Virus’ ‘side effects’ include controversial government actions

Bill Knight column for 5-18, 19 or 20, 2020

Leaders can use a crisis to push political agendas unrelated to the emergency, and executive power can expand, big-time. Historically, unilateral changes might have seemed logical but disturbing, from Lincoln's suspending habeas corpus and Roosevelt’s incarcerating Japanese Americans, to George W. Bush after 9-11 launching two wars, the PATRIOT Act, torture and unrestricted detention of foreign suspects.

Now, governments try to enforce public-health restrictions and comply with public-access laws, but the Trump administration is trying to upend federal policies and laws with little to no relevance to COVID-19.

Declaring a national emergency in March, President Trump invoked the Defense Production Act (plus the Stafford Disaster Relief and Emergency Assistance Act, and the National Emergencies Act), gaining new powers, such as deploying the military, freezing bank accounts and silencing broadcasters.

The Defense Production Act – for years used mostly for military supplies – has only been used to force General Motors to make ventilators (which it previously announced anyway), and to urge slaughterhouses to operate despite virus outbreaks there – where some “blamed the victims.” Health and Human Services Secretary Alex Azar “defended Trump’s decision to use the Defense Production Act to force meatpacking plants to remain open by stating he believes infected employees were being exposed to the virus in their communities and bringing it into processing plants,” according to the BlueGreen Alliance of environmental and labor groups.

Meanwhile, here are 10 recent moves leaders claim COVID-19 made necessary:

* Trump refused to reopen enrollment for the Affordable Care Act for the dozens of states where people unemployed because of the pandemic also lost company-provided health insurance.

* He increased drug patrols, saying, “This will impact the coronavirus because people are trying to get in.”

* The White House intensified border restrictions and asylum claims this spring by bypassing court-ordered due process and immediately deporting people entering the nation without documents, causing Migration Policy Institute director Andrew Selee to comment,  “The coronavirus may go away, but there’s a chance you could see these measures stay in place long after epidemic begins to recede.”

* Six states used COVID-19 as an excuse to restrict women’s right to choose, and though judges stopped such moves in Iowa, Ohio and Oklahoma, an appeals court covering Louisiana, Mississippi and Texas in April upheld the effort.

* The National Labor Relations Board in March referred to the coronavirus when it suspended all union elections. (After a backlash from unions, the NLRB said it would reverse the decision.)

* U.S. EPA administrator Andrew Wheeler in March eliminated enforcement of environmental standards for the duration of the pandemic.

* A drastic reduction in fuel-efficiency standards (which automakers oppose) was finalized in March while most of the nation was riveted on pandemic news.

* Trump stepped up his defiance of checks and balances, last month firing two inspectors general and criticizing a third after signing the CARES Act rescue bill but issuing a signing statement disputing anyone supervising how funds are disbursed, commented, “I’ll be the oversight.”

* Voting is jeopardized. Some states postponed primaries; Wisconsin ran an election despite dangers to voters, endangering or suppressing voters. Karen Greenberg of Fordham Law School in New York commented, “The social distancing necessary to halt the spread of the virus has called into question the logistics of normal voting and even the future viability of a full and fair election in November,” and professor Marjorie Cohn from the Thomas Jefferson School of Law in San Diego said, “If Trump loses the election, there is a danger he might illegally declare martial law and refuse to leave the White House.”

* Last, but not least, Attorney General Williams Barr this spring asked Congress for the power to indefinitely jail suspects without trial during emergencies like the coronavirus crisis, then approved dismissing charges against fired National Security Adviser Michael Flynn, who’d pleaded guilty.

Besides domestic effects, foreign relations are being damaged, according to Greenberg. In addition to the administration’s decision (despite allies’ opposition) to withdraw from the “Open Skies” treaty with Russia to reduce the risk of accidental war, Trump’s provoking China by blaming it for COVID-19, and heightened tensions with Iran by launching attacks on pro-Iran forces in Iraq and stiffening economic sanctions that make coronavirus responses there harder.

Now, Trump is refusing to fund the Postal Service or expand mail-in balloting, and he wants to cut payroll taxes that fund Social Security…

Is it paranoia to see parallels getting closer to Nazi’s 1933 Reichstag Fire?

Reopenings have possible positives, likely negatives

Bill Knight column for 5-14, 15 or 16, 2020 

After pandemic precautions, places are reopening due to political pressure or public concerns, and cautious optimism is mixed with real worries about new outbreaks, reluctant shoppers or legal liabilities.

Despite not meeting White House guidelines on testing, tracing, and treating or isolating, dozens of states and communities are relaxing requirements or defying public-health orders, with others possibly following suit in coming weeks.

In Illinois, Gov. J.B. Pritzker’s “Restore Illinois” plan has five phases to proceed, with standards to meet before moving to the next step.

Optimists among us hope recovery will be as fast as the economy was in declining. More than 33 million jobs have been lost in seven weeks, the unemployment rate is 14.7%, and government aid has been insufficient. People have become frightened to be without income as well as scared of infection.

Of course, being broke might eventually improve. Death won’t, and health experts warn that opening too soon could let the virus rebound with deadly results.

“If we relax these measures without having the proper public-health safeguards in place, we can expect many more cases and, unfortunately, more deaths,” said Josh Michaud, associate director of global health policy with Kaiser Family Foundation.

Physicians say it can be 14 days after COVID-19 exposure before symptoms show, so there are concerns that people will be less vigilant in continuing to “bend the curve” of new cases.

“Rising mobility as well as the easing of social-distancing measures indicate growing contacts among people will promote transmission,” said the Institute for Health Metrics and Evaluation at the University of Washington, and last week Dr. Thomas Frieden, former director of the Centers for Disease Control and Prevention, said, “We’re not reopening based on science. We’re reopening based on politics, ideology and public pressure. And I think it’s going to end badly.”

Beyond illness, there are consequences to companies and local governments that defy state orders. They could face lawsuits, according to the Illinois Trial Lawyers Association, whose president Antonio Romanucci in a prepared statement said, “The prudent course would be to stay closed for another 25 days and limit any further potential spread which could lead to litigation.”

Further, municipalities and employers might not be covered by insurance if people get sick and sue. Policies are “not going to cover intentional acts,” Illinois Insurance Association director Kevin Martin told journalist Rich Miller, and the Illinois Restaurant Association and Illinois Retail Merchants Association urged businesses to comply with safety orders.

Some officials have even said it’s worth some people dying if that means the country’s economy bounces back, a perspective rejected by emergency physician Leana Wen of the Milken Institute School of Public Health at George Washington University.

“This is a false choice,” Dr. Wen said. “There are ways to safely reopen, and consumer confidence depends on the reassurance of public-health protections. Another flaw with this argument is that those making it are committing others to a sacrifice they did not choose.”

The nation’s top infectious disease official, Dr. Anthony Fauci, this month said, “It’s the balance of something that’s a very difficult choice, like how many deaths and how much suffering are you willing to accept to get back to what you want to be, some form of normality, sooner rather than later?”

Illinois Department of Public Health director Dr. Ngozi Ezike conceded that COVID-19’s spread varies from place to place, so some areas have far fewer cases than others.

“It’s not uniform across the state, and we understand that,” she said. “And so that’s why we’re looking very closely, every day, multiple times a day, just to figure out where we’re at and figure out who’s going up in what dimension, who’s going down in the other dimension.”

On Sunday, Pritzker defended the methodical approach.

“We are being very careful,” he said. “We’ve done a lot to make sure we’re keeping these numbers moving in the right direction. And we will not reopen unless we meet all of the standards. Coronavirus is still out there… So we all are going to have to change the way we do things until we’re able to eradicate it.”

Ezike said Illinoisans might focus their frustrations on the virus itself.

“Everybody wants us to get back to normal,” the doctor said. “I think we are sending some of the frustration towards the wrong entities. You should be sending it towards the virus. And then we should all see how we can support ways to find cures.”

Supreme Court becoming battleground for future

Bill Knight column for 5-11, 12 or 13, 2020

Court-watchers wondered about Justice Ruth Bader Ginsburg’s gall-bladder procedure last week, yet they’re also troubled by Supreme Court cases set to be argued this week and question whether the Court remains independent.

There’s “Committee on the Judiciary v. McGahn,” where Trump says he can shelter aides from obeying subpoenas from Congress despite its investigative authority; and “Trump v. Deutsche Bank,” “Trump v. Mazars USA” and “Trump v. Vance,” all of which have the President saying he’s shielded from inquiries into his businesses. In Vance, Trump says the New York prosecutor can’t get his tax returns because Presidents can’t be indicted while in office, though that stems from a Justice Department opinion on federal actions, neither law nor Constitutional language (although Vance’s office isn’t federal).

Also this week, in “U.S. House v. Mnuchin,” Trump claims he can spend public funds regardless of Congress’ explicit appropriations despite Justice Joseph Story a century ago writing that if Congress didn’t control spending, “the executive would possess an unbounded power over the public purse.”

All these cases touch on Trump’s pattern of unaccountability, which arguably ignores the Constitution’s separation of powers.

Meanwhile, Chief Justice John Roberts faces a request to examine Senate Majority Leader Mitch McConnell allegedly “fixing” federal courts by manipulating one judge’s resignation to nominate protégé and Fox News’ contributor Justin Walker to the bench. Roberts also received the high-profile resignation of James Dannenberg, a 38-year member of the Supreme Court Bar.

“You are doing far more – and far worse – than ‘calling balls and strikes’,” Dannenberg wrote. “You are allowing the Court to become an ‘errand boy’ for an administration that has little respect for the rule of law.”

This wave follows increasing concern about the Court losing respect and legitimacy. Last summer, Illinois’ Dick Durbin and four other Democratic Senators blasted the Court for being dominated by appointees picked by the Federalist Society and promoted by the NRA. Alluding to corporate and GOP interests prevailing on voting rights, environmental de-regulation, redistricting, limiting Medicaid to millions, and money in campaigns, their letter said, “The Supreme Court is not well, and the people know it.”

Elsewhere, Roberts rebuked Senate Minority Leader Chuck Schumer for criticism of the Court days after not commenting on Trump attacking Ginsburg and Justice Sonia Sotomayor and demanding they recuse themselves from “all Trump or Trump-related matters.”

Sotomayor panned the Court’s five conservative Justices for repeatedly letting Trump have “emergency stays” to enact controversial policies before the Court decides on their legality, noting that Trump has done so more than Presidents Bush and Obama, combined. She wrote, “With each successive application, cries of urgency ring increasingly hollow.”

Further, Justice Clarence Thomas’ wife Ginni is seeking to purge “disloyal” federal employees from government work, according to Axios.

Historically, Justices were loyal to the Constitution, not the President or party behind their appointment. The Court unanimously ruled Bill Clinton had to answer Paula Jones’ lawsuit accusing him of sexual improprieties, and unanimously rejected Nixon’s argument that he had absolute executive privilege, ordering the President to comply with a subpoena for White House tapes that ultimately contributed to his resignation.

Critics say today’s Court is no longer politically neutral, a change slow in coming but foreshadowed in McConnell blocking the 2016 nomination of Judge Merrick Garland in the hope that the election eights months later would install a Republican.

Ahead, the Court will rule on immigration (whether the White House can withhold funds to force states or cities to cooperate with federal authorities); the anti-corruption “emoluments” clause of the Constitution (accusing Trump of illegally enriching himself through his office); whether Trump has the power to fire anyone without cause in independent agencies such as the Consumer Financial Protection Bureau, the Securities and Exchange Commission, etc., ignoring precedent; women’s right to choose, the Affordable Care Act, and other oversight measures, such as Trump seeking to restrict the authority of the new Inspector General assigned to supervise the $2 trillion coronavirus relief package.

Faced with the hypocrisy of pretending to be impartial while giving Trump unprecedented power, one wonders about its extent.

“The Supreme Court must never, never be viewed as a partisan institution,” a nominee declared to the Senate Judiciary Committee.

That was in 2018, when Brett Kavanaugh was about to join the Court.

And yet…