenting opinions over the years, but I recall none as vehement and persuasive as those in Grants Pass. The impassioned dissents in Martin v. Boise inexplicably failed to attract the Supreme Court’s attention in 2019. Grants Pass has provided the Court with the opportunity to correct that oversight.

 “Pro Bono” Litigation Run Amok

Martin v. Boise was not a home-grown litigation brought by well-intentioned, locally-based do-gooders in Boise. Rather, it was the product of a well-funded, national organization (the National Homelessness Law Center, formerly known as the National Law Center on Homelessness & Poverty) based in Washington, DC that believes “housing is a human right” and seeks to establish, via litigation, “a right to housing in the United States”—a phony “right” that nowhere appears in the Constitution. The radical activists at the National Homelessness Law Center partner with large law firms to utilize the vast resources of their so-called “pro bono” programs to overwhelm outmatched municipalities in a tsunami of litigation to invalidate local laws restricting public vagrancy—with the goal of forcing cities to provide public housing for all.

As I explained in The American Conservative, in the case of Martin v. Boise, the behemoth law firm Latham & Watkins (where I practiced for 30 years)

contributed over 7,000 hours of attorney time to defeat Boise’s attempt to maintain order, safety, and sanitation in its public spaces. … Not content to strip Boise and other cities of their municipal sovereignty, Latham’s crack legal team, playing the role of the Harlem Globetrotters running up the score against the hapless Washington Generals, coerced the city of Boise into what the firm gloated was a “momentous settlement” in which Boise agreed to spend $1.3 million for additional shelter spaces, pay $435,000 for the plaintiffs’ attorneys’ fees, and train its police not to arrest individuals or issue citations when no shelter space is available.  

The Martin v. Boise case was an affront to the public interest, but the instigators of the litigation were “thrilled” by the Ninth Circuit decision and “hailed” the outrageous result. Cause-oriented “pro bono” litigation such as Martin v. Boise is a disgraceful racket.

The Ninth Circuit’s Crisis

The Ninth Circuit has made a mess of cities throughout the western United States. As the dissenters in Grants Pass observed:

One need only walk through our neighborhoods—through the Tenderloin (San Francisco) or Skid Row (Los Angeles)—to know that our communities are fast coming undone. Tents crowding out sidewalks, needles flooding parks, and rubbish (and worse) marring public squares reflect a threat to the public welfare that should not be taken lightly.  

Forcing cities to allow dangerous, unhygienic encampments does not help the dysfunctional souls who choose to live there. The dissenters in Grants Pass commented on the misplaced empathy of homeless advocates: “The homeless disproportionately risk being the victims of violence, sexual assault, and drug-related death, and encampments’ unsanitary conditions have caused resurgences of plagues such as typhus, tuberculosis, and hepatitis-A.” Martin v. Boise has been an utter disaster. Mayors and governors in the western United States unanimously oppose the decision. Even uber-progressive California Governor Gavin Newsom has filed a “friend of the court” brief seeking reversal. The Ninth Circuit, the nation’s most-reversed appellate court, has created a crisis that only the Supreme Court can correct. If it does so, it may help put an end to the cruel and unusual punishment of America’s cities.

The post The “Cruel and Unusual Punishment” of America’s Cities appeared first on Law & Liberty.

Depending on the particular union contract and the size of the “bargaining unit” represented by the union, one or more (and sometimes many) union officers receive full pay and benefits from the taxpayers even though they spend 100 percent of their time performing union business—often directly contrary to the interest of the taxpayers forced to subsidize their efforts. For example, American Federation of Teachers President Randi Weingarten has been accruing pension benefits for decades from Brooklyn’s Clara Barton High School, based on her brief tenure long ago as a social studies teacher, even though she is a full-time union activist. Weingarten hasn’t been a working teacher in more than a quarter century, but the taxpayers are expected to pretend she is. This is the same as putting partisan political activists on the government payroll.

Release time is fairly common in private-sector union contracts, but businesses can spend their money in ways that government employers cannot. This was the landmark holding of Janus—distinguishing between private and state action while overruling Abood v. Detroit Board of Education (1977). The cost of release time—at the federal, state, and local levels—is enormous, with estimates as high as $1 billion annually.

The First Amendment proscription of “compelled speech” in favor of inherently political unions representing government workers, recognized Janus, is not the only possible legal objection to “release time,” which amounts to compelled taxpayer support for union activities. Most state constitutions prohibit the use of tax monies to benefit non-public purposes, which has spawned litigation in many states challenging release time provisions as an unconstitutional “gift” of taxpayer funds. The Goldwater Institute has taken the lead in filing legal challenges on this basis, bringing lawsuits in Arizona, New Jersey, and Texas. I happen to be involved in the pre-Janus Texas lawsuit, which will be heard by the Texas Supreme Court on February 21.

In September 2016, when the Texas lawsuit was filed in Travis County District Court, I was living in Austin. As a property owner and taxpayer, I had “standing” to object to a provision in the union contract—Article 10—between the city of Austin and Austin Firefighters Association, Local 975. Release time for Local 975 officials was costing Austin taxpayers, by some estimates, hundreds of thousands of dollars annually. The lawsuit was filed by lawyers working for the Goldwater Institute and the Texas Public Policy Foundation. Goldwater had previously litigated this issue in Arizona under that state’s constitution. Naïvely, I assumed the case would be disposed of quickly. One policy analyst deeply versed on the issue, affiliated with the Competitive Enterprise Institute, opined that the lawsuit “should be a slam dunk.”

After all, the Texas Constitution forbids the payment of “public money or thing of value in aid of, or to any individual, association or corporation whatsoever.” The Texas Supreme Court has interpreted that language to mean that payments to private parties must have a predominantly public purpose, be subject to adequate government control, and ensure a clear public benefit. Union release time fails on all counts. Unsupervised union officials pursue the selfish objectives of the union and its members, not those of the general public. A Democrat Texas Attorney General, Mark White, had issued an opinion in 1979 finding that a release time provision in a school district’s policy violated the state’s “gift clause.” Moreover, shortly after the lawsuit was filed, in October 2016, Texas Attorney General Ken Paxton intervened in the lawsuit on behalf of the challengers. In a constitutional challenge, the intervention of the Attorney General, representing the state of Texas, is a big deal.

Paxton declared that the union contract with Local 975 “violates the Texas Constitution anti-gift clause provisions that prohibit governments from giving taxpayer funds to private entities without a public purpose. Under the agreement, taxpayers are paying approximately three full-time firefighters each year to do nothing but engage in union business, including engaging in partisan political activity on behalf of the union and against the interests of taxpayers.” Paxton explained:

The city of Austin has abused its taxing power and with it the public trust. The city is siphoning money that should go to vital emergency services and redirecting it towards a labor union’s political activity. It is a basic tenet of democratic government that tax money be oriented towards a common good. An agreement that enriches a private organization at the cost of Austin residents’ health and safety cannot be allowed to stand.

More than seven years of laborious litigation later, with procedural delays, adverse results, interlocutory appeals at every stage of the case, and multiple reassignments to different trial judges, the “slam dunk” proved to be illusory. As explained below, the lawsuit turned into the legal equivalent of the Bataan Death March. What happened? In a word, politics.

In Texas, all judges are elected. Every trial court judge in bright-blue Travis County is a Democrat, many of whom are far left of center. During the pendency of the litigation, the once majority-Republican composition of the intermediate appellate court flipped to become completely Democrat. Elections have consequences, even in court. To left-wing activist judges, labor unions can do no wrong.

Not only did Local 975 prevail in a bench trial, but one politically ambitious trial judge, Travis County District Judge Amy Clark Meachum, scorched the earth against the plaintiffs. (Meachum, a Democrat, unsuccessfully ran against Texas Supreme Court Chief Justice Nathan Hecht, a Republican, in 2020.) The newly reformulated Third Court of Appeal, in a decision written by another aspiring SCOTX Justice, the Hon. Gisela D. Triana, upheld the dubious verdict. (Triana, a Democrat, unsuccessfully ran against Texas Supreme Court Justice Brett Busby, a Republican, in 2020.)

The trial court risibly ruled that the city of Austin’s grant of 5,600 hours a year of paid leave for the Local 975 officers to conduct union business did not violate the “no-gift” clause of the state constitution. The payment of hundreds of thousands of dollars to union officers benefited the public, the trial court concluded, by being part and parcel of an overall labor agreement that provided “fire safety and emergency services” and contributed to “labor peace.” Since Article 10 was “bargained for” and “agreed to” by the city during contract negotiations, “consideration” for the release time must be assumed to exist. Ergo, the city’s payments to Local 975 officers are not “gratuitous.”

This is a mere tautology. Just because the city of Austin improperly agreed to Article 10 doesn’t mean release time confers a public benefit. (It plainly doesn’t.) Otherwise, any “negotiated” gift of taxpayer funds would circumvent the explicit protections of the Texas Constitution.

Moreover, and shockingly, Judge Meachum imposed almost $200,000 in sanctions and attorneys’ fees against the plaintiffs under the Texas anti-SLAPP statute! “SLAPP” stands for Strategic Lawsuit Against Public Participation. The term was coined in the 1980s when powerful, well-funded organizations used lawsuits to silence citizens and consumers expressing their First Amendment rights. Many states, including Texas, passed laws penalizing such vindictive tactics. Like many well-intentioned laws, anti-SLAPP statutes can be abused—putty in the hands of activist judges.

Texas’s version of an anti-SLAPP statute is called the Texas Citizens Participation Act (TCPA). Texas courts have interpreted the purpose of the TCPA in these terms: “The TCPA protects citizens who petition or speak on matters of public concern from retaliatory lawsuits that seek to intimidate or silence them. … The TCPA’s purpose is to identify and summarily dispose of lawsuits designed only to chill First Amendment rights, not to dismiss meritorious lawsuits.” Commentators have stated that “the TCPA is arguably the broadest anti-SLAPP law in the nation.” Unfortunately, the TCPA “launched a new and very expensive motions practice, clogging the dockets of trial and appellate courts with expensive, complicated, and time-consuming litigation.” The unwieldy TCPA was weaponized in the Local 975 case, against the plaintiffs.

Judge Meachum ruled, in Through-the-Looking-Glass fashion, that two citizens challenging the city’s unconstitutional payment of taxpayer funds to a powerful labor organization violated the union’s rights under the TCPA! In other words, the attempt to protect the public treasury from illicit payments to union bosses infringed on the union’s “right of association.” This, of course, begs the question of whether the union had a right to receive thousands of hours of taxpayer-funded release time—the very subject of the lawsuit. Judge Meachum’s ruling, upheld by the Third Court of Appeal, makes it impossible for taxpayers to challenge release time and similar provisions in public-sector union contracts because doing so purportedly impairs the protected “right of association” of union members.

In a bizarre—and revealing—twist, after Local 975 sought and obtained dismissal as a defendant pursuant to the TCPA, the union intervened back into the lawsuit, belying the “intimidation” that the TCPA is intended to prevent.

The lawsuit did not challenge Local 975’s right to engage in collective bargaining per se, an activity authorized by Texas law. The objection was solely to Article 10—a specific provision of the union contract that required taxpayers to pay for the full-time activities of union officers engaged in lobbying, negotiations, grievance adjustment, and so forth. Taxpayers cannot be forced to pay for these inherently political activities. The logic of Janus, if not the precise holding, takes Article 10 out of the realm of “free association.” It is the compelled subsidy of political activity. Unions have a right to bargain collectively, but not to negotiate illegal terms in union contracts.

In an Orwellian flourish, the trial court cited some of my published writings and philosophical objections to public-sector unionism in support of the award of sanctions under the TCPA. So much for freedom of expression!

The opinion of the Third Court of Appeal rubber-stamped the trial court’s rulings in all respects. The case will be argued before the Texas Supreme Court on February 21. Local 975 is asking the Texas Supreme Court to not only ignore—or negate—the no-gift clause of the state constitution, but also to uphold a plainly nonsensical ruling under the participation-friendly TCPA that unionized government employees in Texas have legal rights that trump those of taxpayers seeking to vindicate the Texas Constitution. In the hands of woke judges in Austin, the protections of the TCPA have been turned into a weapon to be used against ordinary citizens. As the saying goes, “The wheels of justice turn slowly, but grind exceedingly fine.” Seven and a half years into the lawsuit, we know how slowly the wheels grind. How fine remains to be seen. Stay tuned.

The post Union Time on the Taxpayer Dime appeared first on Law & Liberty.

Critics refer to this as “forced arbitration” and claim that it constitutes a denial of due process—tyranny, even. Is this criticism fair? Without defending the abuses of Big Tech, this essay endeavors to explain the ubiquity of contractual arbitration clauses and their benefits vis-à-vis resolving disputes through lawsuits.

Let us begin with the basics. In the US, legal disputes involving civil (i.e., non-criminal) claims are presumptively resolved by the filing of a lawsuit in the appropriate court. Lawsuits generally require the assistance of a lawyer, are very expensive for both plaintiff (the person or entity bringing the claim) and defendant (the person or entity defending the claim), often take years to reach a decision, and—whether decided by a judge or jury—are subject to unpredictable results. The uncertainty is so great that the civil justice system is sometimes referred to as a “litigation lottery.” Because of the so-called American rule, dictating that each side bear its own attorneys’ fees in litigation, the winning party in a typical lawsuit is often a Pyrrhic victor.

As a result of these defects, lawsuit abuse has enriched lawyers, increased insurance premiums, inflated the price of certain products, inhibited the development of new drugs and products, and led corporate defendants to settle most employment and consumer lawsuits out of court—regardless of their merit (or lack thereof). Lawyers who specialize in filing lawsuits against deep-pocketed corporations—the “plaintiffs’ bar”—have become a powerful and well-funded special interest group, overwhelmingly supporting Democratic candidates and elected officials. For decades, conservatives have advocated reforms—usually referred to as “tort reform”—to make the litigation process more prompt, efficient, and predictable.

This topic has been the focus of leading center-right legal scholars such as the late Peter Huber and a mainstay of respected think tanks such as the Manhattan Institute. The literature cataloging the defects of our litigation system is vast. As a longtime proponent of civil justice reform, I have condemned abusive litigation in Law & Liberty and elsewhere. 

Resolving disputes through the civil justice system is so costly, disruptive, protracted, and uncertain that many litigants—whether corporations, government entities, or individuals—choose to utilize alternatives, such as mediation by a third party or arbitration by a retired judge or experienced lawyer. Arbitration is a streamlined mini-trial conducted in accordance with prescribed rules and procedures, before a neutral decision-maker. The parties can be represented by counsel, limited discovery is permitted, witnesses testify, and the arbitrator issues a written decision. Disputes are resolved within months, not years.

Alternatives to litigation such as arbitration are so popular that the American Arbitration Association (AAA) was founded in 1926, following the enactment of the Federal Arbitration Act in 1925. AAA reports that it has resolved over 500,000 cases so far this year, and has administered nearly eight million cases since 1926. These numbers are striking because AAA is just one of many administrators of arbitrations in the US. Arbitration has become a growth industry, with many practitioners and numerous providers.

Courts generally enforce arbitration clauses in contracts so long as the prescribed procedures are fair and ensure due process. In fact, virtually every union contract in America contains a provision requiring all disputes between employees and the employer to be resolved by final and binding arbitration. Contrary to the impression created by arbitration critics, in other words, arbitration was not concocted recently by Silicon Valley oligarchs; it has been around for a century, has received the blessing of Congress, is embraced by organized labor, and has been upheld by the US Supreme Court. Even critics of “forced arbitration” concede that “Arbitration, at least in theory, can be a simpler, more streamlined process that costs less for each party and brings the issue to a quick, efficient conclusion without dragging through the court system for months or even years.” 

Absent credible evidence of defects, the caveat “at least in theory” allows lazy critics to avoid comparing arbitration to its alternative—litigation. Yet the comparison is unavoidable. Arbitration clauses have become ubiquitous because lawsuits are a terrible way to resolve disputes, as anyone with experience as a civil litigant can attest. Juries are fickle, delays are endemic, discovery is intrusive and burdensome, and expenses are exorbitant. Arbitration clauses are now common in executive employment agreements, engagement letters with large law firms, in the securities industry (governing disputes between investors and stock brokers), and in many commercial agreements. If one carefully reviewed the written contracts one encounters in one’s daily life—leases, purchase agreements, credit card applications, cellphone contracts, and the like—one would probably find a standard-form arbitration clause.

There is a reason for the ubiquity of arbitration. Arbitration clauses abound because litigation is almost universally disfavored—even by law firms!—as a means of resolving disputes.

The door to the courthouse is always open to anyone who has not agreed to use arbitration instead. This is the heart of critics’ objection to arbitration clauses by “Big Business” and app-based service providers: critics claim that burying arbitration in the “terms and conditions”—which few people read before clicking “I agree”—somehow makes the arrangement “coerced.” This is an important point to explore, because the crux of the “coercion” issue is whether the agreement to arbitrate disputes was consensual or voluntary. In truth, consumers are generally not “forced” to do business with particular vendors or even to transact in particular industries. There are exceptions, such as emergency medical treatment, but for the most part, consumers retain—and frequently exercise—a significant degree of volition.

“Freedom of contract” cannot be ignored, or dismissed as a figment of “free market absolutism.” Even if consumers do not individually negotiate with a corporate seller, our ability to grant—or withhold—assent is critical to maintaining our autonomy. When we go to the grocery store, we decide which one, and then roam the aisles choosing which items to purchase. The same is true for shopping for cars, clothes, and other consumer goods. No one holds a gun to our head and dictates Safeway instead of Kroger, one brand over another, and so forth. We have a cornucopia of choices. The same is true for the products peddled by Big Tech. There are alternatives to Google, Apple, Uber, Amazon, and other vendors. Moreover, consumers always have the power to boycott specific companies (or entire industries) to which they object.

Participating in the world of social media—in which many non-essential services are offered without charge—is a choice. No one is “forced” to have an account on Facebook, TikTok, Instagram, or X (formerly known as Twitter), and many Americans do not. That most consumers elect not to read the fine print does not mean that the terms and conditions are “coerced” or unconscionable. Critics of arbitration clauses concede that “Yes, the consumer has the ability to click and find a copy of what he is agreeing to, but almost nobody does that because it simply doesn’t seem necessary.” (emphasis added.) Choosing not to read a contract before accepting it is careless and not grounds for sympathy—especially from libertarians and conservatives, who normally exalt individual responsibility.

Arbitration is not perfect, of course; nothing is. Some arbitrators, and arbitration providers, are better than others. The same is true with judges, juries, and court systems. Arbitration is best suited for individual claims, and has occasionally wrestled with accommodating class actions and other mass claims. Nevertheless, arbitration is flexible enough to handle construction disputes, complex cases, international disputes, and class claims, in addition to routine consumer or employment disputes. Critics admit that plaintiffs’ lawyers have managed to bring class claims against Uber and Samsung, notwithstanding arbitration clauses. Plaintiffs’ lawyers detest arbitration because—unlike in litigation—they cannot use the expense and unpredictability of a jury trial to leverage an extortionate pretrial settlement from the defendant.

Some Big Tech excesses will have to be addressed legislatively, such as eliminating Section 230 of the Communications Decency Act and regulating personal data collection, or through antitrust enforcement actions brought by state attorneys general or the Department of Justice. More congressional oversight is needed to prevent censorship of speech and suppression of news on social media platforms. But this can be accomplished without knee-capping the widespread use of arbitration clauses.

Defending America’s uniquely unsatisfactory litigation system—often resembling Dickens’ Bleak House—was once the province of the contingent-fee plaintiffs’ bar and its academic apologists. Now, ironically, some conservative pundits have entered the business-bashing fray. In considering critics’ vague complaints about arbitration, one must remember that courts of law do not have a monopoly on justice or due process. Banning arbitration clauses would not “democratize” dispute resolution or increase corporate accountability; it would merely erase decades of progress in finding sensible alternatives to our dysfunctional civil justice system. Diverting all disputes now being arbitrated into the court system would just congest crowded dockets even further.

Classical liberals should prefer private ordering to government-imposed solutions, and respect personal autonomy over statist command-and-control. A law categorically banning consensual arbitration clauses for consumers—tossing them “into the ash heap of history”—would interfere with private ordering and force all consumers into a problematic legal system that is less efficient and more prone to abuse than arbitration. Knee-jerk objections to every feature of Big Business are neither thoughtful nor persuasive, and cursory calls to ban arbitration clauses are both unconvincing and inconsistent with conservative principles.

The post Should Classical Liberals Favor Lawsuits Over Arbitration? appeared first on Law & Liberty.

Professors Nabors and Muller contend that Alaska’s stunted growth is primarily a function of excessive federal ownership of land there—rendering it a “state by law but a territory in fact”—rather than its remote location or other physical features. Loath as I am to quarrel with denizens of The Last Frontier, and scholars to boot, the question is a bit more complicated than the degree of federal ownership of land in a state. True, about 60 percent of Alaskan land is owned by the federal government, but other western states have similar—or even higher—numbers, without any apparent impairment of their economic development. For example, over 80 percent of Nevada is federally-owned, as is 63 percent of Utah, almost 62 percent of Idaho, nearly 40 percent of Arizona, and, remarkably, 45.4 percent of California. Nationwide, the federal government owns about 28 percent of all U.S. land.

Nabors and Muller also cite the production of oil in Alaska as a factor in the state’s hindered progress, without explaining why the 1901 Spindletop discovery in Texas did not impede development in the Lone Star State. Other forces are at work in Alaska, as I shall explain. Fundamentally, Alaska is not centrally located or easily accessible, and—to put it mildly—lacks a salubrious climate. Perhaps my “sourdough” reviewers, who deemed the first essay a “useful primer,” will be inspired to weigh in once again.

Alaska is flanked to the east by towering mountain ranges and extensive glacier fields, and the main body of the state is separated from the continental U.S.—more than a thousand miles to the south—by the Alexander Archipelago and the coast of British Columbia. The 1,100 islands in the 500-mile long Panhandle’s “Inside Passage” long bedeviled mariners due to fickle weather, poorly-charted reefs, tides fluctuating up to 20 feet, and dangerous currents through narrow straits. In 1918, the Canadian steamship Princess Sophia sank on the Vanderbilt Reef in Lynn Canal near Juneau, with the loss of all aboard—at least 353 passengers and crew. Alaskan waters have claimed many other ships. Eighteenth-century sailors such as Captain James Cook—after whom the Kenai Peninsula’s Cook Inlet is named—typically reached Alaska from what was then known as the Sandwich Islands, now Hawaii.

Jutting westward from Alaska’s mainland is the 1,250-mile-long chain of Aleutian Islands, where the climate is so frigid that U.S. forces fighting the invading Japanese in the often-forgotten Battle of Attu in May 1943 incurred more casualties due to weather than from enemy fire. Nabors and Muller may be correct that Anchorage—Alaska’s largest city—enjoys comparatively mild weather, but overall the state experiences extremes in temperature, snowfall, and rainfall. The northern part of Alaska extends well beyond the Arctic Circle. Much of the interior consists of frozen tundra. Temperatures in Fairbanks have dipped below minus 60 degrees Fahrenheit, making it the coldest large city in America. The wettest area of Alaska, Ketchikan, averages between 140 and 160 inches of rain per year. Avalanches are not uncommon in the state.

As a matter of geography and history, Alaska doesn’t resemble the Northwest Territories (Ohio, Indiana, Illinois, Michigan, and Wisconsin), to which Nabors and Muller compare Alaska. Those areas, contiguous to existing settlements, offered arable soil, navigable rivers, and eventually transportation via canals, roads, and railroads. Alaska enjoyed none of those features. There are, however, certain parallels between the settlement of Alaska and the “Lower 48.”

The United States acquired Alaska from Russia in 1867 for the sum of $7.2 million—roughly two cents an acre—a deal on par with the 1803 Louisiana Purchase. Secretary of State William H. Seward, then serving under President Andrew Johnson, consummated the purchase despite the opposition of Horace Greeley’s New York Tribune (which deemed the sale “Seward’s Icebox”), earning himself the enduring status as Founding Father of what would become, in 1959, the 49th state. March 31, Seward’s Day, is an Alaska statewide government holiday. A statue honoring Seward stands across from the state Capitol, his name adorns cities, roads, glaciers, lagoons, airports, and a peninsula near Nome. A U.S. Army outpost in Alaska, active from 1915 to 1940, was named Fort William H. Seward.

Unlike the settlement of the western frontier, there were fewer conflicts between the U.S. government and Native Alaskans than was the case with American Indian tribes. This was because there were fewer and more widely dispersed Native Alaskans (who were largely peaceful) than there were American Indians. By the late 1700s, a mere 15,000 Tlingit—the indigenous peoples living in the resource-rich Southeast Alaska—inhabited an area the size of Indiana. In Alaska, far fewer “homesteaders” encroached on Native lands. Trappers, fishermen, loggers, and miners made excursions to exploit resources but did not seek to displace the Native Alaskans altogether. Farming—the main draw for settlers “down below”—was not viable in Alaska due to the climate and topography. The rich fishery, especially the salmon run, continues to sustain the region.

Alaska has always been remote. Even today, Juneau, the state capital, is not accessible by roads. Travelers there depend entirely on planes and ships. Air travel in Alaska is perilous due to unpredictable weather and navigation hazards. Wiley Post, Will Rogers, House Majority Leader Hale Boggs, and former U.S. Sen. Ted Stevens all died in Alaska plane crashes. Southeast Alaska—an area larger than the state of Maine—has a current population of about 73,500. Scenic Juneau, the Panhandle’s largest city, was founded as a mining camp following the discovery of gold there in 1880. (The city’s year-round population is about 33,000.) A later gold rush in the Klondike (beginning in 1896) somewhat mirrors the California gold rush a half-century earlier, albeit on a smaller scale. For the most part, however, prospectors left Alaska when the gold ran out. Just as Lewis & Clark explored the Louisiana Purchase, major treks to survey Alaska were undertaken by Robert Kennicott and William Dall in 1865-68, and the E.H. Harriman expedition in 1899 (which included John Muir, co-founder of the Sierra Club).

Although Alaskan Natives were not granted U.S. citizenship until 1924, federal policy toward them was more enlightened than had been the case with American Indians. There was no Alaskan counterpart to the “Trail of Tears” or Wounded Knee. Beginning in 1884, when Alaska was considered a “district” under military control rather than a territory on track to statehood, federal law called for the education of school-age children without regard to race, overseen by Presbyterian missionary Sheldon Jackson. Later, federal law offered homestead grants to Native heads of household. Ultimately, as a result of the 1971 Alaska Native Claims Settlement Act, 40 million acres and $962.4 million were distributed to eligible Natives to resolve all aboriginal land claims—granting Alaskan Natives fee title to more land than was in the entire Indian reservation system in the Lower 48.

Nabors and Muller argue that the relatively late admission of Alaska as a state, after the nation had lost its proper understanding of, and respect for, “self-government by the states, and federalism,” has deprived the state of its full potential. But has federal influence in Alaska helped or harmed the state? In my estimation, the federal government’s considerable role has immeasurably benefited Alaska’s development—and arguably even made statehood possible.

As late as 1940, the entire population of Alaska was only 72,524. As Walter Borneman writes in Alaska: Saga of a Bold Land, “Nothing altered the face of Alaska more than the Second World War.” To prevent the Japanese from gaining a foothold in North America, the U.S. government invested heavily in military infrastructure in Alaska after Pearl Harbor: roads, tunnels, bridges, radio towers, phone lines, military bases, airfields, rail lines, and oil pipelines. All this work, on a scale comparable to building the Panama Canal, cost $500 million, making it (according to Borneman) “the most expensive construction project of World War II.”

With Russia looming just 55 miles across the Bering Strait, Alaska’s strategic importance only grew after the advent of the Cold War, and federal attention (and spending) continued accordingly. Alaska would never be the same. Although still remote, it was no longer abject wilderness. The state’s population increased through these initiatives, in addition to organic economic growth, earning Alaska statehood in 1959. Then, in 1968, came the fateful discovery of oil at Prudhoe Bay, followed—amidst litigation and controversy—by construction of a huge, 800-mile-long pipeline to the port at Valdez, employing tens of thousands of workers. The Alyeska pipeline was completed in 1977. At the time, it was the most expensive private construction project in U.S. history.

Everything is bigger in Alaska.

The federal government has created numerous—and extensive—national parks, preserves, forests, and wildlife refuges in Alaska, including Denali (formerly Mt. McKinley), Katmai, Kenai Fjords, and Glacier Bay. By area, Alaska holds more than half of America’s national park lands. Tourism has become one of Alaska’s key industries. Cruise ships exploring the Inner Passage account for over half of all tourist visits to Alaska. The most striking feature of the Panhandle is the 16.8 million-acre Tongass National Forest, the largest national forest in the United States and the largest temperate rain forest in the world. When one thinks of Alaska, one pictures snow-capped mountains, glaciers, dog sleds, and brown bears, but not rain forests. In old growth areas, the trees—many of them Sitka spruce—can be up to 800 years old. I have seen beautiful forests in California, Oregon, Idaho, Colorado, Utah, and Wyoming, but nothing compares to the majesty of the Tongass National Forest. 

Alaska is a treasure. If you want to see industry, visit Houston. If you want to see commerce, visit New York City. If you want to see technology, visit Silicon Valley. If you want to see a landscape ravaged by strip mining, visit West Virginia. But if you want to experience God’s glorious creation in its pristine state, head to the Last Frontier. Thankfully, modernity has not (yet) ruined the splendor of nature in Alaska.

The post Revisiting the Last Frontier appeared first on Law & Liberty.

In the United States, the public was surprisingly tolerant of drastic precautions deemed necessary by public health authorities (a topic I addressed last year), but at long last Americans’ patience is wearing thin; COVID fatigue has set in. In most areas, state and local “emergency” measures—including lockdowns and mask mandates—have been relaxed or eliminated altogether, and some state legislatures have moved to restrict the executive’s “emergency” powers in the future. Yet many federal dictates remain in place. State attorneys general have begun filing lawsuits challenging the legality of sweeping restrictions on liberty, particularly those imposed by administrative agencies without clear legislative authorization. The tide may be turning in favor of pre-COVID normality. A new lawsuit is aimed at mandatory face masks on airplanes and in airports.

On February 16, a Texas congresswoman, Beth Van Duyne (R-Irving), and the State of Texas filed a federal court lawsuit challenging the authority of the Centers for Disease Control and Prevention (CDC) to enforce mask mandates for passengers using public transportation and hubs in the U.S., including air travel and at airports. (The CDC’s mask mandate also includes rail travel, buses, ships, subways, taxicabs, and rideshares.) The lawsuit, similar in concept to the pending legal challenge to employer vaccine mandates by the Occupational Safety and Health Administration (OSHA), in which the vaccine mandate was stayed, alleges that the CDC lacks statutory authority to make or enforce regulations that amount to a blanket preventative measure.

In National Federation of Independent Business v. Department of Labor, the Supreme Court held, 6-3, that OSHA improperly issued a blanket vaccine mandate for 84 million employees. OSHA, which regulates occupational safety for employers with 100 or more employees, issued its vaccine mandate as an “emergency” measure rather than by formal rulemaking subject to notice and comment. While Congress granted OSHA the authority to issue temporary “emergency” rules in certain situations, that authority is extremely limited and had only been exercised nine times previously, and fully upheld only once. OSHA’s emergency rules must be based on a showing that “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.” In a per curiam opinion, the Court concluded that COVID-19 was not a workplace hazard, and that the “emergency” vaccine mandate likely exceeded OSHA’s statutory authority:

Administrative agencies are creatures of statute. They accordingly possess only the authority that Congress has provided…. Although COVID– 19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization…. It is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace.

Thus, the Court reinstated the stay pending further litigation in the courts of appeal. The reasoning of NFIB v. Department of Labor strongly suggests that COVID-19 does not warrant an agency’s assertion of authority beyond plain statutory limits. The Court concluded: “Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”

The CDC’s mask mandate for travelers using public transportation services or facilities was first issued in January 2021, in the form of an order from the U.S. Department of Health and Human Services, which oversees the CDC. The order remains in effect indefinitely, until “modified or rescinded,” and is enforceable by fines and criminal penalties. The CDC declined to adopt the mask mandate as an administrative regulation, subject to public notice and comment, on the ground that “emergency action” was justified by the need to prevent the transmission and spread of COVID-19.

The mask mandate applies to all travelers over the age of two regardless of vaccination status, infection status, or previous recovery from COVID-19, except for those unable to wear a mask due to disability or for workplace safety reasons. The order requires “conveyance operators” (such as airlines) and “operators of transportation hubs” (such as airports) to enforce the mask mandate.

The plaintiffs contend that the order is unlawful because the CDC lacks authority to issue blanket rules, citing several bases for its overbreadth: the order purports to be applicable to “people who may or may not carry infectious disease”; it was issued without a prior determination that the state health authorities are insufficient to prevent the spread of communicable diseases; and the order is not limited to preventative measures regarding property or cargo.

The complaint also alleges that the CDC’s order amounts to the exercise of legislative power by the executive branch in violation of the nondelegation doctrine. The lawsuit, filed in the Fort Worth Division of the Northern District of Texas, will be heard by Judge Reed O’Connor, an appointee of President George W. Bush who in 2018 ruled that Obamacare was unconstitutional, in a case brought by Texas and 17 other states. The Fifth Circuit upheld O’Connor’s decision, but in 2021 the Supreme Court in California v. Texas determined that the states lacked standing to bring the action. Texas liberals have expressed consternation at O’Connor’s willingness in prior lawsuits to rule against various Obama administration policies.

Representative Van Duyne, whose district encompasses Dallas-Fort Worth airport, alleges that she frequently travels on commercial flights as an elected member of Congress, is required to wear a mask while on flights and at airports, and would choose not to wear a mask if not required. Texas Attorney General Ken Paxton, suing on behalf of the State of Texas, stated that “President Biden cannot continue governing through executive edicts. Now is the time to strike down his administration’s air-travel mask mandate.” 

This lawsuit seemingly has all the ingredients required for a successful outcome: an issue very similar to one that prevailed in the Supreme Court (in the OSHA case), a favorable forum (in both the district court and the Fifth Circuit, one of the nation’s most conservative appellate courts), experienced and capable lawyers (at both the Texas Office of Attorney General and Texas Public Policy Foundation), a plaintiff with standing, and a political climate trending away from the hysteria that motivated many of the hasty, overbroad measures early in the pandemic.

The only factor that could derail this lawsuit would be the CDC’s rescission of the order, which would be a victory in itself. Pass the popcorn. The nanny state is on the run.

Disclosure: The Texas Public Policy Foundation is representing Rep. Van Duyne in this case. In an unrelated lawsuit, I was represented by TPPF and General Counsel Robert Henneke.

The post Unmasking the Nanny State appeared first on Law & Liberty.

This is precisely what my wife and I did while returning from a recent trip to Washington, D.C.; on the way back to Tennessee, we stopped at the homes of James Madison (Montpelier, in Orange, VA) and Thomas Jefferson (Monticello, in Charlottesville), hoping that they were safe from these baleful trends. Not long ago, when we toured The Hermitage, Andrew Jackson’s home near Nashville, we were pleased by the relative lack of left-wing revisionism. Alas, the same cannot be said of Montpelier (and to a lesser extent Monticello). The likely explanation is huge contributions from progressive philanthropist David Rubenstein, the multi-billionaire co-founder of private-equity powerhouse The Carlyle Group, that have given him great influence over the narratives these historic homes propound.

Rubenstein is sometimes described as “nonpartisan,” but this doesn’t mean he is politically (or ideologically) neutral—and neither are the contemporary historians who curate historical sites. In the 1970s Rubenstein was a Democratic staffer on Capitol Hill and a domestic policy advisor in the Carter Administration. His recent charitable contributions focus on “reparative” projects such as cataloging the names and lives of black people who were enslaved (at the Duke University rare book and manuscript library, which is named after Rubenstein), restoring the former slave quarters at Monticello (where the visitor center is named after Rubenstein), donating $10 million toward the building of the Smithsonian Institute’s National Museum of African American History and Culture (along with loaning the museum a rare copy of the Emancipation Proclamation signed by President Lincoln), and donating $10 million to the Montpelier Foundation, which oversees the home of our fourth President.

Rubenstein’s gift to Montpelier, now formally described as “A memorial to James Madison and the Enslaved Community,” illustrates the potential drawbacks of Rubenstein’s “patriotic philanthropy.” His gift to Montpelier is large enough to warrant the visitor center being named after him. This itself is not objectionable; donors’ names routinely adorn facilities they lavish with their money. The concern is influence over the content of the historical narrative. At Montpelier, the self-described “Rubenstein Initiative” financed

a five-year plan to refurnish and interpret the Montpelier mansion and reconstruct the South Yard, the enslaved community site adjacent to the mansion. Rubenstein’s gift has made it possible for Montpelier to offer visitors a more complete version of the story of American liberty, with its equal attention to furnishing and interpreting the home of one of the country’s foremost political thinkers and to telling the story of the enslaved community that lived and worked in his household. (Emphasis added.)

Madison, like many other Founding Fathers (such as George Washington and Thomas Jefferson), was a slave owner. Slavery is now properly regarded as repugnant and immoral, but in the eighteenth century was not so universally condemned. In tobacco-oriented colonies such as Virginia, it was fairly common. Looking back from our perspective in 2021, our view of Madison’s contributions as midwife to the Constitution, co-author of The Federalist Papers, architect of the Bill of Rights, Secretary of State under President Thomas Jefferson, and the fourth President of the United States should not ignore the fact that he was a slave owner. The institution of slavery in America is a fact. But is it fair to give “equal attention” to the enslaved community who lived and worked on the plantation at Montpelier? I would submit that this undue emphasis detracts from Madison’s enormous contributions to the nation’s Founding.

The refurbished grounds at Montpelier include a reconstruction of the South Yard, where approximately 300 slaves lived and worked from 1723 to 1844. The goal, according to the official visitor pamphlet, is “to examine the institution of slavery in the Founding Era, celebrate the humanity of Montpelier’s enslaved people, and confront the legacy of slavery in today’s world.” An exhibit called “The Mere Distinction of Colour” seeks to provide “a more complete, holistic American story”—one that explores “how the legacy of slavery impacts today’s conversations about race, identity, and human rights.” The National Trust for Historic Preservation, a private nonprofit unrelated to Rubenstein, which also supports Montpelier, praises the exhibit for explaining “how the legacy of slavery persists today—especially regarding its place in historic retellings.”  

I don’t wish to suggest that the institution of slavery is unworthy of study, or that a greater understanding of the lives of enslaved people wouldn’t enrich one’s knowledge of American history. However, at Montpelier, the omnipresent topic of slavery tends to diminish the extraordinary accomplishments and legacy of James Madison, which is what attracts most visitors to the former plantation. This outsized emphasis carries over to the presentations made by Montpelier’s docents. On the guided tour my wife and I took, the docent made frequent allusions to the slaves at Montpelier (under James Madison and his ancestors), going so far as to speculate that the three slaves convicted of fatally poisoning Madison’s grandfather, Ambrose, in 1732 were innocent—and even suggesting that Madison’s grandmother may have been to blame!

This is not the consensus view of historians who have studied the incident, but it shows the mischief that can result when historical sites become the subject of competing—even Manichean—narratives. The docent also speculated that some of the enslaved people who worked at Montpelier might have grown up to be doctors but for the evil of chattel slavery—food for thought, but hardly the type of jejune commentary visitors come to Madison’s home to hear. (The enslaved people, if freed, more likely would have ended up eking out a living as sharecroppers.)

Presumably in the interest of “inclusion,” the exhibits and commentary at Montpelier prominently feature Dolley Madison, even though she did not marry the 43-year-old long-time bachelor (17 years her senior) until 1794, long after the Constitution was drafted and ratified. Her contributions as First Lady during Madison’s two (tumultuous) terms as President (1809-1817)—which few historians regard as the apogee of his career—do not compare to Madison’s central role in the Founding. At the conclusion of the tour, the docent encouraged us to visit the exhibits at Montpelier (housed in the basement and in the South Yard) focusing on the “lingering institutional disparities that prevent Americans from realizing the ideals expressed in our founding documents,” and “interpretive content that will amplify the stories of Black lives at Montpelier in support of Black Lives Matter.” To top off the disturbing tour, Rubenstein’s namesake visitor center at Montpelier features a whole rack of leftist books, including Robin DiAngelo’s White Fragility, Ibram Kendi’s How to be An Antiracist, and many other titles wholly unrelated to James Madison. The addition of this “context” promotes the Left’s theme—reflected in the 1619 Project and elsewhere—that the nation was founded by overrated white men, and that America was built on the labor of enslaved Africans and their descendants. 

My overall impression of Montpelier is that the juxtaposition of slavery and the life of James Madison was intended to tarnish his remarkable achievements while simultaneously promoting the cause of identity politics. The message seemed to be that the Founding Fathers were not heroes, but flawed men who preached about liberty and equality but failed to live up to those principles. Or, even worse, that Madison’s remarkable contributions were no greater than the toil of the enslaved people at Montpelier. This may be familiar grist in a college history class, but did tourists travel from across the country for such a scolding? Historical sites such as Montpelier and Monticello would hold no interest to the general public, and would attract few visitors, except for the consequential deeds of the great statesmen who once lived there. Accordingly, the focus should remain on the former Presidents and their accomplishments.

The narrative at Monticello was not as heavy-handed as at Montpelier, although the docent began the tour by advising the group as a fact that Thomas Jefferson fathered the children of his enslaved domestic servant, Sally Hemings, even though historians such as Kevin Gutzman describe the much-debated DNA evidence as “not conclusive.” The foundation that maintains Monticello takes the view that “the issue is a settled historical matter.” Rubenstein’s first $10 million donation to Monticello was earmarked in part “to rebuild at least two log buildings on Mulberry Row, where slaves lived and worked, and restore the plantation’s original road scheme.” 

A second $10 million donation by Rubenstein “will provide ongoing support for the Mountaintop Project, a multi-year effort to restore Monticello as Jefferson knew it, and to tell the stories of the people—enslaved and free—who lived and worked on the 5,000 acre plantation.” Again, it is a well-known fact that the author of the Declaration of Independence was a slave owner, but does that have to overshadow Jefferson’s tremendous contributions to the Founding? The same preoccupation is apparent at the University of Virginia, established by Jefferson, which now hosts a memorial to the enslaved people who helped build it. Visitors to the iconic Rotunda, conceived by Jefferson as the heart of the “Academical Village” at the University, are now greeted by interpretive wall panels discussing the role of enslaved African Americans in the construction of the campus. Again, the role of enslaved people can and should be recognized, but in a place and manner that does not detract from Jefferson’s legacy.

Slavery happened in America, just as it had throughout recorded history, around the globe (and still exists in some places). It ended here following a bloody, costly Civil War, over 150 years ago. Must all of our Founding Fathers’ accomplishments be forever diminished—even negated—by a preoccupation with this unfortunate aspect of our history? The Founders’ ideals ultimately prevailed, a triumph that warrants celebration, not atonement. America is a great country, possibly the greatest of all time. Her story, fairly told, should instill a sense of pride, not grievance or self-hatred.  

History buffs should complete their bucket lists soon. Our past is a fleeting thing.

The post Is History for Sale? appeared first on Law & Liberty.

Critics charge that the ABA is essentially a trade association for America’s 1.3 million lawyers—a cartel. Befitting its role as advocate for this powerful interest group, the ABA claims to have “more than 3,500 entities supported by 900 staff and thousands of volunteers.” As a special interest group, this makes the ABA a behemoth. The ABA’s influence is projected in a variety of ways: lobbying, issue advocacy (through ABA task forces and committees, testimony and statements by ABA officials, and affiliated non-profit initiatives), controversial (and, critics contend, biased) evaluation and rating of judicial nominees, proposed ethical rules for attorneys, filing amicus briefs, policy positions adopted by the quasi-legislative House of Delegates, and honoring partisan figures with awards, as the ABA’s Commission on Women in the Profession did in 1992 when it recognized Anita Hill as a “Woman of Achievement” following her discredited charges against Justice Clarence Thomas at his Senate confirmation hearing.

The ABA is, of course, a voluntary organization and accordingly is free to take openly political positions with its annual budget of nearly $100 million. Without compulsory dues, the ABA is not constrained by the First Amendment pursuant to Janus v. AFSCME (2018), unlike unified state bar associations, whose political advocacy is being challenged in court. Large law firms, which account for a large portion of the ABA’s dues revenue, share many of the left-leaning attitudes promoted by the ABA, as reflected by the mega-firms’ increasingly “woke” pro bono activities. For the most part, the ABA’s political advocacy takes place in the open, where it can be monitored, challenged, and resisted. Alternative groups, such as the center-right Federalist Society, have proven very effective in combating liberal activism through intellectual debate.

Of far greater concern is the ABA’s influence over America’s law schools, by virtue of its unwarranted role—granted by state supreme courts—as accreditor of institutions whose graduates are permitted to sit for bar examinations necessary to practice law. No one would attend a law school if its graduates were not eligible to take the bar exam. Thus, the ABA (through its Section of Legal Education and Admissions to the Bar) is the de facto gatekeeper of the legal academy, determining which schools to accredit, and on what terms. Moreover, the U.S. Department of Education has given the ABA the power to determine which law schools are eligible for federal student loans, equally indispensable to attract students. In both of these respects, the cartel is effectively given monopoly control over legal education—a prescription for abuse.

The specific means used by the ABA to control law schools are its Standards and Rules of Procedure for Approval of Law Schools, the requirements of which go far beyond establishing minimum quality standards (for facilities, faculty/student ratios, and the like) and now dictate particular policies. For example, Standard 206 requires “diversity and inclusion” in the student body “with respect to gender, race, and ethnicity.” The ABA has interpreted this to mean that a school must relax meritocratic admissions policies to achieve an acceptable demographic mix—racial quotas, in other words.

In the early 2000s, the ABA bullied George Mason University’s law school, now known as Antonin Scalia Law School, into lowering its admission standards for minority students (especially African-Americans) in order to increase the percentage of minorities enrolled. The ABA threatened to revoke the law school’s accreditation if it did not submit. The ABA’s stated justification for this type of overreach (per its Interpretation 206-2) is that “the enrollment of a diverse student body promotes cross-cultural understanding, helps break down racial, ethnic, and gender stereotypes, and enables students to better understand persons of different backgrounds.” Thus, in the name of ostensibly improving the quality of law schools, the ABA requires them to lower their admission standards and enroll less-qualified (or even unqualified) students. Voila!

The ABA’s unchecked role in regulating legal education has gone largely unnoticed, at least in contrast to, say, highly-publicized judicial evaluations. But the heavy hand of the ABA is very consequential, even behind the scenes. Northwestern University law professor John McGinnis has written about the ABA’s accreditation standards (as well as the equally clandestine influence of the American Association of Law Schools), in the Wall Street Journal and elsewhere. A few years ago, I lifted the curtain on the ABA’s role in law school accreditation in a pair of articles here at Law & Liberty.

I noted in 2018 that “One reason that law schools are becoming monolithic social justice academies and ideological echo chambers is that the ABA—in its capacity as regulator—is pushing them to do so.” I added that “The ABA has too much control over accreditation standards that have little or nothing to do with maintaining the quality of legal education, and everything to do with promoting a leftist ideological agenda.” In particular, the ABA meddles in law school admissions, governance, and even curriculum. In a subsequent piece, I observed that the ABA

has gone far beyond its original mission of establishing minimum standards for legal education to protect the public…. The governance model that has led to this dysfunction must be replaced. The Department of Education should re-evaluate the ABA’s monopoly status as the accrediting organization for law schools, or at least insist that the ABA confine itself to legitimate quality control objectives—not social engineering. State supreme courts should likewise re-introduce competition into the process of determining eligibility to take the bar exam, or establish their own standards, or both. Legal education is broken; law schools need a new governance model.

My concerns went unheeded. Since 2018, things have only gotten worse. The ABA has recently proposed changes to its accreditation standards that make the organization’s social engineering even more intrusive. Outside of a few law professor blogs, however, the issue barely registered in the public commentariat. It warrants far greater attention. The ABA’s proposed changes dramatically extend the “diversity and inclusion” requirement of Standard 206 for both students and faculty. Proposed Standard 206(a) states that:

A law school shall provide:

(1) Full opportunities for the study of law and entry into the profession by members of underrepresented groups, particularly those related to race, color, ethnicity, religion, national origin, gender, gender identity or expression, sexual orientation, age, disability, and military status; and

(2) An environment that is inclusive and equitable with respect to race, color, ethnicity, religion, national origin, gender, gender identity or expression, sexual orientation, age, disability, and military status. (Emphasis added.)

Proposed Standard 206(b) states that:

A law school shall take effective actions that, in their totality, demonstrate progress in

(1) Diversifying the student body, faculty, and staff; and

(2) Creating an inclusive and equitable environment for students, faculty, and staff. (Emphasis added.)

Faculty critics have charged that the ABA’s proposed changes are “ill-supported by evidence.” Moreover, many of the revised terms are imprecise and susceptible of subjective application, and the ABA’s prolix “interpretations,” which impose on schools quota-oriented data collection obligations, vague affirmative action duties (applicable to both students and faculty), and the requirement of “diversity, equity, and inclusion training,” demand ideological conformity and possibly violate the faculty’s academic freedom.

The ABA’s interpretation of Proposed Standard 206 repeats several times the Orwellian mantra “The determination of a law school’s satisfaction of such obligations is based on the totality of the law school’s actions and results achieved.” Determining compliance (or non-compliance), in other words, is within the sole and unfettered discretion of the ABA—an invitation for capricious decision-making. Faculty critics have condemned the ABA’s proposed changes as “bizarre,” “dubious,” “an abuse of power,” and calculated to mandate unlawful conduct by law schools, provoking litigation.

This is just the tip of the iceberg. The ABA also seeks to require (in Proposed Standard 303(c)) law school curricula to include “training and education to law students on bias, cross-cultural competency, and racism: (1) at the start of the program of legal education, and (2) at least once again before graduation.” Here also, the ABA’s interpretation does not define “cross-cultural competency,” preferring to leave the determination of compliance entirely up to the overseers at the ABA: “[L]aw schools must demonstrate that all law students are required to participate in a substantial activity designed to reinforce the skill of cultural competency and their obligation as future lawyers to work to eliminate racism in the legal profession.” (Emphasis added.) Faculty critics charge that this constitutes an “unwarranted intrusion” into course content and an “overreach.”

Indeed, it is—and has been for some time. The ABA’s proposed changes do not stop there, but surely the reader gets the drift. Like other leftist initiatives currently underway, the ABA’s proposed revisions are simultaneously grandiose, extreme, and hubristic. Will the ABA’s long march continue, or will—at long last—the beleaguered defenders manning the ramparts of the legal academy repel further intrusion? Stay tuned.

The post The ABA’s Long March Continues appeared first on Law & Liberty.

In the guise of fighting a public health emergency, the public has endured a de facto national quarantine (even for healthy adults), business closures (many of them likely to be permanent), the shuttering of schools, bans on worship services, social distancing mandates, and of course the now-ubiquitous—but previously unheard of—command to wear face masks in public.  

Dr. Anthony Fauci, who as Director of the National Institute of Allergy and Infectious Diseases serves as the nation’s COVID czar, began the flip-flopping in early 2020, when he mandated the wearing of masks, after previously opining on the news show 60 Minutes that “There’s no reason to be walking around with a mask.”  In fact, Fauci went even further, suggesting that mask-wearing could be counter-productive for the general public. Fauci’s early advice was consistent with the then-prevailing “scientific consensus,” as reflected by the World Health Organization (WHO) and Centers for Disease Control and Prevention (CDC), both of which recommended mask-wearing for healthy people only when taking care of those who are sick or suspected of having the virus. 

The science abruptly changed to dictate mask-wearing by everyone, everywhere, at least until a vaccine could be developed. Fauci even suggested that the public would be safer wearing two masks in public (contrary to CDC guidelines), before quickly reversing himself and admitting that “There’s no data that indicates that that is going to make a difference.”

A similar reversal occurred in March 2020, when authorities decreed a “temporary” ban on large public gatherings in order to avoid overwhelming health care facilities with gravely infected patients. Under the rubric of “flattening the curve,” to avoid an impending tsunami of hospital admissions, an unprecedented shutdown of the nation’s economy was ordered. Even though hospitals never overflowed—indeed, emergency facilities in New York went largely unused–the initial two weeks have stretched into 12 months. To varying degrees across the country, effects of the shutdown persist despite the manifest misconception of the original rationale for the stay-at-home orders, exacting an incalculable toll on the American economy and millions of schoolchildren deprived of class instruction.

Make no mistake: COVID-19 is a deadly disease that has taken nearly 600,000 lives—albeit largely limited to a specific, well-defined demographic. No one disputes that the pandemic was a serious public health problem. With the benefit of hindsight, however, it has become clear to many Americans that the public health establishment completely mishandled the COVID-19 pandemic. The overwhelming majority of those who were infected did not become seriously ill; many did not even know they were infected, or recovered quickly after experiencing mild symptoms.

The risk of mortality for healthy people under the age of 60 is less than one percent and for children is essentially zero. The priority should have been to isolate only vulnerable populations—the elderly and those with certain underlying medical conditions such as obesity, diabetes, asthma, or chronic lung disease—rather than quarantine everyone. States that took such an approach, such as Florida, have fared well in comparison with those taking more draconian measures, such as New York, California, and Michigan. As I wrote in Law & Liberty in June 2020, after government “experts” threw millions of Americans out of work, “Congress hurriedly enacted a multi-trillion-dollar stimulus package, as casually as one might order a pizza.” This was a public policy fiasco on par with the New Deal, the Vietnam War, and the United States invasion of Afghanistan—other failed misadventures that abused the public’s trust in presumed federal expertise.

But the COVID-19 debacle is not yet over.  Fauci refuses to give up the influence he has held for over a year. Requiring or recommending the public wear masks—even at outdoor events and even after being fully-vaccinated—has moved beyond any semblance of “science,” and is now purely an instrument of social control. As of this writing, vaccines are universally available throughout the U.S. Almost 40 percent of American adults have been fully vaccinated, more than half of Americans have received at least a first dose, and about 2.7 million additional shots are being administered daily. The vaccines developed in record time pursuant to Operation Warp Speed produce immunity to COVID-19 at a rate as high as 95 percent. The unknown—but undoubtedly large—percentage of Americans who have already been infected by the virus and consequently have developed antibodies are effectively immune from re-infection. Thus, the immune portion of the population is likely approaching two-thirds.

By all accounts, transmission of the COVID-19 virus is airborne and most readily spread in close quarters indoors. In the outdoors, natural ventilation, ultraviolet radiation (sunlight), humidity, and heat make infection almost impossible. Studies don’t support wearing masks outdoors. According to the Wall Street Journal, “Documented cases of outdoor Covid-19 transmission are rare. A study in Wuhan, China, where the virus originated, used careful contact tracing and found that only one of 7,324 infection events was linked to outdoor transmission.” This is because COVID-19 “droplets are rapidly dissipated in the air and deactivated by ultraviolet radiation, heat and humidity.”

Accordingly, experts conclude that, based on the science, “you don’t need to wear a mask outdoors….Discarding pointless practices like outdoor masking and obsessive ‘hygiene theater’ would make the continuing necessary precautions, including indoor masking, easier to accept.” Nonetheless, the COVID cult, led by the masked-even-when- on-a-Zoom-call President Joe Biden, perpetuates the fiction that, in the words of a CDC publication entitled How to Protect Yourself & Others, “everyone 2 years and older should wear masks in public.” Even though WHO guidelines dispense with the mask requirement outdoors so long as a three-foot distance from others is maintained, the CDC calls for masking and maintaining a six-foot distance, even for people who are fully vaccinated. This is obedience for obedience’s sake.

Experts complain that the latest CDC guidance is “confusing because it lists too many different stipulations and it’s hard to keep track of all of them.” For example, the CDC publication entitled Choosing Safer Activities recommends that even fully-vaccinated people should wear masks outdoors if they “attend a crowded, outdoor event, like a live performance, parade, or sports event.” John Hinderaker of Power Line asks “If you have been vaccinated, it is just about impossible for you to either catch or transmit covid. So why on God’s green earth do you have to wear a mask at an outdoor sports event?” There is no legitimate answer, of course. The only possible explanation, Hinderaker suggests, is that

There is no argument for wearing masks (which don’t do any good in any event, the case data show) if you have been vaccinated, except one: the harpies can’t tell by looking whether a person has been vaccinated or not. So if vaccinated people take their masks off, the unvaccinated will swiftly follow, and the harpies won’t know whom to shame. That’s the only rationale.

For fully-vaccinated people (who are approaching a majority of Americans), the indoor mask rules make no greater sense. The latest CDC guidance suggests that masks should be worn indoors, even by the  fully-vaccinated, if visiting “an uncrowded, indoor shopping center or museum,” going to the movies at an indoor theatre, attending “a full-capacity worship service,” singing “in an indoor chorus,” eating “at an indoor restaurant or bar,” or participating “in an indoor, high intensity exercise class.” These guidelines are nonsensical, at least for the vaccinated public.

For many long months, Americans were told that draconian precautions—contact tracing, social distancing, obsessive hygiene measures, and mask wearing—were required until a vaccine was available. No sooner did the vaccine arrive, and the goalposts were moved. Even with the vaccine, mask wearing (indoors and outdoors!) must continue, the so-called experts proclaim. This is absurd. Americans have been bullied, terrorized with apocalyptic claims of doom, forced to stay home, denied their constitutional right to worship, and in many cases deprived of their livelihoods. Enough is enough. Those who obeyed the commands and got vaccinated should be allowed to return to a normal, pre-pandemic life. Those who choose not to take the universally available vaccine should be allowed to take the risk and live with the potential consequences. The vaccinated majority should not be beholden to the unvaccinated minority.

Benjamin Franklin famously remarked that “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.” There is, indeed, an inevitable tradeoff between security and freedom. Freedom entails choice—and risk. The price of security is often submission to external control. COVID-19 was not our first infectious disease outbreak, and it won’t be the last. Public health authorities need to stick to science and avoid alarmism and social control for its own sake. Extreme “social distancing” or “sheltering in place” used to be regarded as a form of mental illness—agoraphobia. Now it is recommended by public health experts. For too long, Americans have meekly obeyed. What happened to the freedom-loving patriots who used to inhabit these United States? 

John Hinderaker calls for Americans to begin disobeying our feckless public health czars. He says “We need people to say, I’m taking this damn mask off. And if a harpy complains, to tell her or him to get stuffed. Seriously. The time has come.” I fully concur. The time for patience and forbearance is over. Let freedom ring.

The post Obedience Fatigue appeared first on Law & Liberty.