Tag Archives: public health

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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At-home COVID-19 test available in 46 states, but not Maryland. Why?

Following FDA approval, LabCorp has now introduced an at-home test for the COVID-19 virus. It will initially be made available to health care workers and first responders in 46, but not all 50 states — the missing states being New York, New Jersey, Rhode Island, and Maryland. The reason, according to an Associated Press report, is that several states have laws on the books that restrict testing with at-home collection kits. I examine the frustrating situation in a new Cato post.

After I published the piece, I was contacted by Paul Celli, public health administrator for clinical and forensic laboratories at the Maryland Department of Health Office of Health Care Quality, who wrote to say the AP article is incorrect in listing Maryland as a state that bans at-home testing. Whatever may be the situation in the other three states, “Maryland is not banning this Pixel at‐​home collection device (it is not a test) for use at select Labcorp testing locations.” A Maryland legislative source points out that last year, state lawmakers approved and Gov. Hogan signed SB 495, a measure aimed at liberalizing access to medical testing by removing some of the restrictions in effect earlier. Mr. Celli writes that even before that change, rather than bar use of this particular test the state “probably would have exercised enforcement discretion in such cases where the company appears to be providing services pursuant to a physician or other authorized provider order for the test.”

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Delegate Dan Cox is wrong on Gov. Hogan’s coronavirus orders

Delegate Dan Cox (R-Emmitsburg), one of the three delegates representing my own District 4, wrote a letter on Thursday to Gov. Larry Hogan demanding that Hogan stand down from some of the measures he has ordered “allegedly because of an ongoing health catastrophe with coronavirus.” (The “allegedly” gave me pause — is Del. Cox suggesting that the ongoing health catastrophe might not be real, or that Gov. Hogan is somehow using a real catastrophe as a pretext?)

In his letter, Del. Cox suggests that Title 14 of the Maryland Public Safety Code does not confer an emergency power of isolation or control over “healthy persons,” although the wording of § 14-3A-03 contains two passages that would appear to do exactly that. One of them (§ 14-3A-03 (d)(2)) is: “If necessary and reasonable to save lives or prevent exposure to a deadly agent, the Governor may order individuals to remain indoors or refrain from congregating.” A second provision (§ 14-3A-03 (b)(3)(iv)) empowers the governor to require individuals to go into isolation until a designated official determines that they do not “pose a substantial risk of transmitting the disease or condition to the public,” a wording that does not apply only to persons themselves sick.

The letter also suggests that the governor’s emergency powers do not extend to businesses not involved in health care, although a section of the Title on emergency health measures addressed to the public (§14-3A-03 (d)(1)) provides that he “may order the evacuation, closing, or decontamination of any facility.”

Del. Cox further asserts that Gov. Hogan has “unilaterally suspend[ed] the Bill of Rights,” a remarkable and disputable claim.

Del. Cox’s letter invokes the U.S. Constitution. I myself have written and spoken a fair bit about how the U.S. Constitution applies in outbreaks of contagious epidemic (the Framers were very familiar with such outbreaks and with the measures taken in response.) I strongly disagree with Del. Cox’s repeated suggestion that the measures are likely violations of the constitution.

Today, Del. Cox was on social media promoting the Annapolis demonstrations demanding relaxation of social distancing in the state, among whose targets is Gov. Larry Hogan.

I am a registered voter and constituent in District 4, and I can state that in doing all of this Del. Dan Cox does not represent my views.

Update: Steve Bohnel of the Frederick News-Post now covers the story in a front-page article and the paper also has published an editorial, both kind enough to quote me.

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Guest on Conduit Street podcast: “Liberty in Trying Times”

I joined hosts Michael Sanderson and Kevin Kinnally on the Maryland Association of Counties’ popular Conduit Street Podcast, which has a large circulation among civically-minded Marylanders and national reach as well. Our talk ranged widely over legal and governmental aspects of the COVID-19 pandemic emergency, including government’s emergency powers, and how they sometimes don’t go away when the emergency ends; the role of the courts, both during the emergency and after it ends, in enforcing and restoring constitutional norms; contrasts between the state and federal handling of the crisis; and the opportunity this provides (and has already provided) to re-examine the scope of regulation, which has been cut back in many areas so as to allow vigorous private sector response in areas like medical care, delivery logistics, and remote provision of services.

Their description:

On a special bonus episode of the Conduit Street Podcast, Walter Olson joins Kevin Kinnally and Michael Sanderson to examine the role of state and local emergency powers in the fight against the COVID-19 pandemic.

Walter Olson is a senior fellow at the Cato Institute’s Center for Constitutional Studies. a libertarian think tank in Washington, D.C. A resident of Frederick County, Olson recently served on the Frederick County Charter Review Commission. Olson has also served as the co-chair of [the Maryland Redistricting Reform Commission, created in] 2015.

MACo has made the podcast available through both iTunes and Google Play Music by searching Conduit Street Podcast. You can also listen on our Conduit Street blog with a recap and link to the podcast.

You can listen to previous episodes of the Conduit Street Podcast on our website.

You can listen and download here (40:04).

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Frederick County health director Barbara Brookmyer discusses COVID-19

Frederick County, Md. health director Barbara Brookmyer joins host Michelle Perez Newman for a third show to discuss the COVID-19 outbreak. Questions include: Who is currently getting tested, given low test capacity? How safe is it for kids to have playdates? (Alas, not very.) How do the symptoms differ from those of the flu? What rules should you follow if someone in your household gets sick? Brookmyer is a respected figure and this 30 minute show should interest national as well as Maryland listeners. Previous shows ran on March 7 and Feb. 21. More recent Brookmyer appearances: Frederick News Post, Frederick County Public Schools.

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Easing license burdens for the duration

I’ve got a new post at Cato on steps taken by Massachusetts Gov. Charlie Baker and Maryland Gov. Larry Hogan to ease licensing burdens for the duration of the COVID-19 emergency. Baker announced that a state board would shorten to one day the approval needed for medical professionals licensed in good standing in other states to practice in Massachusetts. On the Maryland steps, I summarize thus:

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.

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On the Howard County Unsweetened campaign

According to coverage at places like NPR and CNN, an innovative campaign in Howard County, Maryland “provides a road map for other communities to reduce consumption of sugary drinks.” Not so fast, I argue in my new Washington Examiner piece: the suburban county in question is not remotely typical of America as a whole, the Howard County Unsweetened campaign blurred public and private boundaries in a dubious way, and the whole enterprise generated a deserved political pushback. While the plan, promoted by the local Horizon Foundation, might not have been all bad, “it sowed divisiveness, put government resources to improper purpose, and rested on a premise of frank paternalism. When it arrives in your community, you might want to respond as you might to a second pitcher of cola — by pushing it away with a polite, ‘no thanks.’” [cross-posted from Overlawyered]

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