I’ve got a piece in The Dispatch this morning. Excerpt:

Governments around the country have been directing medical providers to allocate potentially lifesaving COVID therapies among patients on the basis of race, a policy that is almost certainly unconstitutional as well as morally open to question.…

For those late to this controversy, here’s a few examples of how the preferences work. In dispensing the scarce kind of monoclonal antibody that is known to retain broad effectiveness against COVID, for example, the Minnesota Department of Health prescribed a point system in which BIPOC [black, indigenous, person of color] status was worth 2 points, the same as diabetes or age greater than 65. New York state adopted a similar policy of racial discrimination in making available the breakthrough antiviral Paxlovid: access to the drug would depend on having some risk factor for severe illness, but nonwhite status would count as such by itself, whereas white patients would have to demonstrate some extra factor putting them at risk. A Utah state framework for dispensing monoclonal antibodies “gives ‘non‐​white race or Hispanic/​Latinx identity two points, more than hypertension or chronic pulmonary disease,” reports Aaron Sibarium of the Washington Free Beacon, who has broken several stories on the issue. Further, the federal Food and Drug Administration has also issued influential guidance promoting racial preferences.…

I’ve been writing about this problem for a while, including pieces back in 2020 when the question was one of racial preferences in the distribution of vaccines as distinct from therapeutics. As I noted back then, the Fourteenth Amendment provides that:

citizens of all races are entitled to the equal protection of the laws. The Supreme Court has long interpreted this to mean that the government may ordinarily not dole out valuable benefits, or impose harms, based on a citizen’s race.

Courts thus apply “strict scrutiny” to any race‐​conscious law or policy, requiring proponents to show that it fulfills a “compelling purpose” for the government and is “narrowly tailored” to achieve that purpose, tests that this policy would be unlikely to pass.

There are a few major exceptions but they do not apply here. Compensatory preference is OK when there has been recent, systemic discrimination against a minority group by the same level of government that wants to adopt the preference. (Inequality by itself, even when traceable to society‐​wide discrimination, isn’t good reason.)

And while race can indeed correlate with COVID-19 vulnerability through the proxy role of factors like low socioeconomic status, diabetes, and asthma, courts expect government decisionmakers to make dispensing decisions based on these factors directly, rather than relying on generalizations based on race.

Much of my Dispatch piece is devoted to a critique of an Associated Press article that presents a misleading account of the controversy, quoting only once and briefly from anyone opposed to the policies — a mistaken assertion by cable host Tucker Carlson — while ignoring substantive criticism from both health and legal quarters. Why can’t the press do better?

On Friday, I wrote about the ambiguity in Gov. Glenn Youngkin’s executive order forbidding mask mandates in Virginia schools, which appeared to apply to both public and private institutions. That morning Cato Center for Education Freedom staff called the Virginia Department of Education asking for clarification, because we had seen no explicit public statement that the order included private schools. Yesterday we received confirmation that the order is, indeed, intended to apply to private schools.

This is bad news. If you want to empower parents—all parents—as Gov. Youngkin suggests he does, the way to do it is not to cut off their schooling options. But that is what this order does, saying private schools—chosen schools—cannot have policies that at least some parents want. In this case, full masking to minimize the threat of COVID-19.

As we at Cato’s Center for Educational Freedom have pointed out—and much of the country seems to have recognized—COVID-19 has been a perfect example of why choice is necessary. Diverse families have myriad needs, fears, and desires, and only choice enables them to get what they believe they need without having to impose on others. That is an immensely valuable thing that needs to be greatly expanded, not constrained, especially by executive fiat.

On November 5, 2021, the Occupational Safety and Health Administration issued an emergency temporary standard (ETS) requiring businesses with 100 or more employees to enforce a vaccination-or-testing regime. The Supreme Court has already stayed the ETS pending further litigation, but OSHA is still treating it as a proposed permanent rule, so Cato filed a comment on that proposal.

The arguments for why the ETS goes beyond OSHA’s statutory authority, violates the major questions and nondelegation doctrines, and has other defects of administrative and constitutional law, have been spelled out in detail elsewhere, including by the Court itself, so our comment focuses on how arbitrary and capricious the ETS is in ignoring natural immunity and the effects of vaccination on Covid-recovered individuals, as well as on the weakness of the communitarian argument for mandatory vaccination.

Universal vaccine mandates are irrational in ignoring naturally acquired immunity from infection and recovery, which has come to be referred to as “natural immunity” in public discussion. This single-minded focus on vaccination as the exclusive means to acquiring immunity is largely novel. Contrary to conventional belief, states typically do not have “vaccine” requirements for children to attend school or any other purpose; they require evidence of immunity to certain viruses, whether through serological testing that evidences the presence of relevant protective antibodies or evidence of prior history “diagnosed or verified by a health care provider.” Virtually all countries in the Western world that impose some form of vaccine passport or mandate recognize natural immunity to Covid as qualifying for at least six months post-recovery.

If OSHA had reviewed the medical and scientific literature regarding the relative protective efficacy of natural immunity compared to vaccination, it is unlikely that the agency would be successful in establishing a factual basis for forced vaccination of Covid-recovered individuals. Given the trivial—if any—benefit to either the individual or the public from compelled vaccination of Covid-recovered individuals, that evidence of elevated adverse effects requires an especially high standard of proof by regulators to overcome.

As the Supreme Court noted in Washington v. Harper (1990), in light of the Constitution’s elevated protection of bodily autonomy, any compelled medical treatment must not only be necessary to protect the public but “in the [individual’s] medical interest.” This admonition was echoed in Sell v. United States (2003), where in a case involving forced administration of antipsychotic drugs to enable a criminal defendant to stand trial, the Court held that a treatment may be compelled if it is “medically appropriate, is unlikely to have side effects that may undermine the fairness of the trial and, taking account of less intrusive alternatives, is necessary to further important governmental trial-related interests.”

In light of the clear equivalence (or superiority) of natural immunity in protection against infection and transmission, the lack of any demonstrable benefit to Covid-recovered individuals from a full course of vaccination, and the well-established evidence of elevated adverse effects, any failure to recognize natural immunity as qualifying under any vaccine-mandate regulation would render that rule arbitrary and unconstitutional.

Essentially the second major thing that Glenn Youngkin did when he took over Virginia’s governorship was issue an executive order – number two on the list – requiring that parents be able to choose whether or not their children wear masks in school to mitigate the spread of COVID-19. The guiding principle was clear – parents should decide whether or not their children wear masks – but the result has been confusion and upheaval. Which is to be expected when a central authority – heck, one person – makes a decision for millions of diverse people and hundreds of communities.

There was little question Youngkin’s order would upset a lot of Virginians. While those who oppose mask mandates seem to get more attention than those in favor, the latter is almost certainly more numerous.

There does not appear to be any Virginia polling since Omicron became the dominant COVID-19 variant, but a late-August Monmouth University poll found that 67 percent of Virginia parents favored a state requirement “that students, teachers, and staff…wear face masks.” 30 percent disapproved. Given the Omicron tidal wave, approval of masking mandates has most likely risen since that survey was taken. But even if it has not, a large share of parents almost certainly still wants mandates. Whipsawing from the state requiring school masking to banning school mask mandates was bound to upset a lot of parents. And it has.

Several school districts, in particular larger, more urban ones such as Alexandria City, Fairfax County, and Richmond are vowing to defy the executive order. A group of parents in Chesapeake is suing to block it. And no doubt lots of parents across the Commonwealth are worried about the prospect of some – maybe many – kids in their children’s schools walking crowded halls, eating lunch, and playing in gym class sans masks as COVID-19 continues to infect tens of thousands of Virginians every day.

Of course, parents who oppose masks in schools have plenty of solid reasons for doing so. There is hardly definitive evidence that masking in schools works, and at the very least masks make it harder for kids to talk to teachers, teachers to talk to kids, and kids to speak with each other. And that would get even more difficult if everyone were required to wear thicker N95 or KN95 masks, versus cloth masks that we are now being told are worthless.

With these competing and mutually exclusive opinions – if you think universal masking is necessary for safety you cannot accept masking choice – held by large chunks of parents, what is a governor to do?

First, though far from perfect, is allow decisions to be made at the local level. Communities in Virginia are diverse – see the voting map – and more local decision-making means policies more likely to reflect the will of more Virginians.

But what about families who find that what their community’s public schools decide is unacceptable? Why should they suffer?

They should not. But the only way for individual families and educators to get the policies they desire without having to impose them on others is school choice. Unfortunately, Youngkin’s executive order has muddied that, too.

It is unclear whether the order applies just to public schools or to all schools. As highlighted below, one part of the order refers just to “school,” without specifying public or private, while another part may refer to educators who are state authorities, perhaps meaning public school employees. A reasonable interpretation – and the safest for private schools – is that where the order does not specify “public,” or some such term, it applies to all schools.

If that is right – if the order is supposed to apply to all schools – the Youngkin administration seems to misunderstand how empowering all parents, not just some, works: All must be able to make decisions for themselves, not have government pick winners and losers.

If the order is not intended to apply to private schools, then it was poorly written and needs to be clarified. And that would still point to the danger of centralized decision-making, with an error throwing an entire state, rather than a single community or school, into confusion.

Either way, setting policy by gubernatorial dictate is a bad way to go.

It was good to see President Biden finally acknowledge yesterday what anyone in America with a school-age child, job in a front-facing industry, or overseas travel plans has known for months: U.S. policy regarding COVID-19 testing has been a piping hot mess. What the president didn’t mention, however, was that the administration’s most recent plan for at-home rapid tests — announced in December in response to extreme public frustration about empty drug store shelves and long testing lines — was actually Biden’s sixth promise to subsidize and plan our way to testing abundance via the type of “industrial policy” that’s all the rage in Washington these days. Nor did the president note that the biggest impediment to American testing abundance hasn’t been a lack of subsidies for domestic manufacturing capacity, but instead the Food and Drug Administration’s onerous standards and processes for approving rapid tests — one of which (from MIT lab E25Bio) was reportedly ready in March of last year.

As I explain in Barron’s today, the United States’ continued rapid testing situation is not only a frustrating look at failed political promises and persistent regulatory sclerosis, but also a cautionary tale for U.S. industrial policy advocates:

Since September, even as the Delta variant raged, the FDA has approved only a handful of additional tests. Two of those [emergency use authorizations], moreover, came only in late December pursuant to the administration’s “accelerated” process—one that still took several months, even though the applicants were large, reputable foreign producers whose tests were long ago approved elsewhere. Given the Omicron variant’s speed and the basic logistical hurdles to getting newly-approved tests into Americans’ hands, the current surge may be over before the administration’s latest policy moves can have an impact. Having more rapid tests in February 2022 may be useful for future outbreaks, but we really needed them months ago.

America’s continued testing scarcity has real and unfortunate consequences.… However, in this debacle lies a valuable lesson for American policymakers who today promise to revive domestic production of “critical” goods using the same types of industrial policies that fared so poorly for rapid tests during the pandemic. These advocates claim that various “market failures” require government interventions to boost national production and achieve strategic national objectives. They ignore, however, the current government policies thwarting those goals; how simply removing regulatory, trade, and other restrictions could rapidly achieve them; and the resources wasted by government attempts to use industrial policy to reinvent the free market’s wheel.

In the testing debacle, all three errors came to life. The Biden administration wasted 11 months and countless taxpayer dollars trying to boost domestic test production when what was most needed was to remove existing regulatory barriers and let the global economy do its thing. Indeed, that’s just what E25Bio’s chief researcher did after abandoning her quest for FDA approval. Instead, she worked to provide cheap, reliable rapid tests to high-risk American communities. She successfully flooded her local test market with $2 tests as good FDA-approved $20 ones by using imported “experimental” tests authorized abroad but not here at home. No grand industrial policies needed.

Like I said, lessons abound. You can read the whole thing here.

Secretary of Housing and Urban Development Marcia Fudge tweeted last week: “The United States is the only major economy in the world where the economy as a whole is stronger now than before the pandemic.”

It’s not clear what triggered her statement. Real GDP has been higher than its pre-COVID peak in the U.S. since mid-last year and the U.S. is not the only country to have surpassed that threshold.

Perhaps there’s another explanation. Fudge’s tweet reminded me of the IMF forecast that the U.S., unlike other major countries, could even have higher GDP at the end of 2022 than was predicted back in 2019. Maybe that’s what Fudge meant?

If so, let’s put aside whether the previous or most recent forecasts would have or will prove accurate. The bigger issue, as I explained in Economics In One Virus, is that GDP is a very flawed metric for judging economic welfare when so many of our social liberties and economic choices or ambitions have been constrained.

Suppose GDP really does end up marginally higher at the end of 2022 than would have happened absent COVID-19. To echo Justin Wolfers: which world would Americans prefer to have lived in? The one predicted before the pandemic with slightly lower GDP this year? Or having higher GDP in 2022 but having endured “fewer jobs, more unemployment, more inflation, more government debt, more bankruptcies, worse schooling, less access to healthcare, worse mental health, greater illness and [more than] 800,000 lost souls”?

The answer, I suspect, is obvious. The pandemic and much of the policy reaction to it has been incredibly destructive. Even if measured GDP does exceed pre-pandemic expectations this year, we should not fall for a broken windows fallacy. By restricting our liberties, constraining our market choices, and worsening our health, a broader conception of economic welfare suggests this experience has made us much, much worse off.

Trying to predict Supreme Court rulings based on oral arguments is a risky proposition, but the writing that was on the wall on Friday did indeed make it onto the pages of today’s opinions in the federal vaccine-mandate cases.

It’s not surprising that the justices blocked the federal mandate for private-sector workers to get vaccinated or get weekly COVID tests on their own time and dime. After all, even if we accept federal regulation of workplace safety as constitutional, there’s a difference between occupational risk and the general risk of living in a pandemic.

“OSHA’s indiscriminate approach fails to account for this crucial distinction,” the Court majority wrote, “and accordingly the mandate takes on the character of a general public health measure, rather than an “occupational safety or health standard.” Moreover, as Justices Gorsuch, Thomas, and Alito pointed out separately, the federal government lacks a general police power, so statutory text better be clear and explicit when an agency purports to read it as assigning massive regulatory authority—what’s known as the “major questions doctrine”—which is certainly not the case here.

As to the healthcare-workers mandate, that’s a closer call because it’s a question of what kind of strings the federal government can attach to its own program funds—here Medicare and Medicaid—and through what processes it attaches those strings. The Court ruled 5–4 (with Chief Justice Roberts and Justice Kavanaugh joining the Court’s progressive wing) to allow this mandate to stand, at least on a temporary basis while litigation continues in the lower courts—but the four dissenting justices make a strong case that the federal agency overreached here too. As Justice Thomas wrote, “the Government had found virtually unlimited vaccination power in definitional provisions, a saving clause, and a provision regarding long-term care facilities’ sanitation procedures,” but that regulatory patchwork wasn’t exactly a specific power to impose vaccines across facilities.

In any event, the Court today showed that it’s possible to take statutory limits on federal power seriously, not just constitutional ones. To those who accept that basic premise, it’s no surprise that OSHA’s vaccine mandate went the way of the CDC’s eviction moratorium.

For more, listen to my Cato Daily Podcast — recorded yesterday but eerily tracking today’s outcomes.