#331 Musings Beyond the Bunker (Thursday April 21)
Good morning,
Another Thursday and another potpourri of reader comments and random thoughts…
WHY AREN’T WE DOING THINGS PIECEMEAL?
David Lash agrees with the notion that President Biden has erred in not pursuing programs on a piecemeal basis: “I just don’t understand why Build Back Better isn’t broken down into a half-dozen of its best parts (and there are some very good parts) and presented individually to Congress in separate bills. Makes no sense to me. Can you explain the rationale being used?”
David, I cannot explain trying to push all this administrations goals within a bloated bill. If the bill were broken into pieces, it is easy to see coalitions based upon the constituent parts. For instance, some of the “anti-coal” pieces of the Build Back Better could have been taken out of this bill and Joe Manchin might have signed on a long time ago. Save the rest for another bill. Indeed, there are some aspects of the voting rights act that appeal to the Republicans. Why doesn’t the administration fashion a bill with the unobjectionable proposals, get a victory and follow up later with the more contentious proposals.
History provides a clear example of something that we think was one big proposal—the New Deal—that actually was a series of bills. There were some 76 laws passed in the “First New Deal” (primarily banking and securities related) and the “Second New Deal” (much more focused on social programs). By cobbling together different coalitions for the various different laws, things actually happened.
MASK MANDATES AND THE SEPARATION OF POWERS
I left Los Angeles on Sunday for a quick flight to Salt Lake City. In the airport and on the short flight, everyone wore a mask. No one appeared in any sort of pain or extremis engaging in this small act of collective safety and concern for one another. On Tuesday, when I returned, less than 5% of the people in the airport and virtually no one else on the plane but myself was wearing a mask. And then the above scene of LAX upon my arrival. What happened?
What happened was the opinion of a single federal judge, one of the youngest ever appointed to the bench, who decided that the CDC was overreaching with its mask mandate. The judge determined—with but a copy of the statute, a dictionary, and her desire to narrowly construe the law, that the enabling legislation didn’t give the CDC sufficient authority to enact a mask mandate. She cited as authority the notion that U.S. code provision allowed the CDC to regulate matters of improving sanitation but did not extend to making conditions more sanitary (through reducing the communication of disease from one person to another through the air). This is, of course, sophistry at its best. Apparently, in order to fit within the judge’s philosophical bent to avoid granting broad regulatory power, the CDC can mandate disinfecting surfaces but not disinfecting air.
Whether lifting the mask mandate was the right decision is one that should have been left to experts. Perhaps it will prove not to increase the spread of the disease. But that’s not the primary issue here; the impact of the judge’s ruling is greater than whether we force people on two hour flights to protect their fellow passengers.
This is just one example of how conservative federal judges are seeking to impose limitations on what agencies can and cannot do. Their view, broadly speaking, is that the legislature is the voice of the people. If the legislature wants something to be law, it needs to be incorporated in the legislation with precision. Their argument is that agencies are not elected by the people and ought not have the power to “legislate” regulation. Only the legislature can legislate. That said, they fail to see the irony in judges exercising their judicial authority to legislate through tortured readings of enabling legislation. This judge has determined what fits within the ambit of the legislation—namely increasing sanitation and reducing the spread of disease from outside this country and between states does not extend to actually restricting people’s actions to save lives.
This may be interesting intellectual exercise but a silly way in which to run a government—and certainly not a way to protect people from themselves and each other. It is well established that the legislature passes laws that must be reduced to regulation and implementation by bureaucrats. Yes, I know that many among the right see these people as modern-day mandarins and “deep state” operatives. But it is impossible for a legislature to be sufficiently expert to cover every possible scenario when legislation is enacted. There must be some reasonable discretion granted to agencies, particularly those charged with protecting the public health, to implement the intent of the law.
It seems to me a far better judicial doctrine would be to borrow from the reasonable person principle from torts. In short, a duty is deemed violated in a case of negligence if the person being charged with that breach did not behave in the manner one might expect from a “reasonable person” in similar circumstances.
The application of this doctrine would be to determine whether an agency or instrumentality of the federal government is acting appropriately in applying the intent of the statute, based upon what a reasonable person might conclude Congress would have decided at the time the broad legislation was adopted. This seems a far better standard than a lifetime appointee, chosen along a party-line vote, making decisions that can affect public health. What is going to happen the next time there is a public health emergency or another pandemic? Must the CDC and other agencies stand back and await the glacially slow and political process of the legislature acting?
How would this play out? One reasonably can reach the conclusion that, if Congress considered whether a global pandemic were to arise, it would be covered by the powers granted to the CDC to act in our collective health’s best interest to attempt to thwart the airborne transmission of the disease.
Instead, we are left with a single judge, who may or may not have her ruling overturned, deciding that the CDC doesn’t possess the power to mandate masks. In so doing, the judge is herself legislating what Congress intended and applying her narrow academic conclusion that the CDC would have the requisite power without a specific grant of a power.
There are those who will suggest we are well past the “mask stage” of this pandemic. Perhaps they are right. Others will suggest that it is a question of personal preference and constitutional rights whether one chooses to wear a mask in crowded places of public transport. But what these people neglect to realize is the value in relying upon experts with knowledge and data to make these determinations. We are, after all, not very good at making health decisions for ourselves (given the ubiquity of obesity, excess consumption of sugar, continued smoking, and other obvious ways we can help our own health). How can we expect a group of poor decision-makers to act individually, opining upon and acting upon, their personal beliefs in protecting their own health and that of their fellow citizens?
The law, I fear, is viewed by many not as a tool that is there to protect us and empower those charged with our safety to make reasonable determinations on our behalf. Instead, we have ideologues trying to make an academic point in the extreme—that only legislatures can do anything that might somehow constrain on right to do whatever we choose. There ultimately will be no room for reasonable bureaucrats to act in our collective best interest in areas of public health, climate change, and public safety.
AS POLITICS GOES
And, as politics goes, appealing the judge’s ruling is a losing argument for the administration. They will be perceived as spoilsports if they challenge the ruling and try to reinstitute a mandate. Is it better just to watch to see if the lifting of the mandate either will prove benign or we will be faced with a rise in hospitalizations and deaths that might force the administration’s hand? Logical or not, people are “over” the idea of masks—at least for now.
SORRY FOR ALL THE TYPOS
Yesterday’s Musings on the contentiousness between those with faith and those without was littered with typos. I don’t have an editor (other than myself) and it showed yesterday. Note to self: Don’t ever revise something quickly on an airplane.
Have a great day,
Glenn
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