Wednesday Writs: Quarantine Edition
Quarantine notice and city ordinance restricting landings of steamboats or other water craft at or near Cape Girardeau, October 8, 1878 [Public Domain]
L1: For over a century spanning the late 1700s through early 1900s, the city of New Orleans battled the periodic scourge of the mosquito-borne disease, Yellow Fever. The illness claimed the lives of thousands. Some years were particularly bad, such as 1853 when it claimed the lives of 8000 of the city’s residents. Once the mosquito was identified as the cause of the transmission, the incidence of disease slowed and then ceased1.
In the meantime, the city reeled with economic struggles after each outbreak, with businesses closing, unemployment up, services reduced and overwhelmed. In an effort to contain the disease, quarantines were declared in various localities in Louisiana, especially near the coast, an authority given to the state Board of Health by law. In addition to keeping the infected from leaving their parish or town, the statute also declared “The State Board of Health may, in its discretion, prohibit the introduction into any infected portion of the state, persons acclimated, unacclimated, or said to be immune when in its judgment the introduction of such persons would add to or increase the prevalence of the disease.” So, no one out, and also no one in.
In 1898, the same year the law was passed, the ship Brittania made its way to the Port of New Orleans, by way of France and Italy, with passengers and cargo, having been verified as disease-free at a quarantine station prior to reaching New Orleans. There were 408 passengers, some of whom were US citizens, and some of whom were not. Despite having been declared free of infectious diseases, the Board of Health refused to allow the passengers to disembark or for the cargo to be unloaded:
Referring to the detention of the S.S. Britannia at the Mississippi River quarantine station, with 408 Italian immigrants on board, I have to inform you that, under the provisions of the new State Board of Health law, section 8, of which I enclose a marked copy, this board has adopted a resolution forbidding the landing of any body of people in any town, city, or parish in quarantine. Under this resolution, the immigrants now on board the Britannia cannot be landed in any of the following parishes of Louisiana, namely: Orleans, St. Bernard, Jefferson (right bank), St. Tammany, Plaquemines, St. Charles, or St. John. You will therefore govern yourselves accordingly.”
The edict cited a resolution from the Board of Health, which invoked the authority given to it by the new statute and “Resolved, That hereafter in the case of any town, city, or parish of Louisiana being declared in quarantine, no body or bodies of people, immigrants, soldiers, or others shall be allowed to enter said town, city, or parish so long as said quarantine shall exist, and that the president of the board shall enforce this resolution.”
Furthermore, said the Board of Health agent, if the ship would attempt to dock anywhere near New Orleans, that area would be declared in quarantine as well. The ship was forced to sail on to Pensacola, Florida to unload.
The company operating the Britannia, Compagnie Francaise de Navigation a Vapeur, felt as though the ship was being singled out by the actions of the Board and filed suit. The plaintiffs argued that since the Board was imposing no such restrictions on Italian immigrants who docked in New York and came to Louisiana by rail, the Board’s edict was unfairly targeting their ship (for reasons that are not clear.) The company asked for an immediate restraining order of the Board’s actions, but the court denied their request.
The company claimed the Board’s actions violated federal law and claimed damages incurred from having to reroute to Florida and sought around $10,000. The Board moved to dismiss the case for lack of cause of action, and the motion was granted. The dismissal was upheld on appeal in the Supreme Court of Louisiana, giving rise to our case of the week, Compagnie Francaise de Navigation a Vapeur v. Louisiana State Board of Health.
Justice White wrote for the Court. The plaintiff argued that the statute in question violated the constitution because it gave a state regulatory board the power to interfere with interstate commerce. The Court recognized the interest of states in protecting its citizens and managing disease via quarantine. So while the Court could not deny that the law necessarily affected commerce, it did not find it an improper usurpation of federal power, unless and until Congress imposed quarantine laws of its own which were incongruous with those of the state.
The Court also rejected the contention that the law violated international treaties by disregarding the certification by France that the ship was disease free. The treaty in question arose from the Louisiana Purchase, and obligated the United States to treat France “upon the footing of the most favored nation in the ports of the ceded territory”. The US had a treaty with Greece which provided for the reciprocal acceptance of documentation of a ship’s lack of contagion. The Louisiana Purchase agreement would require France to be given the same consideration. But the Court disagreed, holding that even accepting the argument that France must enjoy the same benefit as Greece, the treaty in question expressly provided for the imposition of quarantine.
Finally, the Court was likewise unpersuaded by an argument that the state’s quarantine law violated US immigration law. The decision of the state Supreme Court was therefore upheld.
L2: Questions loom about the delayed elections in the midst of COVID-19. Here’s what the Supreme Court has had to say about the authority of state governments over national elections– spoiler alert: not much.
L3: Maryland prepares to arrest those in violation of the governor’s shutdown orders.
L4: In Kentucky, a man who tested positive for COVID-19 says he won’t comply with quarantine – his house is now guarded by armed law enforcement to keep him inside.
L5: Martial law: What is it and how do current state actions compare? What it isn’t: a new Eminem album.
L6: Ohio’s primary election postponement will likely be battled out in court.
L7: “Criminals, could you maybe not right now?” – Colorado Sheriff.
Mark Cuban is being surprisingly good about not only economics, but on policy, on the twitters.
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The antipathy towards stock buybacks is just ignorant. It’s also bizarrely selective. I never hear anything about how awful dividends are, but buybacks and dividends are just alternative ways to return cash to investors. The difference is that all stockholders get dividends, whereas you have to opt in to buybacks. For long-term investors, buybacks are preferable, because you don’t have to take a tax hit if you don’t take the buyback.
Given that buybacks favor people who hold on to stocks, it’s weird that the people buying into buyback hysteria are largely the same people talking about how awful it is that nobody holds stock long-term anymore and everyone’s focused on short-term returns nowadays.
Sorry, I’m being facetious. It’s not actually weird. There’s an obvious explanation for this, which is that those people have no idea what they’re talking about, and are just regurgitating talking points that make them feel good.
Anyway, if you’re going to say a corporation can never ever buy back stock, then you also have to say they can never issue dividends. Otherwise what’s the point? But now we have a problem: Stock in a corporation that can never return profits to investors is worthless. All of a stock’s value is premised on the possibility of actually getting cash out at some point in the future.
Also, buybacks and dividends are both ways to get cash out of mature corporations that don’t have good reinvestment opportunities and get it into corporations that do. The tax code already strongly encourages reinvestment of profits (recall Old Man Sanders yelling at Amazon for reinvesting aggressively enough to reduce their federal income tax liability to zero for a few years), so if a corporation is returning cash to investors instead of reinvesting its profits, it probably has a pretty good reason.Report
The antipathy towards stock buybacks is just ignorant.
Really? In my experience, I’ve never met or read anyone criticize stock buy-backs (or dividend payments) except in contexts like the one we’re currently in: profitable companies which would otherwise be flush with cash asking government for bailouts.Report
Add: that’s not entirely true, now that I think about it. The anti-capitalism Berner-types complain about buy-backs as further (compelling!) evidence that the business of businesses is making money for shareholders ….Report
Huh. I see it all the time. A bunch of the Democratic candidates this time around had anti-buyback policy proposals. Even Cory Booker, who I thought was better than that, got in on it.Report
OIC…
I think you’re confusing what you called “antipathy” towards stock buy-backs with policy proposals intended to distribute some of those profits to employees. Eg., Booker (I’m sure) understands that buy-backs are a perfectly legitimate way for investors to increase the value of their shares. His objection isn’t to buy-backs, but the absence of profit-sharing for workers, and buy-backs are an entry point to achieving that end.
Seems to me anyway.Report
I think it’s the whole “socialize the losses, privatize the profits” that people oppose.
If you “bail out” the airlines and then they finally find themselves flush with cash and then, after giving people money, they find that they need more money?
Well, you’re going to find yourself in a situation like this one.
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I think the issue raised in the Atlantic article here is more about how stock buybacks enrich CEOs who are enriched by such actions because their compensation has become more aligned with stock value than earnings. The issue really then comes down to different forms of CEO compensation, with different incentives.
I don’t agree with Mark Cuban for two reasons: one can’t pass a law today that binds future lawmakers and a lot of states are dependent on stock values to pay pensions and other investments they make on behalf of its citizens.Report
Yes, that.
Stock buybacks are a great way to _manipulate_ stock prices. The only thing they’d theoretically be ‘useful’ for is to have less outstanding stock so the value of each individual stock is more, which might be useful if a stock has somehow ended up at $10 a share or something and it would look better if they were closed to $50 each….but that’s not actually what they’re used for, and that can be done with a reverse stock split.
But a reserve stock split is obvious when it’s needed, and…sorta indicates mismanagement, because the company issued too much stocks or its value dropped quite a lot, and this not really common.
Buybacks, in the current world, are basically just used to manipulate stock prices, bumping a stock from $62 to $63 or whatever. And the thing about manipulating stock prices is it is a _really_ good way to transfer money from poorer and less knowledgeable and institutional investors into a few very rich people, including CEOs. In fact, we used to know buybacks were manipulative and forbid them. The stock market is a zero-sum game (The market itself, not the companies in it), and it’s a zero-sum game that the people who can afford to pay attention have a distinct advantage at, and hence it’s a good idea to ask questions about why the hell any particular ability exists within it.
Companies want to return profits to people, they _have_ a way to do that.. A straightforward, upfront way to that, called dividends, that get issued directly to stockholders, no complications whatsoever. Doing it _any other way_ should automatically be suspicious. Especially in a way that varies the return people get based on their market knowledge.Report
Although honestly we could stop all this nonsense dead in its tracks if, instead of ‘forbidding’ stock buybacks, we just made sure that literal _everywhere_ that had some amount of stock written into it scaled with ‘total stock issued’. I.e., instead of basing anything on the the stock price, base both the thresholds and bonuses on the actual market cap of the company…which is normally reflected in the stock price, but when the amount of stock changes, duh, you need to recalculate those levels!
I.e., if some CEO has X amount of stock options, and the company buys back 3% of its stock…oops, they now only have X*0.97 amount of stock options. And if the stock had to hit $Y a share to get a bonus, now it has to hit $Y*1.03.
This is entirely reasonable. Stock buybacks don’t make the company better off, which is supposedly what is being rewarded. It just consolidates the value of the company into slightly less shares. No CEO should get rewarded for that.
But for some completely inexplicably reason that’s never how the CEO contracts work…and I lie, because the reason is completely inexplicable, because a lot of boards are entirely happy with CEO that randomly manipulate stock prices…because they’re paying attention to the price and movement, and can make money if it moves without any good reason, especially if they can guess that in advance.
Vs. casual investors who maybe spent an hour on the weekend looking at it.Report
L1: I think the headline case illustrates the broad legal powers of state government in the face of contagion, greater than the federal governments, even when as here arguably touching on subjects with significant federal responsibilities like interstate commerce, immigration and foreign relations.
This case is pretty old, so maybe it doesn’t define the lines exactly where the courts might today, but this decision was made in the Lochner era, which is viewed today as having aggressively limited police powers of the state in favor of freedom of contract.Report
California Courts have essentially slowed down to “essential” services. I think this pretty much means trials that are already ongoing and/or felony criminal trials where the defendant did not waive his or her rights to a speedy trial. Almost everything else is being delayed by a period of 5 weeks to 90 days depending on the jurisdiction. Some courts are still doing hearings on motions but have gone to mandating telephonic for everything or nearly everything.
The California Supreme Court is staying put in San Francisco instead of hearing cases in Los Angeles and other parts of California as they did traditionally for parts of the year. All argument is done via video conference or telephone conference.Report
The local courts here are closed to all matters but (i) custodial felony, (ii) juvenile detention or custody, (iii) emergency orders of protection (iv) emergency orders pertaining to family matters and (v) rescission of DUI suspensions. Jury trials, civil and criminal, have all been postponed indefinitely. Seems the courts think that the constitutional and statutory speedy trial requirements don’t apply, which is interesting. All of this varies from circuit to circuit in Illinois, but mostly seems like the courts are heading to the same direction. Less interruption for appellate matters (videoconferencing), most federal court proceedings (except jury trials pushed back a month), and administrative law proceedings (which are mostly not in-person anyway).Report
I don’t do much fed court stuff these days. But it is going to create a back log overall. Good luck getting medical records from your subpoenas. Good luck getting doctor depos. Hell, some court reporters are switching to doing video conferences only.Report
After days of begging from the IJs, ICE lawyers, and immigration bar, the non-detained Immigration Courts are closed until April 10th. Detained immigration courts are still going on.Report
This is going to end bad:
https://www.nbcnews.com/news/us-news/florida-governor-refuses-shut-down-beaches-amid-spread-coronavirus-n1162226?fbclid=IwAR3M6XLqH1XZcP60EV5yKzKgGhc259xTb73RMO2TkJnwMIfvo6CCysuIj1cReport
Hasn’t anyone seen Jaws?Report
Is there much evidence for outdoor person-to-person transmission being a major problem?Report
Do we really want to risk it in the name of abstract thing? People aren’t going to stay on the beach forever. The young people on spring break will go back home. If they get infected on spring break, they will take it back home to them.Report
Coronavirus might be present in 19 senior care facilities in Florida:
https://www.miamiherald.com/news/coronavirus/article241296721.htmlReport
U.S. and Canada have closed borders. The question I have is whether it will be hard to open up the borders when the crisis passes.Report
L3: Given how much Maryland LEA like to use SWAT for little crap, and shoot people, I would not want to be in Maryland right now.Report
L6: I don’t know anything about the Ohio constitution and statutes. Off the top of my head I don’t think the governor in my state could lawfully order a delay in an election date. The separately-elected Secretary of State, as the top election official in the state, might. But because we are a vote-by-mail state, there are many dates specified in statute about what must be done when. The governor/SoS couldn’t just say “Election day is moved back three weeks.” They would have to specify how the entire election process is going to work, making up changes to statute as they went.Report
In Illinois, the state board of elections announced that they didn’t have authority to move the election date, that it is set by the legislature. They suggested that a court order could be sought by saying that they didn’t intend to seek one.Report
There were a number of jokes a week ago about how “there are no libertarians in a pandemic” but I’m seeing a lot of indicators that we’d benefit from having a couple.
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I know this is wildly optimistic, but my hope is that some governor (like Inslee, say) will give that guy the money to manufacture that equipment and *dare* the Fed Gov to enforce a stop-work order.Report
Fingers crossed. (I get the feeling that the permission is a bigger bottleneck than the money.)Report
Today at a press conference Trump said he was rushing production of Chloroquine, a fifty-year old anti-malarial which the Chinese, Japanese, French, and others have used quite successfully against the virus.
The FDA chief stepped up and said it would actually be a year because it’s got to go through the approval process and be tested to gather data to see if it works here. He’s a fine example of an “expert” whose expertise is being stupid and delivering failure.
I guess he thinks biochemistry works under a different set of physical laws in North America, or maybe he thinks our American diets make our bodies so different from French and Asians that their real-world experience treating actual patients might as well be a mouse study. But the truth is likely that he can’t see beyond FDA procedures and rules, and would rather have a million Americans die horrible twitching deaths than risk getting called out for violating the spirit of a sub-paragraph of a footnote in an obscure FDA regulation that sits on a shelf full of ring binders.
Thankfully, Trump will simply overrule him, since Trump is not only willing to fire anyone, he’s willing to humiliate them as he does it.Report
Someone on the twitters said something to the effect of:
We’re in the middle of discovering “Money Isn’t Real”. Soon we’ll discover “Laws aren’t Real”.
Somewhere in between those two is “Regulations Aren’t Real”. I hope we can get to that one and then stop.Report
Indeed. Apparently lots of regulations are now being discarded at the state and federal level because they’re in the way.
And a 34-year old California man died from the virus after visiting Disney World in Orlando.Report
Fake COVID-19 test kits seized at LAX
https://wgno.com/news/health/coronavirus/fake-covid-19-test-kits-seized-at-lax/
So, these regulations banning non-approved test kits, are they real?Report
Televangelist Jim Bakker sued for selling fake coronavirus cure
https://www.cbsnews.com/news/jim-bakker-coronavirus-covid-19-fake-cure-televangelist-sued-by-missouri-symptoms-selling-treatment/
Here’s a question:
How do we know that his cure works, or doesn’t?
What makes it “fake”?Report
I’m guessing that the only “real” tests are the ones available to the NBA.
In that vacuum, I imagine we’ll see a lot of things rushing in.Report
I’m sure China is flooded with fake test kits, probably made from fake rhino horn, food coloring, arsenic, and lead. It’s how they roll.Report
Stephan Hahn, head of the FDA, said he would not confirm a timeline but, given the drug was already approved for other usages, researchers already had information about possible side effects. He said the initial approval phase was done quickly but the testing phase was now getting underway.
“I want to assure you we’re working as quickly as we can, I don’t want to speculate about a timeline,” he said, adding that the FDA was “looking at everything that’s coming across our desks as possible treatment options for coronavirus.”
Hahn said the drug would be initially used under “compassionate use,” which means doctors can ask to use the experimental drug on patients. The FDA can then gather data on its safety and efficacy from doctors ahead of a full-scale approval. “We are working expeditiously,” he said.
He said the president had directed the agency to take a closer look at whether the use of chloroquine could be expanded more widely beyond compassionate use.
“And again we want to do that in the setting of a clinical trial,” he said. “A large, pragmatic clinical trial to actually gather that information and answer the question that needs to be asked and answered.”
So, the FDA is allowing its use in limited settings so as to figure out if it even works or not, then will expand the usage if it works.
Seems reasonable to me.Report
We already know it works because the French, Japanese, and Chinese have figured out that it works and published results on it.
One of the bureaucratic nightmare’s of the FDA is that foreign testing and experience is treating like garbage and FDA testing protocols are ridiculously expensive and time consuming, so there are plenty of drugs available in Europe and Japan that we can’t get here.Report
Godzilladamn, politics makes people stupid.
From a tweet, UW is already using Hydroxychloroquin for all pts in with COVID in hosptial. Hopefully it works as well as studies suggest.
Again for people in the cheap seats. Once a med is safe and legal to use, docs can prescribe what is called off label use. This means they can prescribe it for reasons other then it’s initial use. The two anti malarials in question have been in use for decades with known safe dosages and adequate supplies. Docs can use them now. We still need more testing though for a variety of issues.
https://mobile.twitter.com/ArunRSridhar/status/1239989367822639104Report
We got into this thing back with the Epipens, remember?
How we had weaponized our skepticism with regards to whether we could trust the European FDA and how we couldn’t really read anything into how they approved 8 Epipens and we only had one approved?
We need a more European health care system, Greg.Report
Chloro has shown some positive resuts which is great. It doesn’t need to be approved by the FDA to be used. Docs have been prescribing drugs off label for decades. It happens everyday for many meds. Docs can use it now if they want. The issue is whether is works and the initial results are promising. They need to keep testing to know if/how well it works.
If trump was going to do something there is list of things he isn’t: get the Army COE building hospitals, rushing production of respirators/PPE and he could be getting all the fishing tests we need. We isn’t he getting the FDA out of the way to get the tests now if he has that power.Report
The Corps of Engineers will be great if we happen to get hit with floods during this crisis, but their expertise isn’t hospital construction. In fact, the military doesn’t have much of a skill set there. They do small field hospitals for young and otherwise healthy trauma victims. The can throw up lots of cots in tents, but then who can’t?
The Navy’s hospital ships are set up for handling injured people, not airborne contagion victims, and Navy officials say they’d be viral-incubating Petri dishes just like the cruise ships were. And that gets us a couple of thousand extra beds, at most.
And he’s already handled the respirator and test kit issues. The high-volume high-speed test kits have been flooding out from a wide variety of testing companies. Roche started shipping 400,000 test kits almost a week ago. On Monday the home test kits start shipping.
Getting the CDC red tape out of the way has proved crucial. Perhaps they should just focus on their core mission, fighting racism and gun violence, and leave epidemic response to others.Report