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Category Archives: Fifth Amendment

Wheres the Twenty-Fifth Amendment When We Need It? – LA Progressive

Posted: March 24, 2020 at 5:31 am

In March 13, in the midst of a deadly pandemic, President Donald Trump was asked if he took responsibility for the nations lack of preparedness. His reply: I dont take responsibility at all.

Where are impeachment and the Twenty-Fifth Amendmentthe two mechanisms provided by the Constitution for removing an unfit Presidentwhen we need them the most, as we do right now?

Perhaps the most loathsome of all of Trumps lies was his oft-repeated claimthat test kits for the virus were widely available to anyone who desired one.

On February 5, Trump wasacquittedin his impeachment trial as a result of GOP cronyism and cowardice, so that door is shut. And theTwenty-Fifth Amendment, which requires action by the Vice President and a majority of the Cabinet or Congress to initiate removal, is a non-starter, given the obsequiousness of Mike Pence and the intractable corruption of Senate Republicans.

Meanwhile, just when you thought Trump couldnt get any crazier or more incompetent in his handling of the coronavirus crisis, he took another wild leap into bizarro land with comments at Tuesdays White House press conference, and in remarks he uttered the same day on Twitter.

The press conference was called to update the public on the health emergency and to announce the administrations stimulus package to revive the economy, which is now likely inrecession. In anexchange with reporters, Trump was asked by NBCs Kristen Welker whether he had changed his once-dismissive attitude about the perils posed by the virus. Trump responded:

I have seen that where people actually liked [my tone during a press conference held the day before], but I didnt feel different. Ive always known this is a realthis is a pandemic. I felt it was a pandemic long before it was called a pandemic. . . . Ive always viewed it as very serious.

During the conference, Trump alsopraisedDemocratic New York Governor Andrew Cuomo, with whom he has often clashed over other kinds of policies and programs, stating that he and Cuomo had a good talk this morning, and that he and the governor were both doing a really good job.

But Trump delivered a very different message to his millions of social media followers just a few hours earlier, upbraiding Cuomo in aracist tweet: Cuomo wants all states to be treated the same. But all states arent the same. Some are being hit hard by the Chinese Virus, some are being hit practically not at all. New York is a very big hotspot, West Virginia has, thus far, zero cases. Andrew, keep politics out of it . . .

By any rational standard, Trumps comments qualify as either some of the most egregious political lies of the twenty-first century or as yet another indication that he suffers from a personality disorderthat allows him to dissociate from reality and disclaim responsibility for any of his actions. Instead, he blames others for any harm to the public, shocks to the stock market, or damage to the wider economy.

In truth, of course, the coronavirus isnt a Chinese disease, even if the initial outbreak occurred in Chinas Hubei Province and its capital city, Wuhan. The virus has since spread across the globe, fueled by community transmission, and is now firmly entrenched in the United States.

All Americans, regardless of race or ethnicity, are equally susceptible to the disease and equally capable of infecting others. And late Tuesday, belying Trumps tweet, West Virginiareportedits first coronavirus case. The disease is now in every state in the nation.

If anything, there is even less truth in Trumps press conference claim that he anticipated the pandemic before anyone else. To the contrary, Trumpdownplayedthe severity of the virus from the very outset, erroneously comparing it to the flu (which is far less lethal), denouncing media coverage of the malady as a hoax, andpredictingthat one dayits like a miracleit will disappear.

In arecent column,The New York Timess David Leonhardt catalogued many of Trumps most misleading statements. Heres a taste:

President Trump made his first public comments about the coronavirus on Jan. 22, in a television interview from Davos with CNBCs Joe Kernen. The first American case had been announced the day before, and Kernen asked Trump, Are there worries about a pandemic at this point?

The President responded: No. Not at all. And we have it totally under control. Its one person coming in from China, and we have it under control. Its going to be just fine.

By this point, the seriousness of the virus was becoming clearer. It had spread from China to four other countries. China was starting to take drastic measures and was on the verge of closing off the city of Wuhan.

In the weeks that followed, Trump faced a series of choices. He could have taken aggressive measures to slow the spread of the virus. He could have insisted that the United States ramp up efforts to produce test kits. He could have emphasized the risks that the virus presented and urged Americans to take precautions if they had reason to believe they were sick. He could have used the powers of the presidency to reduce the number of people who would ultimately get sick.

He did none of those things.

Perhaps the most loathsome of all of Trumps lies was his oft-repeated claim that test kits for the virus were widely available to anyone who desired one.

In fact, as other countries rolled out thousands of testing kits, the Centers for Disease Controlwas slow to act, and resisted using tests produced by the World Health Organization. Kits manufactured in the United States are only now being provided on a large scale to hospitals around the country, but at a pace that continues to lag that achieved by many other nations.

The paucity of kits prevented the United States from enacting early and effective containment initiatives, which in turn has resulted in undercounts of the U.S. infection rate, and no doubt will ultimately lead to a higher overall incidence of mortality from the illness.

If the first duty of a President is to level with the American people and tell the truth in times of crisis, Trump has been a colossal failure. Whether that failure is due to ineptitude, malfeasance, a psychological impairment or some combination of factors, the country needs to remove him from office.

In the absence of impeachment and the fortitude to invoke the Twenty-Fifth Amendment, we are left with one alternativeto oust him next November. Thats provided, of course, that the coronavirus doesnt arm Trump with a pretext to suspend the election and declare martial law.

Think that couldnt happen? I would have thought so, too, but that was before the virus shut down life as we knew it in America.

Bill BlumThe Progressive

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Wheres the Twenty-Fifth Amendment When We Need It? - LA Progressive

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Does the Takings Clause Require Compensation for Coronavirus Shutdowns? – Reason

Posted: at 5:31 am

In general, I am a big supporter of strengthening protection for private property under the Takings Clause, and have written many works arguing the case for doing so. In this situation, however, it is unlikely that the Clause mandates compensation in all but a few cases. At the very least, there is no such requirement in current Supreme Court precedent, andon this pointthat precedent is unlikely to change in the near future.

While court decisions have long recognized that the Takings Clause requires compensation in at least some situations where the government restricts property rights without actually seizing the property in question, they have also long held that many exercises of the "police power"government's authority to protect public health and safetydo not qualify as takings. The most famous case of this type is the Supreme Court's decision in Miller v. Schoene (1928), where the Court ruled compensation is not required in a case where a state law required destruction of the owner's cedar trees in order to protect other trees in the area from the spread of a disease. Protecting large numbers of people from the spread of a disease is, of course, a much stronger police power imperative than protecting apple trees. This description is based on the conventional interpretation of Miller, which I have some reservations about. But, for present purposes, what matters is that the conventional view is the one embraced by courts.

Perhaps more relevantly, large numbers of businesses were forcibly shuttered by state and local governments during the influenza epidemic of 1918-19, the last time the US faced a public health crisis comparable in scale to this one. To my knowledge, none of them were ever held to be takings requiring compensation.

Not all exercises of the police power are exempt from the requirements of the Takings Clause. For example, a federal court recently ruled that compensation was owed in a case where the government deliberately flooded some property owners' land in order to protect others. I and a number of other commentators have been highly critical of another recent decision where an appellate court ruled that the government need not pay compensation in a case where the police virtually destroyed an innocent owner's home in order to smoke out a suspected shoplifter who had holed up inside.

But these types of cases differ from epidemic shutdowns in the important sense that they are not situations where the owner's use of the land in and of itself poses any threat to public health. Rather, the government decides to destroy a perfectly innocent property right in order to protect the public against threats emanating from elsewhere. By contrast, the continued operation of businesses that risk spreading a deadly disease during an epidemic do indeed pose a threat. The Takings Clause generally does not provide compensation in such cases. Doing so would risk creating a serious moral hazard by incentivizing owners to engage in dangerous uses of their property in order to get paid to stop.

Some state courts have interpreted their state constitutional takings clauses as requiring compensation when a local government changes zoning rules to forbid previously lawful businesses. But I doubt that these "amortization" precedents require compensation in cases like the Covid-19 shutdowns. Among other differences, amortization cases involve permanent rather than "merely" temporary bans on the enterprises in question.

Assume, for the sake of argument, that the plaintiffs in one of these cases somehow get past the police power issue. Even then, their prospects are likely to be bleak. Current Supreme Court precedent holds that only a few types of government actions qualify as automatic "per se" takings: most notably permanent physical occupation of property and regulations that completely destroy all of the property's economic value. Most other regulations are evaluated under the three factor test laid out in the 1978 Penn Central decision, which requires courts to consider 1) the economic impact of the regulation in question, 2) whether and to what extent, the owner suffered the loss of "investment-backed expectations," and 3) the "character" of the government action (if the government physically occupied or damaged the property in question, it is more likely to be a taking).

To make a long story short, the Penn Central test is often unclear and confusing, but is usually applied in ways that tilt the outcome in favor of the government. In this case, the fact that the shutdowns are "only" temporary and that there is no physical invasion of the owners' land are likely to be sufficient to enable the state to win most caseseven if the police power issue is set aside.

There might be some unusual cases where the impact of the government's actions is so severe that it does effectively destroy the entire economic value of a given piece of land, and therefore could be a per se taking. But such cases are likely to be rare, sinceagainthe restrictions are temporary and the owner couldin theorystill use the property for other purposes.

I am one of many takings scholars who have argued that the Penn Central test is a mess and that it should be replaced by something clearer and more protective of property owners' rights. So far, however, we have failed to persuade a majority of Supreme Court justices to agree with us. And that is unlikely to change in the near future, except in incrementally. If the justices do overrule Penn Central or revise its rules to provide stronger protection for property owners, a Coronavirus shutdown case strikes me as a highly unlikely vehicle for such a shift.

That gets me to final reason why courts are unlikely to rule that Coronavirus shutdowns qualify as takings: no judge will want to be seen as impeding an effort to save large numbers of lives in the midst of a grave menace to public health. As a general rule, I am not a "legal realist"a person who believes court decisions are primarily the product of judges' personal values and political commitments. But it would be naive to imagine that such commitments never play a role. And few if any judges want to be remembered for having endangered large numbers of lives. That might not matter if the legal arguments were overwhelmingly in favor of the plaintiffs. But, as we have seen, they are at best a stretchat least under current doctrine.

To be sure, a ruling that the government must pay compensation to owners of shuttered properties would not actually prevent the shutdowns, as such. It would merely require the state to pay for the privilege. I routinely make this point when critics argue that takings liability should not be expanded in other contexts, for fear that doing so would stop supposedly valuable government actions. But, in this case, the urgency of the crisis combined with the enormous scale of the compensation that would be required make it more likely that an adverse judicial ruling really would impede the government's policypotentially even shutting down the shutdown, so to speak.

The Takings Clause might still require compensation in situations where the government physically appropriates property in order to combat the epidemic. For example, it could potentially seize currently empty hotels or college dormitories in order to use them as temporary hospitals to treat Covid-19 patients. In such a case, there would be an actual physical occupation of property. And the police power exception would not apply, because the mere existence of an (unoccupied) hotel or dorm does not pose any threat to public health. But such cases are likely to be rare. If the need arises, owners of such structures would probably be happy to rent them to the government for fairly modest prices, given that they are unlikely to bring in much other revenue while the pandemic continues.

It gives me no pleasure to write any of the above. In an ideal world, I think at least some shutdown burdens should be compensable under the Constitution. But the Takings Clause is unlikely to be a vehicle for such compensation in all but a few marginal cases.

That said, I do think the principle underlying the Takings Clause points the way towards a moral rationale for compensation, even if such compensation is not legally required. As the Supreme Court put it in Armstrong v. United States (1960), "[t]he Fifth Amendment's guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." That is exactly what is happening in the coronavirus shutdowns: owners and employees of the shuttered enterprises are bearing a hugely disproportionate share of the burden of protecting the population as a whole against the virus.

Moreover, the people in question haven't done anything wrong. They simply own and operate businesses thatin normal timesare not only innocent but actually make important contributions to the community.

I am not sure what the best way to compensate them is. But I do think there is a strong case for providing at least some substantial relief. On that score, I agree with much of what co-blogger Keith Whittington says here. As he points out, "the government itself has ordered businesses to stop operating" and "[i]n such circumstances, the government should compensate individuals for the damage it has wrought and relieve individuals from the unforeseen burdens that they have been asked to assume."

But, if the shutdowns continue for any significant length of time, I am not optimistic that even the best designed relief program can compensate for more than a fraction of the enormous losses large numbers of people will suffer. The only truly effective relief would be to figure out a way to safely end the shutdowns as soon as possible, while moving to something like a South Korean-style regime, under which freedom of movement is restored, but the virus is kept in check by a combination of widespread testing and effective quarantines of infected individuals until the need for it is obviated by the development of a vaccine.

But I readily admit I lack the expertise needed to figure out how to achieve that goal. In this post, I have tried to achieve the much humbler task of explaining why the Takings Clause is unlikely to relieve the distress of property owners suffering enormous losses due to the coronavirus shutdowns.

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Does the Takings Clause Require Compensation for Coronavirus Shutdowns? - Reason

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Unequal Justice: Where Are Impeachment and the 25th Amendment When We Need Them? – Common Dreams

Posted: at 5:31 am

On March 13, in the midst of a deadly pandemic, President Donald Trump was asked if he took responsibility for the nation's lack of preparedness. Hisreply: "I don't take responsibility at all."

Where are impeachment and the Twenty-Fifth Amendmentthe two mechanisms provided by the Constitution for removing an unfit Presidentwhen we need them the most, as we do right now?

On February 5, Trump wasacquittedin his impeachment trial as a result of GOP cronyism and cowardice, so that door is shut. And theTwenty-Fifth Amendment, which requires action by the Vice President and a majority of the Cabinet or Congress to initiate removal, is a non-starter, given the obsequiousness of Mike Pence and the intractable corruption of Senate Republicans.

Meanwhile, just when you thought Trump couldn't get any crazier or more incompetent in his handling of the coronavirus crisis, he took another wild leap into bizarro land with comments at Tuesday's White House press conference, and in remarks he uttered the same day on Twitter.

The press conference was called to update the public on the health emergency and to announce the administration's stimulus package to revive the economy, which is now likely inrecession. In anexchange with reporters, Trump was asked by NBC's Kristen Welker whether he had changed his once-dismissive attitude about the perils posed by the virus. Trump responded:

"I have seen that where people actually liked [my tone during a press conference held the day before], but I didn't feel different. I've always known this is a realthis is a pandemic. I felt it was a pandemic long before it was called a pandemic. . . . I've always viewed it as very serious."

During the conference, Trump alsopraisedDemocratic New York Governor Andrew Cuomo, with whom he has often clashed over other kinds of policies and programs, stating that he and Cuomo had a "good talk this morning," and that he and the governor were "both doing a really good job."

But Trump delivered a very different message to his millions of social media followers just a few hours earlier, upbraiding Cuomo in aracist tweet: "Cuomo wants 'all states to be treated the same.' But all states aren't the same. Some are being hit hard by the Chinese Virus, some are being hit practically not at all. New York is a very big 'hotspot,' West Virginia has, thus far, zero cases. Andrew, keep politics out of it . . ."

By any rational standard, Trump's comments qualify as either some of the most egregious political lies of the twenty-first century or as yet another indication that he suffers from apersonality disorderthat allows him to dissociate from reality and disclaim responsibility for any of his actions. Instead, he blames others for any harm to the public, shocks to the stock market, or damage to the wider economy.

In truth, of course, the coronavirus isn't a Chinese disease, even if the initial outbreak occurred in China's Hubei Province and its capital city, Wuhan. The virus has since spread across the globe, fueled by community transmission, and is now firmly entrenched in the United States.

All Americans, regardless of race or ethnicity, are equally susceptible to the disease and equally capable of infecting others. And late Tuesday, belying Trump's tweet, West Virginiareportedits first coronavirus case. The disease is now in every state in the nation.

If anything, there is even less truth in Trump's press conference claim that he anticipated the pandemic before anyone else. To the contrary, Trumpdownplayedthe severity of the virus from the very outset, erroneously comparing it to the flu (which is far less lethal), denouncing media coverage of the malady as a "hoax," andpredictingthat "one dayit's like a miracleit will disappear."

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In arecent column,The New York Times' David Leonhardt catalogued many of Trump's most misleading statements. Here's a taste:

President Trump made his first public comments about the coronavirus on Jan. 22, in a television interview from Davos with CNBC's Joe Kernen. The first American case had been announced the day before, and Kernen asked Trump, "Are there worries about a pandemic at this point?"

The President responded: "No. Not at all. And we have it totally under control. It's one person coming in from China, and we have it under control. It's going to be just fine."

By this point, the seriousness of the virus was becoming clearer. It had spread from China to four other countries. China was starting to take drastic measures and was on the verge of closing off the city of Wuhan.

In the weeks that followed, Trump faced a series of choices. He could have taken aggressive measures to slow the spread of the virus. He could have insisted that the United States ramp up efforts to produce test kits. He could have emphasized the risks that the virus presented and urged Americans to take precautions if they had reason to believe they were sick. He could have used the powers of the presidency to reduce the number of people who would ultimately get sick.

He did none of those things.

Perhaps the most loathsome of all of Trump's lies was his oft-repeatedclaimthat test kits for the virus were widely available to anyone who desired one.

In fact, as other countries rolled out thousands of testing kits, the Centers for Disease Controlwas slow to act, and resisted using tests produced by the World Health Organization. Kits manufactured in the United States are only now being provided on a large scale to hospitals around the country, but at a pace that continues to lag that achieved by many other nations.

The paucity of kits prevented the United States from enacting early and effective containment initiatives, which in turn has resulted in undercounts of the U.S. infection rate, and no doubt will ultimately lead to a higher overall incidence of mortality from the illness.

If the first duty of a President is to level with the American people and tell the truth in times of crisis, Trump has been a colossal failure. Whether that failure is due to ineptitude, malfeasance, a psychological impairment or some combination of factors, the country needs to remove him from office.

In the absence of impeachment and the fortitude to invoke the Twenty-Fifth Amendment, we are left with one alternativeto oust him next November. That's provided, of course, that the coronavirus doesn't arm Trump with a pretext to suspend the election and declare martial law.

Think that couldn't happen? I would have thought so, too, but that was before the virus shut down life as we knew it in America.

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Unequal Justice: Where Are Impeachment and the 25th Amendment When We Need Them? - Common Dreams

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Daniel Collins Sides With Police in False Confession Case: Confirmed Judges, Confirmed Fears – People For the American Way

Posted: at 5:31 am

Confirmed Judges, Confirmed Fears is a blog series documenting the harmful impact of President Trumps judges on Americans rights and liberties. Cases in the series can be found by issue and by judge at this link.

Ninth Circuit Trump judge Daniel Collins cast the deciding vote in a 2-1 panel decision against Art Tobias, who had been coerced by police when he was just 13 years old into confessing to a murder he did not commit. Decided in February 2020, Tobias v. East granted qualified immunity to three police detectives from being sued for obtaining and using an involuntary confession in violation of the boys Fifth Amendment right against self-incrimination and for violating his due process rights by using interrogation techniques that shock the conscience. Their actions led to Tobias being sentenced for 25 years to life, and he was imprisoned for more than three years before his conviction was finally reversed.

As alleged by Tobias, video footage of the murder viewed by police showed that the perpetrator was a heavyset adult. Even though Tobias was five feet tall, 110 pounds and only 13 years old, the police officers treated him as the primary suspect. During questioning, they ignored his request for an attorney (which was why the conviction was overturned, and which the panel unanimously agreed they could be sued for). They also would not let him see his mother while she was at the station. In fact, they falsely told Tobias that they had shown his mother the video, and that she had identified him as the perpetrator. They also falsely told him that other people he knew had ratted him out. They shamed him for dragging [his] family into this, threatening him with a harsh sentence but promising him leniency if he would confess.

The majority concluded that even under Tobiass version of eventsand acknowledging that the detectives had unconstitutionally denied him the right to counselthe interrogation was not unconstitutionally coercive, so Tobiass confession was not involuntary. In addition, the majority found that the methods did not shock the conscience because the interrogation lasted only 90 minutes and did not involve physical threats or abuse, but were instead techniques that are all permissible.

Judge Kim Wardlaw dissented, explaining that courts hold police to a higher standard when they are interrogating minors. She cited circuit precedent holding police accountable when two teenagers were relentlessly pressured into a false confession, stating that every reasonable officer would have understood that the interrogation tactics used against Tobias were unconstitutional.

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Daniel Collins Sides With Police in False Confession Case: Confirmed Judges, Confirmed Fears - People For the American Way

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The small-government case for giving everyone a big check – The Week

Posted: at 5:31 am

The coronavirus relief checks are coming. Businesses are closing, increasingly by state mandate; unemployment claims are spiking; and as many as eight in 10 American workers live paycheck-to-paycheck, while half can't cover an unexpected $400 expense. Republicans and Democrats alike in Washington agree on the necessity of cash aid distributed directly to the public, something in the range of $1,000 per adult and $500 per child.

The major point left to be settled is means testing: Should the payments be scaled down or phased out entirely for those in higher income brackets? Perhaps the expected response from libertarians like me and fiscal conservatives more broadly is support for upfront means testing or some other barrier (requiring people to request the money, for example, or subjecting it to 2020 income taxes) to reduce the overall expenditure. Perhaps it's my cynical expectation of perpetual federal insolvency talking, but I think that would be a mistake. The scale of our national debt is already so monstrous that penny-pinching pandemic relief aid will accomplish nothing good.

So if we're doing checks, it should be simple and democratic, with minimal bureaucracy and maximum opportunity for local redistribution.

There are several reasons why this is a good idea, none of which require affection for big government. First is the issue of speed. Means testing or requiring applications of any kind takes time. But the growing portion of those eight in 10 workers living paycheck-to-paycheck don't have time. Some live in municipalities, like New York City, where evictions and/or utilities cutoffs have been suspended, but not all. And even if their housing is temporarily safe and transport costs near zero, even the most Spartan quarantiners still have bills to pay.

Second is the reality that however much shutdowns may be the least worst option in many places the state is the party responsible for these losses of income. Eminent domain is a reasonable analogy here, and when your property is taken via eminent domain, you must be compensated. (The Fifth Amendment requires that "private property [shall not] be taken for public use, without just compensation.") That compensation doesn't scale down for those with higher incomes, and rightly so.

Equally compelling, to my mind, is the real risk that means testing will prove destructively inaccurate. The preferred method seems to be checking income levels from 2018 tax returns but surely it's obvious that many people who were comfortable a year and a half ago are now on the brink of disaster?

I'm thinking of my friend who co-owns a local coffee shop, now shuttered indefinitely; or my friend the substitute teacher, who lost work when Minnesota closed all public schools through at least the end of the month; or my friend who works in mental health care in a hospital which could furlough her to make more room for COVID-19 patients. Whatever their 2018 tax returns said, that doesn't reflect their present reality. Here's a classic libertarian line: This isn't a call Washington will be able to make accurately. The feds aren't as smart as they think they are.

Finally, on a more hopeful note, simply sending checks to everyone allows those who don't need the extra money to give it to those who do. If "I still have a secure job" when a check shows up, tweeted Cato Institute scholar Scott Lincicome, "I'll blow it all on local restaurant gift cards and THEN donate all of those to my church." I hope to do something similar, and others will too. Thus permitting "citizens to make millions of separate and decentralized judgments about the needs in their communities will ... make the aid more effective overall," argued National Review writer and former columnist at The Week Michael Brendan Dougherty.

This is perhaps the most famous insight of libertarian economist F.A. Hayek (who, incidentally, supported a universal basic income, which these checks are on a temporary scale): No central authority can possibly collect all the local knowledge needed to plan a national economy. Indeed, "practically every individual has some advantage over all others because he possesses unique information of which beneficial use might be made," Hayek wrote in a 1945 contribution to The American Economic Review, "but of which use can be made only if the decisions depending on it are left to him or are made with his active cooperation."

The state does not know better than you or me about who in our communities is in sudden need. When and we all know there is no "if" here Washington borrows, loans, and spends enormous sums of money attempting to offset the economic distress the response to coronavirus has wrought, distributing responsibility for how that money is spent will make better use of local knowledge than any national means testing program can. The simpler and more democratic the relief spending, the more real good it will be able to do.

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The small-government case for giving everyone a big check - The Week

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What Should We Know About the Presidents Health? – The Atlantic

Posted: at 5:30 am

It is true that the public deserves a sense of a candidates physical and mental fitness, and that candidates have a moral responsibility to disclose serious conditions that could impair their ability to serve. Its just not clear that indiscriminate release of medical records gets us there.

If genuine concern persists about candidates health, we could consider creating an independent panel of doctors to perform a physical examination and offer impartial assessments of candidates ability to serve. Such a panel has been proposed by Jimmy Carter, among others, and could vet not only candidates health, but also when and whether the Twenty-Fifth Amendment should be invoked for an incapacitated president.

Read: The hardest job in the world

Indeed, a more important concern about whether a president can effectively govern is declining mental acuity over timesubtle cognitive changes due to nascent dementia or other neurological conditions. Unlike cholesterol levels and colonoscopieswhich are objective, diagnostic, and widely usedno single test determines whether a person has the mental or emotional deficits we might worry about with presidential candidates.

While screening exams exist, such as the one President Trump took in 2018, diagnoses of cognitive decline are made based on comprehensive assessments of in-depth interviews, laboratory data, and imaging tests. But a candidate who runs an effective presidential campaign is unlikely to arouse sufficient clinical suspicion for a doctor to actually pursue and document any significant cognitive impairment.

Moreover, not all patientsleast of all the powerful, high-performing patients running for presidentroutinely receive this type of cognitive evaluation. Doctors calibrate neurocognitive testing and treatment to the individual patient in front of themand even with the same patient, different doctors may consider different diagnoses and record different data. Doctors notes, then, are more like journal entries than tax returnsand thus dont allow for objective, meaningful comparisons of mental fitness across candidates.

And so, annual nonpartisan health evaluations, ones that include cognitive assessments, would be far more helpful than old medical records or letters from longtime doctors. This is partly because, as Carter notes, unlike candidates personal physicians, an independent panel wouldnt have to balance patient confidentiality and personal interest vis--vis the nations interest. But its also because most neurocognitive tests are more valuable as repeated measurements used to track trends in cognitive and behavioral functioning over timeas could be performed by annual evaluationsthan as snapshots of mental acuity available through old medical records.

Ultimately, however, no medical stamp of approval exists for presidential fitness. The best test of whether a candidate is fit to serve is their performance during the campaign (that is, if we ever get back to a normal campaign). Just as impeachment is a political processnot a legal onedetermining whether someone is fit for the highest office requires the publics judgment, not the doctors note.

Aside from a few rumors, Grover Clevelands maritime operation remained largely secret for nearly a quarter century, until the missions last surviving surgeon finally revealed what had happened. Cleveland, a cancer survivor who weighed 260 pounds, recovered swiftly and completed his second term without incident. He went on to enjoy more than a decade of post-presidency life, and died, according to one report, a perfectly natural death.

We want to hear what you think about this article. Submit a letter to the editor or write to letters@theatlantic.com.

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As I write this I am seeking balance in an unbalanced time – AL.com

Posted: at 5:30 am

As I write this it is mid-morning and Ive already washed my hands multiple times. Ive got rubber gloves in my car now. I skipped the gym in favor of a good ol driveway workout but I paid my gym dues anyway.

My law firm invested in enhanced video conferencing capabilities. My wife checked on our neighbors. This is just stuff that we all do now.

But having said that I will also say that this environment of concern and social restriction should not constitute our new normal just our current state of affairs. As I write this I also just saw on social media that the Alabama Department of Commerce is issuing guidelines for economic relief.

One of Alabamas larger churches just partnered with the State and a hospital to conduct medical testing. Some school systems are finding ways to put food on the table for underprivileged students. But at the same time some government entities here in the Yellowhammer State are forcing the closure of private businesses in something almost akin to martial law.

As I write this I also take note that the federal government just instituted some very severe mandates on private enterprise. I understand and respect such things as the closure of borders, travel restrictions, cessation of large gatherings and market freezes to prevent sell-offs. I find it difficult to imagine though how small businesses will be able to afford government mandated paid leave to staff when the small business may already be in a crunch due to economic downturns.

As I write this I am seeking balance in an unbalanced time. There is a reason that our founders saw fit to enact the Fifth Amendment which contains certain rights of due process and a prohibition of the taking of private property by the government. They did so because they had already seen it, endured it, and saw fit to prevent it ever happening again.

To be sure, government has a legitimate and necessary purpose to the maintenance of a civil society. James Madison is quoted in the Federalist Papers as saying that if men were angels, no government would be necessary but he followed that by adding that we must first enable the government to control the governed; and in the next place oblige it to control itself.

There is an inexorable strain of gravity versus levity, restriction versus liberty, management versus overreach. Balance in an unbalanced time is vital to the daily walk in this democracy. At the end of this crisis and to be clear, I am confident that there will be an end to this crisis I want both the governing and the governed to look back on this time with confidence and satisfaction that we stood up, owned up, and met the challenge in a manner that future generations will be proud of and draw from.

These are strange times. But I am mindful of a contemporary translation of Proverbs 24:10 that says if you fall to pieces in a crisis, there wasnt much to you in the first place. Lets meet this challenge with a spirit of cooperation, earnest commitment and a stated end goal of not just the preservation of personal health but of the health of our communities and way of life. As I write this I know we can overcome with balance. As I write this I am looking forward. As I write this I am going to pause and go check on an elderly friend.

Phil Williams, API Director of Policy Strategy and General Counsel, is a former State Senator from Gadsden. For updates, follow him on Twitter at @SenPhilWilliams and visit alabamapolicy.org.

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API is an independent, nonpartisan, nonprofit research and educational organization dedicated to strengthening free enterprise, defending limited government, and championing strong families. If you would like to speak with the author, please e-mail communications@alabamapolicy.org or call (205) 870-9900.

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As I write this I am seeking balance in an unbalanced time - AL.com

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Quarantine and the Constitution – The Bulwark

Posted: at 5:30 am

Under Donald J. Trump, the longstanding debate over the proper scope of the federal governments powers vis--vis the states has largely focused on whether there remain any meaningful constraints on the massive powers of the U.S. presidency. Now, with COVID-19 gripping the globe, Americans are looking to the government for protection from uncertainty, chaos, illness, and death. Millions of people are already heeding the advice of medical experts and voluntarily practicing social distancing. Soon, Americans could find themselves confined to their homes by order of the government. Its scary stuff that strikes at the very heart of individual liberty: the ability to move freely in public without being punished by the government.

What, then, is the scope of the governments power to confine people to their homes or, worse, to a government-run facility? What are the possible penalties for violating a government-ordered quarantine? And what does the U.S. Constitution have to say about all of this?

Lets address the last question first. In general, individual states have the power to make quarantine decisions affecting movements within their borders, pursuant to the Tenth Amendment to the Constitution, which leaves to the states the powers not delegated to the United States. Such residual powers include whats generically known as the police powerthat is, the power to establish laws protecting the health, safety, and welfare of the public. Every state has laws on the books permitting authoritiessometimes the governor, sometimes public health officials, sometimes bothto enact and enforce quarantine and isolation.

Meanwhile, the federal government derives its constitutional authority to quarantine people from the Commerce Clause, which gives Congress the power to regulate Commerce with foreign Nations, and among the several States. Thus, the federal governments quarantine power applies most clearly at the U.S. border and for purposes of preventing the movement of infected people from state to state.

Under its Commerce Clause authority, Congress in 1944 passed the Public Health Service Act, which gave the executive branch power to enforce quarantines. The statute remains in effect today, although it has been amended several times, and although the relevant executive-branch agencies have been repeatedly reorganized and renamed. As it reads now, it gives the surgeon general, with the approval of the secretary of health and human services, the authority to take steps necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into another State or possession. The statute also allows the president, via executive order and upon the recommendation of the HHS secretary, to issue regulations that provide for the apprehension, detention, or conditional release of individuals... for the purpose of preventing the spread of disease.

On January 31, 2020, HHS Secretary Alex Azar declared a United States public health emergency in connection with the coronavirus. His declaration unleashed massive regulatory powers to infringe on individual liberties in order to stem the crisis.

First, the declaration means that the fedsif they believe that the states arent doing enoughcan step in and impose a national quarantine. The relevant regulations allow the federal government to step in to manage disease whenever the director of the Centers for Disease Control and Prevention (CDC) determines that the measures taken by health authorities of any State or possession... are insufficient to prevent the spread of any of the communicable diseases from such State or possession.

Second, if people want to travel across state lines anyway, the federal government can require permits. The regulations provide that requests for a travel permit must state the reasons why the travel is being requested, along with the mode of transportation, the places or individuals to be visited, the precautions, if any, to be taken to prevent the potential transmissionand whatever else the CDC believes it needs to know about people. Those who receive a permit must retain it in his/her possession throughout the course of travel, and can be required to present the permit to the operators of conveyances.

Third, the regulations state that the CDC director may, when acting under an executive order, authorize the apprehension, medical examination, quarantine, isolation, or conditional release of those who are reasonably believed to be infected and moving from state to state. The CDC can also require an individual to undergo a medical examination as part of a Federal order for quarantine. (The government is obliged to arrange for adequate food and water, appropriate accommodation, appropriate medical treatment, and means of necessary communication for detained individuals, although those terms are undefined.)

But what about the Due Process Clause, which forbids the government from depriving individuals of libertyhere, freedom of movementwithout some form of notice and process, i.e., the ability to be heard? (There are actually two Due Process clauses in the Constitutionone in the Fifth Amendment, which applies to the federal government, and one in the Fourteenth, which applies to the states.)

The regulations set forth the process that the federal government must follow in issuing a quarantine order, which includes that it provide an explanation of the factual basis for it, a promise to reassess the order within 72 hours, and an explanation of the criminal penalties for violating the order.

Yep, there are criminal penalties for violating a federal quarantine order. For individuals, they include a fine of up to $100,000 or a year in jail, or both. If the violation results in a death, the maximum fine climbs to $250,000.

The regulations disclaim that nothing in this section shall affect the constitutional or statutory rights of individuals to obtain judicial review of their Federal detention. All this means is that, if someone is detained, that person can go to court and ask a judge to order the government to release him or her, or, if the person is criminally prosecuted, it means that he or she can mount a defense based on the Due Process Clause or other provisions of the Constitution.

At the end of the day, however, a right under the Constitution is only so good as it is enforced. The Constitution does not prevent Congress from passing unconstitutional statutes or regulations in the first place. Nor does it prevent the executive branch from unconstitutionally enforcing quarantine laws. In the event of a mass quarantine in the United States, those battles would end up in the courts, which could decide not to intervene at all on the theory that the countervailing public-safety questions are too weighty for the judiciary.

Where does that leave individual Americans? At the mercy of the people in power and a hope-against-hope that the quality of their judgment will strike the right balance between individual liberties and public safety.

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Recovering A Strong American Conception Of Property Rights – The Federalist

Posted: February 27, 2020 at 1:18 am

Within our constitutional framework, property rights have been relegated to second-class citizenship.

Take the Supreme Courts double-standard on the Fifth Amendments prohibition against the government taking private property unless its for public use. For alleged infringements of other guarantees in the Bill of Rights, the Court strictly scrutinizes government action. But with the Fifth Amendments property protections, the Court allows legislatures to interpret their own constitutional boundaries. If only property rights are at stake, then the fox may guard the henhouse.

Or consider the Courts amorphous review for substantive due process, a values-based inquiry into the constitutional legitimacy of state and federal regulatory laws. On this score, the Court candidly concedes that property rights and contractual freedoms enjoy less protection than other, non-economic liberties.

In his new book Property and the Pursuit of Happiness: Locke, the Declaration of Independence, Madison, and the Challenge of the Administrative State, Edward Erler shows how constitutional property rights climbed through the looking glass and came out topsy-turvy. From Americas founding era to the present day, property rights flipped from cachet to low-caste, and whats supposed to be up, well, is down.

Erler is a professor of political philosophy, so its unsurprising this books foremost contribution is its discussion of the vital role property rights played in the Framers constitutional vision. Tracing an arc of political thought from Aristotle through Locke on to the Declaration of Independence, Erler argues that the Founding Fathers put an inherently American gloss on pre-existing conceptions of property one that merged natural rights and moral obligation into a synthesis they called the pursuit of happiness.

For the Founders, the right to property was the comprehensive right that included all other rights. In this spirit, the Supreme Court in 1795 averred that the right of acquiring and possessing property, and having it protected, is one of the natural, inherent and unalienable rights of man.

Erler explains the decline of property rights from these sanctified heights. As the economy advanced and governments grew, vested property interests came increasingly into conflict with public policy, and it fell to the courts to demarcate the boundaries between public and private spheres.

For much of our nations history, as courts wrestled with these controversies, they hewed to an understanding of property rights closer the Framers than what we see today. The practical result was that property rights enjoyed considerable constitutional protection from overbearing government.

But the scales of justice shifted early in the twentieth century, when the Progressive forces of history swept first into legislatures and then into the courts. Progressives rejected the Founders conception of property rights because it impeded the science of economic planning. As Progressive influence waxed, property rights waned.

Although Property and the Pursuit of Happiness overlaps in subject and tone with Richard Epsteins excellent 2008 book, Supreme Neglect: How to Revive Constitutional Protection for Private Property, the two books are complementary but not the same. Discussion of the Founding Fathers is largely absent from the latterarguably the only flaw in Epsteins seminal workand this topic is Erlers strongest contribution.

This is not to say that Property and the Pursuit of Happiness is flawless. In the introduction, Erler warns that he test[s] the patience of the reader on some occasions, and hes not lying. The book is needlessly difficult. Relatedly, he peppers his prose with awkward sentence introductions (e.g., In a statement that is not entirely hyperbolic . . .). Further, the books subtitle, which mentions the Challenge of the Administrative State, engages in a bit of false advertising, as Erler gives the topic only a cursory examination.

Notwithstanding these drawbacks, Property and the Pursuit of Happiness is an important contribution to a growing body of scholarship pushing for a restoration of property rights to their original place among our individual freedomsparticularly with respect to the Fifth Amendments Takings Clause.

The good news is that these ideas are taking root. To wit, the Trump administration is reshaping the federal judiciary with a generation of judges affected by Richard Epsteins work. On the other side of the bar, dogged public interest lawyersmost notably those at the Pacific Legal Foundationhave advanced property rights in courts across the country. After decades, all this effort is paying off.

Consider the blowback to the Supreme Courts infamous holding 15 years ago in Kelo v. City of New London, which allows government to condemn peoples homes and give their land to a corporation in the name of economic development. As Ilya Somin explains in his book The Grasping Hand, many state courts reacted to Kelo by tightening restrictions on the use of eminent domain.

Last Summer, the Court handed down a watershed decision in Knick v. Township of Scott, which basically puts property rights (and Fifth Amendment takings claims, specifically) on the same procedural footing as other guarantees enumerated in the Bill of Rights. The Courts newest members, Justices Neil Gorsuch and Brett Kavanaugh, joined Chief Justice John Robertss Knick opinion. The holding is a bold step towards ending the inequality of our constitutional rights.

None of these welcome developments would have happened absent the toils of scholars and practitioners who laid the foundations for a resurgence of property rights. With Property and the Pursuit of Happiness, Erler adds a valuable voice to this worthy cause.

William Yeatman is a research fellow at the Cato Institute in Washington, D.C.

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Julio Carrillo pleads 5th when called to testify in wife’s murder trial – WMTW Portland

Posted: December 13, 2019 at 1:52 pm

Julio Carrillo invoked his Fifth Amendment rights when called to testify Friday in the murder trial of his wife.Sharon Carrillo is charged with murder in the death of her 10-year-old daughter Marissa Kennedy.Julio Carrillo is serving 55 years in prison after pleaded guilty to killing the girl.Sharon Carrillo's father and stepmother also took the stand Friday morning as the defense continued to present its case. Prosecutors rested on Thursday.Roseanne Kennedy, Sharon Carrillos stepmother, testified that her stepdaughter didn't say her first word until she was nearly 5 years old and was diagnosed with learning disabilities.The defense has argued that Sharon Carrillo has limited mental capacity.Roseanne Kennedy said Julio Carrillo had Sharon Carrillo and Marissa Kennedy under his control, with both seeking his approval before doing anything.Kennedy went on to say Sharon Carrillo lost her identity and turned into a robot because of Julio Carrillo.

Julio Carrillo invoked his Fifth Amendment rights when called to testify Friday in the murder trial of his wife.

Sharon Carrillo is charged with murder in the death of her 10-year-old daughter Marissa Kennedy.

Julio Carrillo is serving 55 years in prison after pleaded guilty to killing the girl.

Sharon Carrillo's father and stepmother also took the stand Friday morning as the defense continued to present its case. Prosecutors rested on Thursday.

Roseanne Kennedy, Sharon Carrillos stepmother, testified that her stepdaughter didn't say her first word until she was nearly 5 years old and was diagnosed with learning disabilities.

The defense has argued that Sharon Carrillo has limited mental capacity.

Roseanne Kennedy said Julio Carrillo had Sharon Carrillo and Marissa Kennedy under his control, with both seeking his approval before doing anything.

Kennedy went on to say Sharon Carrillo lost her identity and turned into a robot because of Julio Carrillo.

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