Pun Salad

Say this for President Joe Biden: He's willing to admit that the actions of his own administration might not always pass the constitutional smell test. Speaking to reporters this week, Biden announced that a new federal eviction moratorium was coming soon from the Centers for Disease Control and Prevention (CDC). "The bulk of the constitutional scholarship says that it's not likely to pass constitutional muster," Biden acknowledged. "But there are several key scholars who think that it may and it's worth the effort."

A majority of the U.S. Supreme Court is likely to agree with the bulk of scholars that Biden declined to heed. On June 29, a 5–4 Supreme Court let the previous CDC nationwide eviction moratorium remain in place until it was set to expire on its own on July 31. Four justices—Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett—would have blocked the moratorium then and there. The swing vote was cast by Justice Brett Kavanaugh, who voted to let the moratorium remain in place, but only because "the CDC plans to end the moratorium in only a few weeks…and because those few weeks will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds." However, Kavanaugh stressed, "in my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31."

Joseph Zeballos-Roig of Business Insider reports that the new rule “carries steep criminal penalties for individual landlords who break the law”: a “potential $100k fine and 1 year in jail if eviction doesn’t result in death” and “up to $250k fine and 1 year in jail if evicted person dies.”

Counterpoint: No, it doesn’t. Because it’s not, in fact, “the law.”

The Constitution tells us that the federal government makes “the supreme Law of the Land; and the Judges in every State shall be bound thereby.” Typically, this means that the courts of all sorts are obliged to follow the rules that have been set or delegated by Congress. In this case, though, those courts are not obliged to follow anything, because they’re bound only by “the supreme Law of the Land,” and because the CDC moratorium, which has no constitutional or statutory basis — and which has been rejected by the highest court in the country — isn’t a law. Among those who can safely ignore the moratorium are everyone: landlords, collection agencies, the police, state legislatures, governors, the media — everyone. There are, of course, an enormous number of laws that Americans do have to follow, but this isn’t among them, because unlike those laws, this isn’t a law. It doesn’t count. It isn’t authentic. It has no force. It’s a dead letter. At best, it’s a wish; at worst it’s theater; but what it is most certainly not is — yes, that’s right — a law.

One of the themes I’ve come back to many times in my writing is the idea that people mistake empirical claims (this is true about the world) with normative claims (this should be true about the world). Nowhere is this more clear than with “hate speech” and censorship. I think hate speech laws are politically and morally wrong, a normative claim, but more importantly they don’t work, an empirical claim - one which if true renders normative claims that hate speech laws are good irrelevant.

The debate about whether we should censor unpopular views such as hate speech is an important one, but also a strange one. In my experience, it operates wholly independent from any consideration of the restraints of reality. People debate only on the level of the highest principle; everything is a referendum on the mores of democracy. They are all should questions - should we erode the right to free expression in the name of protecting minority groups from psychic harms? Should we prohibit the use of certain offensive terms? Should we declare some political positions out of bounds in public society? But all of these normative questions depend on the answers to empirical questions that preempt them, “cans” that come before “shoulds.” Can we actually protect minority groups from psychic harms through laws intended to limit speech? Can we actually prevent people from using offensive terms in any practical and meaningful sense? Can we actually limit political positions, given that they have a tendency to be reworded or rebranded and that trying to restrict them tends to feed them as they bubble under the surface?

As noted yesterday, Moderna has a new reformulated booster that basically stops the Delta variant in its tracks. If we could get this booster out into people’s arms now, vaccinated and not yet vaccinated, we could crush this Delta wave fast.

But we won’t be able to get this booster out into people’s arms fast. It’s in a phase-two trial, which means it still has to get through phase three. The phase-three trial for Moderna’s first vaccine began July 27, 2020, and cut off data collection on November 25, 2020; the company announced the results of the phase-three trial on December 31, 2020. That’s about four months of testing.