Monthly Archives: May 2020

In miniature, May 29

  • My law blog Overlawyered ceases publication this weekend after nearly 21 years, you can read its Maryland archives here;
  • How about “no.” Does “no” work for you? “Baltimore Wants To Sue Gun Makers Over Gang Violence” [Cam Edwards, Bearing Arms]
  • The environmental group fretted that suspending the bag tax will leave “the public with a false sense of security in encouraging single-use plastic shopping bags” which “are difficult to clean.” Yo, Sierra Club! That’s why they’re called “single-use” bags [Jim Bovard, American Conservative; Josh Kurtz, Maryland Matters]
  • Precinct-level reporting, confidentiality, ballots returned without signatures: the details of vote-by-mail (VBM) Maryland still needs to work out [Cheryl Kagan, Howard Lee Gorrell]
  • Some good ideas in here for your county or municipality, too: “D.C., Maryland Jurisdictions Start Deferring Taxes, Fees and Regulations” [Adam Pagnucco, The Seventh State]
  • Montgomery County development politics analyzed along the lines of the classic Bootleggers and Baptists model [Arnold Kling]

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In the FNP: “Why the ‘Reopen Maryland’ lawsuit failed”

A federal judge on Wednesday rejected the lawsuit filed by Del. Dan Cox challenging Gov. Larry Hogan’s public health orders seeking to limit the COVID-19 outbreak. I’m in today’s Frederick News-Post with an opinion piece on that. Excerpts:

In some other states, challengers have won rulings striking down at least some portions of state stay-home orders. But this suit’s claims failed all down the line, and here’s why….

In what you might call a long-shot move, Cox’s suit [sought] to minimize the seriousness of what it called the “alleged on-going catastrophic health pandemic” — which has killed more than 2,000 Marylanders so far — and drew sharp rebuke from the judge, who wrote: “even if these assertions were true, the plaintiffs ignore the likelihood that the restrictions that were put in place reduced the number of deaths and serious disability the State has experienced.”

In his statements outside the court, Del. Cox has told a radio audience that “ninety-nine percent of the population is not in danger with this virus,’ and has said on Twitter that ‘Studies show up to 70-86% of the public already have or had coronavirus.” Many medical authorities would sharply disagree with both contentions….

An unusual aspect of the suit was Del. Cox’s claim to have been personally threatened by an aide to Gov. Hogan. Shortly before filing the lawsuit Cox repeatedly asked the aide if he, Cox, could be arrested for speaking at a Reopen rally, and the aide answered that the delegate should read the text of the relevant order if he wanted to know what it said. Cox characterized this exchange as a threat. (No one was arrested for speaking at the rally.)

Judge Blake ruled that the restriction on large gatherings is what the law calls a ‘time, place, and manner’ restriction not based on the content of speech, noted that “there is no evidence that the order is being applied selectively to discourage speech that the Governor disagrees with,’ and summed things up: ‘the Governor has not silenced Cox or any other legislator.”…

The text of this lawsuit was full of rhetorical flights and digressions into points not germane to law. It appeared to be written with some audience in mind other than federal judges.

That’s one reason, when Cox takes the case to the Fourth Circuit federal appeals court — as he has vowed to do — he will find his work cut out for him.

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District 4, we have a problem

As mentioned last week, I’ll be having more to say about the lawsuit filed by Delegate Dan Cox (R-4th), together with Dels. Neil Parrott and Warren Miller and plaintiffs that included business owners and clerics, challenging Maryland Gov. Larry Hogan’s actions in response to the “alleged on-going Catastrophic Health pandemic.” (Maryland Attorney General Brian Frosh has now filed a motion to dismiss in the suit.) In the mean time, however, Delegate Cox has been making quite a stir with his Twitter feed:

This tweet is spectacularly irresponsible; it’s just shocking. I wasn’t the only one who thought so, either. WTOP picks it up (“Maryland Del. Cox appears to promote Bill Gates coronavirus conspiracy theory”), linking to me and to Republican strategist Frank Luntz (“If you want to be a respected leader, you must lead intelligently. This Maryland state legislator is doing the exact opposite of that.”)

This is only one of a series of dubious pronouncements from Del. Cox in recent weeks. On April 21 he asserted that “Studies show up to 70-86% of the public already have or had coronavirus so of course increased testing will increase cases.”

Up to 70-86%? Really? As you can see above, Cox was immediately challenged by reporter Evan Lambert of Fox5 DC, and the following exchange resulted:

The most charitable interpretation of that exchange is that Del. Cox very badly misunderstood the point of the Science magazine article referenced. Serological studies had already begun to come out then, and have continued to arrive since, indicating that public exposure to the virus is far below 70-86%, and likely in single digits.

On May 4 Del. Cox appeared on WFMD’s Bob Miller show in Frederick, where he said (at 2:00): “we do know that the vast majority, ninety-nine percent of the population, is not in danger with this virus. And that’s the science, it’s not, you know, politics speaking, that’s the science.”

That “99 percent” not in danger wasn’t a slip of the tongue, I think, since Del. Cox repeats it at 17:00 in the interview. And saying that 99 percent of the population is not in danger with this virus — that is, that only one percent of the population does have anything to fear — is again false and, as health advice, horrendously bad.

Delegate Cox’s Twitter response to me is here.

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Dels. Cox, Parrott, Miller sue Hogan over pandemic measures

Yesterday Delegate Dan Cox (R-4th), together with Dels. Neil Parrott and Warren Miller and plaintiffs that included business owners and clerics, filed a lawsuit challenging Maryland Gov. Larry Hogan’s actions in response to the “alleged on-going Catastrophic Health pandemic” — nice touch, that “alleged.”

Del. Cox might want to be more careful with the cut-paste button next time, to judge by this excerpt from p. 82 of his complaint.

excerpt of lawsuit against Maryland governor mistakenly using name of Virginia governor

The new complaint is here (more papers); I’ll have more to say about it later. Earlier, I posted in this space about some of my disagreements with Del. Cox’s interpretations of Maryland statutes and of the U.S. Constitution. Yesterday, and not specific to Maryland, I published this article on why most of the public health orders issued against COVID-19 are constitutional — in the view of today’s judges, judges of the pre-New Deal era, and framers of law at the time of the adoption of the U.S. Constitution.

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