Massachusetts Gov. Charlie Baker announced yesterday that under emergency powers related to the coronavirus epidemic, his state’s nursing board “put in place an emergency procedure that will make it possible for licensed out-of-state medical professionals and nurses to get licensed here in Massachusetts in one day.”

That’s a good idea, which should help get medical professionals to where they are most needed, and it is one of many good ideas that should be kept on as policy after the pandemic emergency passes. After Superstorm Sandy in 2012, by contrast, when storm-ravaged oceanside homeowners badly needed skilled labor to restore their premises to usable condition, local laws in places like Long Island forbade them to bring in skilled electricians even from other counties of New York, let along other states. As I wrote in this space then:

In a sane world, if occupational licensure existed at all, it would be automatically relaxed at a time of extremity like this, with lives as well as gigantic economic damage at risk….

It’s at a time of disaster that the irrationality of so many market-blocking rules, licensure among them, becomes most obvious.

Cato’s work on occupational licensure in medical and other fields goes back many decades and continues to the present. There is strong evidence that licensing burdens in many areas could be scaled back or eliminated entirely at no cost in consumer welfare (and often a gain), and that interstate barriers to recognition of licenses held in good standing elsewhere impose particularly high costs to little benefit.

Meanwhile, as part of a group of emergency measures in Maryland yesterday, Gov. Larry Hogan issued an executive order providing that all renewals of expiring licenses, permits, registrations and the like — including driver’s, business, and other licenses, not only occupational — would be extended to until 30 days after the state of emergency ends, whenever that is. The step will protect state employees and other users of public buildings from unnecessary contacts, as well as sparing many members of the public the fear that they will need to break isolation and social distancing in order to keep their licenses current.

Other states should follow on both measures.

The failures of socialism have been chronicled many places, from Socialism by Ludwig von Mises in 1922 to Socialism: The Failed Idea That Never Dies by Kristian Niemietz just last year. Perhaps the most contemporary failure, outside the continuing tragedies of North Korea and Cuba, is the sad example of Hugo Chavez’s “21st century socialism” in Venezuela, which turned out to be all too similar to 20th century socialism.

But right now we may be witnessing yet another failure of socialism: the sudden collapse of the presidential campaign of self-proclaimed socialist Bernie Sanders.

Just two weeks ago there was full-scale Sanders panic. Coming off his near-defeat of Hillary Clinton in 2016, Sanders seemed to be on a roll, building toward a stronger effort in 2020. After the senator’s success in Iowa, New Hampshire, and Nevada, he jumped into the lead in national polls. The “moderate” Democratic candidates seemed on the ropes. Bernie was dubbed the frontrunner for the Democratic nomination and was leading President Trump in general election polls.

Sanders started to get more attention. Debates over “democratic socialism” heated up. Sanders went on national television to defend his praise of Fidel Castro. Democratic party leaders despaired. And then the voters started paying attention. Sanders lost big in South Carolina, as expected. Not so expectedly, he lost 10 of 14 primaries on Super Tuesday. Then just last night his campaign suffered probably fatal blows, especially in Missouri and Michigan. In Missouri, a state where Clinton had barely edged past him in 2016, he lost to Joe Biden by 60 to 35 percent. And in Michigan, where his upset of Clinton in 2016 had propelled his campaign, voters preferred Biden by 53 to 36 percent.

It looks like voters, even Democratic primary voters, aren’t as enamored of socialism as we had feared. In Michigan he carried voters 18 to 29. But his claims that he could win the presidency by generating a huge turnout of young voters have not panned out. Youth turnout has been lower throughout the primaries than it was in 2016. Sanders loses African-American voters and older voters heavily. He did worse with the white working class than he did in 2016. He lost both college-educated whites and non-college whites.

We’ve worried a lot about the rise of illiberal populism on both right and left, in the United States and around the world. Ideas we thought were dead — protectionism, ethnic nationalism, anti-Semitism, and socialism — are back. But I’m breathing a little easier today. It seems that there’s less enthusiasm for the socialist version of illiberalism than I feared.

These results suggest that much of the Sanders 2016 vote was an anti-Clinton vote. Hillary Clinton had the second-highest unfavorable rating for any presidential candidate polled by Gallup since 1956, second only to Donald Trump. Perhaps it should have been no surprise that an alternative candidate could come so close to denying her the nomination. But in every state up through Super Tuesday, Sanders got a smaller percentage of the vote in 2020 than he did in 2016, including his home state of Vermont.

To be sure, Joe Biden is nobody’s idea of a libertarian or a classical liberal. In rejecting socialism, Democratic voters aren’t embracing free markets. Biden is a big-government progressive in the mainstream of the Democratic Party, and both his long record in public office and his current positions include a great many things for libertarians to oppose. But he’s no revolutionary socialist, and for many voters he seems to represent an opportunity to return to normalcy and stability. 

Looking forward we may wonder whether Joe Biden will maintain favorability ratings better than those of Clinton. Right now he’s well ahead of Trump in polls about honesty, which was a weak point for Clinton. But the election is still eight months away.

Protocol reports:

Senator Amy Klobuchar [announced] a new bill to crack down on monopolies, including shifting the burden of proof onto companies to demonstrate they’re not suppressing competition and fining anticompetitive giants up to 15% of their revenues.

In a liberal government, government officials must carry a burden of proof to limit the liberties or rights of individuals. For example, to put someone in jail, prosecutors must show they violated the law beyond a reasonable doubt.

In an illiberal government, individuals must prove to government officials that they do not deserve having their liberties or rights restricted. In an illiberal government, individuals must prove to the government that they have not violated the law. This assignment of the burden of proof underpins ideals like the rule of law and due process.

A timely reminder then, that liberal government should not be taken for granted.

On Wednesday, at a rally on the Supreme Court steps, Senate Minority Leader Chuck Schumer (D‑N.Y.) cut loose with a truly amazing diatribe against Justices Neil Gorsuch and Brett Kavanaugh, declaring that the two would “pay the price” and “won’t know what hit you if you go forward with these awful decisions.” Schumer’s menacing if vague comments drew prompt disapproval from a broad range of legal figures, such as the heads of the American Bar Association and New York City Bar Association as well as Democratic SCOTUS shortlister Neal Katyal and Harvard’s Larry Tribe. Chief Justice John Roberts weighed in with a rare public rebuke: “threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous.”

Schumer proceeded to dig in and even blast Roberts personally for the criticism. By Thursday, he was ready to concede grudgingly that he “should not have used the words I used. They didn’t come out the way I intended to,” while still staying on the offensive in every other respect and accusing his adversaries of “manufacturing” the uproar.

I’ve got a new post at Ricochet reviewing the controversy, including its much-echoed “what about…?” dimension:

Defenders of Schumer assailed the chief justice for not having weighed on some other inappropriate Trump sallies, including his ill-grounded speculation recently (never filed as an actual motion) that Justices Ruth Ginsburg and Sonia Sotomayor should recuse themselves from Trump matters, and his aspersions on the judge in the Roger Stone case. Those are part of a frequent and blatant Trump habit of trash-talking judges, both as a candidate (calling the judge in the Trump University case “Mexican” and “a hater”) and as President (“so-called judge” among numerous others). Some — I’m one — would say that this is among Trump’s very worst and most damaging patterns of behavior.

But as cooler heads noted, including Ruth Marcus of the Washington Post, the chief justice is not a playground proctor who can step in to write up every demerit; he needs to save his efforts for the instances that are most dangerous, as he in fact has done.

The wider picture, it might be noted, is one in which nasty swipes at judges have been routinized for years, from a range of public figures and also from former President Barack Obama, both in his 2010 State of the Union speech and also repeatedly during the court review of ObamaCare. Still, none of these have gone as far to suggest personal threat as did Schumer — not even the extraordinarily inappropriate amicus brief filed by Sens. Sheldon Whitehouse and four other Senate Democrats last August, assailing the Court’s legitimacy and warning that “restructuring” at the hands of political branches lies ahead if it does not mend its ways.

I conclude that Schumer needs to go back and apologize, seriously this time. And it’s time for all who’ve fallen short of defending judicial independence — Republicans and Democrats alike — to do so.

Every remaining major candidate vying to become a nominee for the U.S. presidency is a septuagenarian. While the aged field of candidates comes with its own set of concerns, it is a sign of the country’s progress toward keeping people alive and healthy for longer than ever before.

In the race for the highest office in the land, the so-called Silent Generation is making itself heard. Senator Bernie Sanders (D‑VT), the oldest candidate, is 78 years old, as is former New York mayor Mike Bloomberg, who dropped out of the race this morning. Former vice president Joe Biden is 77 years old. President Donald Trump is 73 years old. At 70 years old, Senator Elizabeth Warren (D‑MA) is the youngest of the major candidates. She was born in mid-1949.

Several major candidates have birthdays coming up before the Election Day. By November 3rd, Senator Sanders will be 79, President Trump will be 74 and Senator Warren will be 71 years old. Biden will turn 78 shortly after the election, on November 20th.

When the current President was sworn into office at the age of 70, he was the oldest president ever inaugurated in the United States. It looks like he or whoever assumes the presidency in 2021 will beat that record.

Even among the minor candidates still in the race, septuagenarians are represented. Former Massachusetts Governor Bill Weld, who is challenging the president for the Republican nomination in a protest campaign, is 74 years old. Congresswoman Tulsi Gabbard (D‑HI), who is polling at less than 2 percent nationally, is the only remaining candidate born after 1950. She is 38.

When the septuagenarian candidates were born, the polio vaccine was yet to be created, there were no commercial computers, no human being had yet been to outer space and interracial marriage was still illegal in several U.S. states.

In 1950, U.S. life expectancy stood at 68.2 years, according to the U.S. Center for Disease Control and Prevention (CDC). The U.S. life expectancy has soared since then and a temporary dip over the last couple of years due to the opioid epidemic has since reversed. The CDC’s most recent figures estimate that the U.S. life expectancy reached 78.7 years in 2018—an increase of 0.1 year from 2017. That means that just within the lifetime of Senator Warren, the youngest major candidate, U.S. life expectancy has expanded by over a decade.

“Healthy life expectancy” or the number of years one can expect to enjoy good health, has also increased significantly. An American can expect to enjoy around 68 and a half years of good health, on average, according to the World Health Organization’s most recent estimate, for 2016.

The actuarial tables suggest that whichever septuagenarian wins in November, he or she will likely survive the next four years. Based on the average for their age, that’s a 76.8 percent chance for Sanders; 79.2 percent for Biden; 84.8 percent for Trump and, reflecting that women tend to outlive men, a 91.8 percent chance for the relatively youthful Warren. Still, there is no doubt that the vice presidential candidates will matter more than usual this election cycle.

The country’s Founding Fathers likely could not have imagined a future with such remarkable longevity. The septuagenarian field of major candidates has sparked concerns over the state of the various candidates’ health and mental acuity. While those worries should be taken seriously, the fact that so many septuagenarians are running reflects the broader demographic trend of Americans living longer, healthier lives and remaining active for many more years—a fact that should be celebrated.

When it comes to the Supreme Court, it’s a fool’s errand to prognosticate. Take, for example, my post from last week.

Back then, I’d “read the tea-leaves” of the Court’s refusal to review Baldwin v. United States. Long story short: Baldwin had been the perfect vehicle for taking on the famed Chevron doctrine of obsequious judicial “deference” to an agency’s interpretation of the law. By passing on the case, I’d speculated “that Chevron reform is on the [Court’s] backburner.” To reach this conclusion, I had inferred much from Justice Gorsuch’s silence.

Well, it took a week to prove me wrong.

This morning, in a “statement” to an order with which he agreed, Justice Gorsuch went out of his way to announce that “Chevron [deference] has nothing to say about the proper interpretation of the law before us.” Again, there was no reason to bring this up.

He then proceeded to explain why the lower court was wrong to rely on the Chevron doctrine. For starters, the government expressly disavowed deference. Despite this concession, “the [appeals] court proceeded to uphold the agency’s new rule only on the strength of Chevron deference.”

Gorsuch further noted that the controversy entailed criminal sanctions and that deference is disfavored in this context.

Finally—and by far of greatest doctrinal importance—Gorsuch said the following:

And these days it sometimes seems agencies change their statutory interpretations almost as often as elections change administrations. How, in all this, can ordinary citizens be expected to keep up—required not only to conform their conduct to the fairest reading of the law they might expect from a neutral judge, but forced to guess whether the statute will be declared ambiguous; to guess again whether the agency’s initial interpretation of the law will be declared “reasonable”; and to guess again whether a later and opposing agency interpretation will also be held “reasonable”? And why should courts, charged with the independent and neutral interpretation of the laws Congress has enacted, defer to such bureaucratic pirouetting?

Here, Justice Gorsuch is getting at the crux of the problem with the modern leviathan. Now that policymaking flows primarily from the executive branch (rather than Congress), it follows that every presidential election initiates a tectonic shift in the federal regulations that affect every aspect of the economy and personal conduct. In turn, these endless flip-flop-flips are abetted by the Chevron doctrine. Gorsuch is implying that, at some point, these vacillations, per se, become unreasonable. At this point, Chevron would be unavailable.

Justice Gorsuch concluded by noting the Court does not suffer from a “lack of concern” over these issues. Which is basically the opposite of what I said last week, though I’m happy to be wrong.

What does it all mean? Notwithstanding last week’s misfire, I’m again going to channel Carnac the Magnificent. From my vantage point (this week), it doesn’t appear as if the Court wants to take on Chevron directly; rather, the Court seems to be open to narrowing the doctrine.

To this end, Justice Gorsuch indicates some potential limits. For example, Chevron might be denied where the government forsakes it, or where criminal sanctions apply. While these would be welcome reforms, Gorsuch lends tantalizing hints of a much bigger limitation, one that would profoundly change the administrative state for the better. Namely, he suggests that Chevron may be unwarranted where the government’s interpretation ushers in the umpteenth reversal in a major regulatory policy.

Thanks to the Constitution’s federalist structure, America has fifty administrative states in addition to the federal leviathan.

Sometimes, state and federal governments jointly administer “cooperative federalism” programs established by Congress and state legislatures, such as the Clean Air Act or Medicaid. More often, state regulatory agencies implement local regulations, independent of the federal government. Here, the quintessential example is zoning.

These programs, in turn, engender controversies that go before state courts. Thus, administrative law develops independently in each state.

Take Chevron deference, the most famous principle in (federal) administrative law. Under the Chevron doctrine, Article III courts yield to an agency’s interpretation of the law—including the scope of the agency’s own authority—even if the court thinks that it has a better reading of the statute.

At the state level, however, only a subset of courts has adopted a Chevron-like approach to statutory interpretation.

In a landmark 2008 article, Michael Pappas surveyed state courts to discern how they interpret laws that empower regulatory agencies. Many such courts review statutes as a blank slate, without any deference to government agencies. Others were deferential. A couple courts operate anti-deference doctrines; that is, they expressly discourage reliance on an agency’s interpretation of the law. In short, there is a great deal of variety in approaches.

Of course, legal doctrine is fluid. It’s always changing. Which brings me to what’s going on in Mississippi.

In 2008, when Pappas performed his survey, he described Mississippi courts as affording “strong deference” to a state agency’s statutory interpretation—stronger than even Chevron.

But the state’s supreme court pivoted 180 degrees a decade later in King v. Mississippi Military Department. In that case, the court unanimously ended the practice of giving deference to state executive agencies’ interpretations of statutes.

Now, the court seems to have its eyes set on another major deference doctrine. Up to this point, I’ve been discussing statutory interpretations. Yet agencies also interpret their regulations, which have the force and effect of law (just like a statute).

Judicial deference to an agency’s regulatory interpretations is even more controversial than statutory deference. With either doctrine, courts arguably abdicate their duty to “say what the law is.” But regulatory deference further offends our constitutional structure by allowing the rule-writer to serve as the rule-interpreter.

While the Mississippi Supreme Court gives this kind of deference–for now–change is on the horizon.

Last week, in Central Mississippi Medical Center v. Mississippi Division of Medicaid, three judges on the court announced that the “practice of the courts deferring to an executive-branch interpretation of agency regulations should end.”

Though the three judges were in the minority, the politics of the decision indicates that their argument enjoys momentum. As a general matter, progressives support deference, while conservatives oppose these sorts of doctrines. In this context, it is noteworthy that two of the court’s most liberal justices (Kitchens and King) were among the avowed opponents of regulatory deference. This strongly suggests that the doctrine’s days are numbered in Mississippi.

Were the Mississippi Supreme Court to jettison judicial deference to an agency’s regulatory interpretation, the justices would be following in the footsteps of the nation’s high court. Last summer, the Supreme Court gutted the doctrine at the federal level.