LAW&CRIME

Court Slaps Down Drilling Ban in Big Win for Trump and Fracking Interests

by Colin Kalmbacher | 2:58 pm, March 27th, 2020

The White House notched a significant victory against environmental advocates on Friday after a federal court determined the Bureau of Land Management (BLM) did not violate the law by tossing a regulation against oil and gas exploration on public and tribal lands.

The U.S. District Court for the Northern District of California rubbished concerns leveled by the State of California and the Sierra Club in two separate but related lawsuits that BLM’s 2017 abandonment of a 2015 rule ran afoul of the Administrative Procedure Act (APA), National Environmental Policy Act (NEPA), and Endangered Species Act (ESA).

Specifically keyed toward hydraulic fracturing, or fracking–a process which uses various combinations of water, sand and chemicals to create and enlarge existing fractures underground–the 2015 rule was intended “as a much-needed complement to existing regulations designed to ensure the environmentally responsible development of oil and gas resources on Federal and Indian lands, which were finalized nearly thirty years ago, in light of the increasing use and complexity of hydraulic fracturing coupled with advanced horizontal drilling technology,” according to the prior administration’s BLM.

The court summed up the now-discarded Obama era regulation:

First, the 2015 Rule updated…well construction and testing requirements to ensure best practices for casing and cementing wells and “protect and isolate all usable water zones, lost circulation zones, abnormally pressured zones, and any prospectively valuable deposits of minerals.” Second, operators were required to use storage tanks instead of pits to “reduce…the potential risk to surface and groundwater resources,” as well as provide environmental benefits for wildlife. Third, the 2015 Rule provided greater oversight and information to BLM by requiring that operators seek approval for all hydraulic fracturing operations, instead of only “non-routine” operations. Finally, operators were required to disclose the chemical additives used for hydraulic fracturing by submitting the information to an independent organization, FracFocus, which had an existing database and provided “the quickest, most cost-effective way to make the information public.”

Litigation swiftly followed–initiated by states whose politicians have been politically captured by the oil and gas industry. Then, in 2017 the Trump administration quickly moved to rescind the rule.

First, President Donald Trump issued an executive order calling on all administrative agencies to reconsider rules and regulations related to the production of energy. The next day, then-secretary of the Interior Department Ryan Zinke dutifully complied by issuing an order which claimed “[the 2015 Rule] is unnecessarily duplicative of state and some tribal regulations and imposes burdensome reporting requirements and other unjustified costs on the oil and gas industry.”

The plaintiffs collectively argued that BLM had violated environmental rules under NEPA, failed to consider the rule change’s impact on wildlife under the ESA and that the basic decision to alter the rule was “arbitrary and capricious.”

Per the Supreme Court:

Normally, an agency [decision] would be arbitrary and capricious if the agency has [1] relied on factors which Congress has not intended it to consider, [2] entirely failed to consider an important aspect of the problem, [3] offered an explanation for its decision that runs counter to the evidence before the agency, or [4] is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Judge Haywood S. Gilliam Jr. tidily dismissed all of those concerns.

First, the judge found that “NEPA does not apply” to the facts of the case and easily ruled in BLM’s favor because the 2015 rule never actually took effect and therefore “the environmental status quo was not altered by” the Trump’s 2017 rule change.

The ESA decision relied simply upon taking BLM’s words at face value.

Judge Gilliam writes:

[T]he Court must review the entire administrative record, with a particular focus on the final representations BLM provided in the Repeal. BLM’s final position was that the Repeal would have no effect on threatened species on BLM lands, and the Court finds that there is a rational connection between this position and facts presented in the record.

As for the arbitrary and capricious charge, Gilliam accepted the administration’s argument that they had been motivated by a desire to cut enforcement costs for the agency and pointed to the Interior Department’s “cost-benefit analysis” to support the ruling.

“In summary, BLM met the requirement of providing a ‘reasoned explanation’ for why it is changing course after the nearly five-year long extensive rulemaking that resulted in the 2015 Rule,” the order notes. “Although BLM could have provided more detail, it did enough to clear the low bar of arbitrary and capricious review, and that is all the law requires.”

[image via via NICHOLAS KAMM_AFP via Getty Images]

Republicans Go for Obamacare’s Jugular Amid Spiraling Coronavirus Pandemic
by Colin Kalmbacher |  March 27th, 2020 LAW&CRIME 

Texas Attorney General Ken Paxton (C) walks to a news conference outside the Supreme Court on Capitol Hill on June 9, 2016 in Washington, D.C.

As the novel Coronavirus (COVID-19) spreads to an unknown degree, Republican attorneys general are moving forward with efforts to dismantle the Affordable Care Act, otherwise known as Obamacare.

Former vice president and freshly embattled Democratic Party presidential candidate Joe Biden recently forced the issue in an open letter addressed to various red state top cops, Mississippi Governor Tate Reeves (R), and President Donald Trump.

Urging the GOP to drop their ongoing litigation against the majority-approved health care law, Biden cited the national struggle against the fast-spreading contagion as a key reason to abandon their efforts. The letter explicitly tied the crisis to that courtroom battle:


At a time of national emergency, which is laying bare the existing vulnerabilities in our public health infrastructure, it is unconscionable that you are continuing to pursue a lawsuit designed to strip millions of Americans of their health insurance and protections under the Affordable Care Act (ACA), including the ban on insurers denying coverage or raising premiums due to pre-existing conditions.

Republicans issued their own harsh assessments of that letter.

“It’s shameful that the former VP of the United States would play crass politics during a national crisis,” Georgia Attorney General Chris Carr said in a statement provided to Yahoo Finance on Friday. “Republican AGs will continue to uphold the constitution, fight to protect those with pre-existing conditions and ensure better healthcare outcomes for the American people.”

Louisiana Attorney General Jeff Landry also took aim at the Democratic Party frontrunner: “Joe Biden is attempting to play politics right in the middle of a pandemic. His letter to President Trump on the legal issues surrounding the Affordable Care Act is not only in poor taste but also uniformed. A federal court has already ruled that the ACA is unconstitutional. It is critical the Supreme Court finish its review.”

The litigation in question–stylized as Texas v. Azar in the lower courts and as California v. Texas in consolidated Supreme Court parlance–hinges upon the argument, first advanced by Texas Attorney General Ken Paxton, that since the deeply unpopular individual mandate provision of Obamacare was stripped of its enforcement mechanism via the 2017 Tax Cuts and Jobs Act, that penalty is no longer a tax.

And, lower courts have held, without a tax that “produces at least some revenue” for the government, the mandate is unconstitutional. If the mandate itself is unconstitutional, Paxton and 17 other GOP attorneys general argue, the entire bill must be struck down–including popular provisions unrelated to the mandate–because the mandate is an integral aspect of the overarching legislation.

The U.S. Court of Appeals for the Fifth Circuit agreed with Obamacare’s opponents in a controversial decision issued late last year on the grounds–noted above–that the mandate “can no longer be read as a tax, and there is no other constitutional provision that justifies this exercise of congressional power.”

The ball is now in the Supreme Court’s hands and Obamacare advocates aren’t particularly optimistic about the law’s chances before a conservative majority that includes Trump appointees Neil Gorsuch and Brett Kavanaugh.

Paxton dismissed Biden’s letter as a nakedly political act.

“It’s unfortunate that a former Vice President would choose to play petty politics during a global crisis,” Paxton told Yahoo Finance on Friday morning. “Nevertheless, the facts are that Obamacare resulted in higher costs, fewer choices and a power imbalance between the people and their government. Even the mandate at its core was declared unconstitutional by a federal district court and affirmed by the U.S. Court of Appeals for the Fifth Circuit.”

[image via Gabriella Demczuk/Getty Images]

OPINION
Texas Just Tried to Use COVID-19 to Stop Most Abortions, And Its Reasoning Is Totally Absurd
by Elura Nanos | March 27th, 2020 LAW&CRIME 



You’d think a pandemic would be the one clear time we could all come together on the importance of having control over one’s own body. In Texas, that not so. The Lone Star State just used the COVID-19 crisis to block most abortions, and the whole thing is a Texas-sized mess of illogic and exploitation that seriously pushes the boundaries of belief.

Texas Governor Greg Abbott ordered a ban on surgeries and medical procedures as a means of preserving medical resources during the coronavirus pandemic. The order directs “all surgeries and procedures that—as determined by a patient’s physician—are not immediately medically necessary to correct a serious medical condition of, or to preserve the life of, a patient who without immediate receipt of such care would be at risk for serious adverse medical consequences or death.” The order applies to all licensed health care practitioners and facilities in the state of Texas. Procedures that are excepted from the order are those that, if performed normally, would not deplete the hospital capacity or the personal protective equipment (PPE) needed to respond to the pandemic.

All of that makes sense. Hospital beds, PPE, and lifesaving medical equipment are in short supply; now is not the time for people to be getting nose jobs or routine colonoscopies.

The Texas Medical Board (TMB) clarified that “elective, non-urgent cases” are cases where, “there is no anticipated short-term nor long-term negative impact because of delaying a procedure or surgery,” such as “screening for a chronic condition or most cosmetic procedures.”

By contrast, TMB defined “urgent or elective urgent” procedures as those where “there is a risk of patient deterioration or disease progression likely to occur if the procedure is not undertaken or is significantly delayed.” And of course, TMB points out that procedures should be performed if putting them off would likely result in any decline in a patient’s health “could make them more vulnerable to COVID-19 and other issues.”

Again, all of that makes sense and sounds medically reasonable. Anything that can safely be delayed to post-global medical disaster should be. Frankly, it’s stupid that we need a governmental directive to know this is what should be done.

Things went haywire, though, when Texas Attorney General Ken Paxton issued an explanatory press release where he singled out abortion providers and declaring that any non-emergency abortions would violate the order. And he warned that “[t]hose who violate the governor’s order will be met with the full force of the law” threatened criminal penalties, and even up to 180 days of jail time.

Apparently, there is a lot about abortion which has left Paxton and other Texas officials confused. First, there’s the issue of logistics. Most abortions are performed in clinics – not in hospitals. Many are performed “medically” – meaning via the woman ingesting a medication. Such abortions have precious little to do with preserving hospital beds or ventilators. But then there’s the larger issue that I cannot even believe I need to spell out: a woman who is denied an abortion will eventually have a child. This means ongoing prenatal care, childbirth, postnatal care, and a newborn infant. Childbirth does usually happen in a hospital, does tax medical resources, and does require PPE. And that doesn’t even take into account whatever horrors await if birthing mothers are exposed to COVID-19 in the hospital. The suggestion that abortions will strain the healthcare system, but that unwanted pregnancies and new births will not, is patently absurd.

Planned Parenthood sued in federal court on behalf of a group of Texas reproductive health clinics on Wednesday seeking a court order to keep the state’s abortion clinics open. Nancy Northrup, head of one legal nonprofit joining the lawsuit, called Texas’s directive to halt most abortions “unconscionable.” Northrup said Paxton “is exploiting this pandemic to end abortion in the state.”

“The Texas Attorney General’s enforcement threats are a blatant effort to exploit a public health crisis to advance an extreme, anti-abortion agenda, without any benefit to the state in terms of preventing or resolving shortages of PPE or hospital capacity,” the lawsuit said. “As a result of these threats, this week Plaintiffs have already been forced to turn away patients in need of time-sensitive care.”

“Abortion does not require extensive use of PPE,” the complaint continued. “Providing patients with pills for medication abortion does not require the use of any PPE.”

The plaintiffs then spelled out the pragmatic argument against Texas’s directive:


Not only will these patients be deprived of their constitutional right to essential healthcare and self-determination, but forcing them to continue their pregnancies will in fact impose far greater strains on an already-taxed healthcare system, as prenatal care and delivery involve much greater exhaustion of hospital health care services and PPE than abortions. All will be delayed in getting the abortion care they are seeking, with attendant risks to their health, wellbeing, and economic security.

[Photo by Gabriella Demczuk/Getty Images.]

This is an opinion piece. The views expressed in this article are those of just the author.

Ethics Watchdog: Jared Kushner’s ‘Shadow’ COVID-19 Task Force Appears to Violate at Least Two Laws

Jerry Lambe LAW&CRIME 3/28/2020

In addition to being tasked with negotiating a Middle East peace plan, President Donald Trump’s son-in-law and senior advisor Jared Kushner earlier this month formed his own task force to assist the administration’s response to the COVID-19 pandemic. The Kushner “shadow taskforce”–comprised of government officials and private sector advisors–is primarily focused on expanding access to coronavirus testing, but has the coalition been violating federal laws aimed at ensuring government transparency and accountability?

© Provided by Law & Crime

Citizens for Responsibility and Ethics in Washington (CREW) said as much on Friday. According to the group, Kushner’s team, which exists independent of the Trump administration’s official coronavirus task force headed up by Vice President Mike Pence, appears to be in violation of the Presidential Records Act (PRA) and the Federal Advisory Committee Act (FACA).

“Mr. Kushner’s shadow task force appears to be violating key aspects of the PRA, and his use of it implicates the FACA’s public transparency provisions,” CREW Executive Director Noah Bookbinder wrote in a letter to White House Counsel Pat Cipollone Friday. “The extraordinary measures needed to combat the coronavirus pandemic make these transparency and accountability requirements even more important.”

The PRA, enacted in the aftermath of the Watergate scandal, requires presidential administrations to retain all “documentary material” of “the activities, deliberations, decisions, and policies that reflect the performance of the President’s constitutional, statutory, or other official or ceremonial duties.”

“Of particular concern, these outside advisers do not appear to be following proper governmental protocols,” Bookbinder continued. “For example, they are using private email addresses to email large groups of government employees, creating security concerns and sowing further confusion.”

The group also highlighted likely violations of FACA, which requires committees with non-governmental employees that advise the president to publicly disclose “records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by” them.

“If this reporting is accurate, Mr. Kushner’s use of a committee composed of federal employees and non-governmental members to solicit advice on how the White House should address the coronavirus pandemic implicates the FACA,” the letter said. “The failure of the White House to comply with any of the FACA’s requirements leaves the public in the dark about the advice the shadow task force has rendered and whether the committee is ‘fairly balanced’ as the statute requires.

You can read the full letter to Cipollone below.

CREW Letter by Law&Crime on Scribd

Trump OKs Michigan disaster declaration, Whitmer says it's 'a good start'

Paul Egan, Detroit Free Press 3/28/2020

President Donald Trump has approved Michigan Gov. Gretchen Whitmer's request for a federal major disaster declaration related to the coronavirus, the White House announced Saturday.
 

© Provided by Detroit Free Press Gov. Gretchen Whitmer

Whitmer said in a news release she appreciates the approval as "a good start," but said the federal government has not approved Michigan's request in full.

Separately, Whitmer announced Saturday that Michigan has received a shipment of 112,800 N95 masks from the strategic national stockpile, with an additional shipment of 8,000 masks on the way.

The approvals came despite Trump's public complaints as recently as Friday that Whitmer has not shown sufficient appreciation for what his administration has done to fight the pandemic. Trump attacked Whitmer on Twitter Friday and said on Fox News Thursday that Whitmer's criticism of federal planning and action has not been "pleasant."

The major disaster declaration through the Federal Emergency Management Agency makes the state eligible for statewide crisis counseling and provides funding for state, tribal, and eligible local governments and certain private nonprofit organizations for emergency protective measures, including direct federal assistance, the White House said in a news release.

Whitmer said Michigan requested much more.

"While Michigan made a broad request for aid in every individual assistance and public assistance program from the individual assistance category, funding was approved for the crisis counseling program and funding for emergency protective measures from the public assistance category was also approved," Whitmer said.

“This is a good start, and it will help us protect Michiganders and slow the spread of COVID-19,” she said.

“I’m hopeful that the president will review my request for individual assistance programs that would provide meals to families who need them and rental assistance and temporary housing for families. I look forward to the federal government’s continued partnership as we work to fight this virus.”

Whitmer said Thursday she had sent the disaster declaration request to FEMA, one day after the Free Press revealed that Michigan had not yet made such a request, despite the fact several other states had already received major disaster declarations from Washington, D.C.

Whitmer said Thursday that if her request was granted in full, it would help the state provide meals, rental assistance and temporary housing, mental health therapy and counseling, and "much-needed additional capacity" as the state's health care system struggles to keep up with the expanding coronavirus pandemic in Michigan.

On Saturday, Whitmer said the crisis counseling program the White House approved provides services for those whose mental health has been impacted by the spread of COVID-19.

The federal government also granted Whitmer's request for emergency protective measures, including funding for transporting and positioning equipment, Michigan's emergency operations center, medical supplies and personal protective equipment, medical care and transport, and childcare, Whitmer said. The governor’s request for hazard mitigation assistance to help provide relief during planning for recovery is under review, she said.

Whitmer said the relief package approved by Congress Friday will provide relief in some of the requested areas of individual assistance, including unemployment insurance and nutritional food assistance under the Stafford Act. But she said FEMA can also provide aid in these areas where they do not overlap with existing programs.

Michigan requested assistance for both disaster unemployment assistance and nutritional food assistance that have not yet been approved, she said.

Michigan has the fifth-most cases of coronavirus in the nation, with more than 3,600, and at least 92 deaths, as of Saturday.

The Trump administration has already declared major disasters for states and territories including New Jersey, Florida, Iowa, Louisiana, New York, California, Washington, South Carolina, and Puerto Rico.

Whitmer has been critical of a lack of federal preparation for the pandemic and what she has said is a lack of a national strategy and inadequate assistance in helping Michigan and other states procure needed test kits, masks, gloves, personal protection equipment, hand sanitizer, ventilators, and other items.

Friday night on Twitter, Trump said: "I love Michigan," and although the White House was doing a great job helping the state, "your Governor, Gretchen 'Half' Whitmer is way in over her head, she doesn’t have a clue. Likes blaming everyone for her own ineptitude!"

Earlier, at a White House briefing, Trump said that Vice President Mike Pence, who is in charge of the coronavirus response, calls all the governors, but Trump tells them not to call the governors of Michigan and Washington state, who have been critical of him.
I love Michigan, one of the reasons we are doing such a GREAT job for them during this horrible Pandemic. Yet your Governor, Gretchen “Half” Whitmer is way in over her head, she doesn’t have a clue. Likes blaming everyone for her own ineptitude! #MAGA— Donald J. Trump (@realDonaldTrump) March 28, 2020

"I want them to be appreciative," Trump said.

Whitmer has said she is not trying to get into a fight with the White House and there must be "all hands on deck" to fight the coronavirus.

The arrival of 112,800 masks from the federal government Saturday is "great news for our front line health care workers,” Whitmer said. “We’ll keep working hard along with FEMA and the White House to get more of the personal protective equipment we need to keep Michiganders safe.”

Trump to Mike Pence: 'Don't call the woman in Michigan,' aka Gov. Gretchen Whitmer

David JacksonMichael CollinsUSA TODAY 3/27/2020

WASHINGTON – President Donald Trump said Friday he has asked Vice President Mike Pence not to call governors he says have not been "appreciative" enough of his efforts on coronavirus – a group of critics that included a governor he referred to only by gender,

"Don't call the woman in Michigan," Trump said at a press conference while discussing Pence's work as head of the White House Coronavirus Task Force.

That governor – Gretchen Whitmer – replied on Twitter that "right now, we all need to be focused on fighting the virus, not each other."

"I’m willing to work with anyone as long as we get the personal protective equipment we need for the people of Michigan," she said.

Harsh words:President Trump slams Gov. Whitmer as he weighs disaster request for Michigan

Trump told reporters that most – but not all – governors have been appreciative of his administration's response to the coronavirus pandemic.

"I want them to be appreciative," he said. "I don't want them to say things that aren't true."

Asked which governors he was referring to, Trump slammed Washington Gov. Jay Inslee, calling him “a failed presidential candidate.”

Whitmer, he said, “has no idea what’s going on, and all she does is say it’s the federal government’s fault."

It's not the first time Trump and Whitmer have clashed over the federal government's coronavirus response.

Earlier this month, Trump attacked Whitmer in a tweet after she told MSNBC that “the federal government did not take this seriously early enough."

During an interview with Fox New's Sean Hannity on Thursday night, Trump claimed the Michigan governor – whose name he forgot – is "not stepping up. I don't know if she knows what's going on. But all she does is sit there and blame the federal government."

"Hi, my name is Gretchen Whitmer, and that governor is me," Whitmer shot back on Twitter. "I've asked repeatedly and respectfully for help. We need it. No more political attacks, just PPEs, ventilators, N95 masks, test kits."

She added: "You said you stand with Michigan — prove it."

Trump said during the Fox News interview that he loves the people of Michigan and "Michigan is a very important state."

Indeed it is. The Trump campaign's 2016 victory in Michigan – the first for a GOP presidential candidate in that state since 1988 – helped provide him his margin of victory in the Electoral College. Michigan is a key state to his re-election.

Though Trump doesn't want Pence to talk to Whitmer, he suggested the vice president is unlikely to take that advice.

"He'll call quietly anyway," Trump said.

Contributing: Courtney Subramanian


Michigan Governor Claims Federal Government Told Vendors ‘Not to Send Stuff Here’

by Aaron Keller |  March 27th, 2020  LAW&CRIME


Gov. Gretchen Whitmer (D-Mich.) suggested Friday that President Donald Trump was too busy trashing her on Sean Hannity’s Fox News broadcast Thursday night to take her call about her state’s need for COVID-19 medical supplies. Whitmer also said someone — we’re not sure who — was interfering with Michigan’s ability to order supplies on its own:

We need assistance. When the federal government told us that we needed to go it ourselves, we started procuring every item we could get our hands on. But, what I’ve gotten back is that vendors with whom we had contracts are now being told not to send stuff here to Michigan. It’s really concerning. I reached out to the White House last night, asked for a phone call with the president, ironically at the same time all this other stuff was going on. The fact of the matter remains: we need help, and at the very least, we don’t need people standing in our way of getting it.

Appearing on CNN’s The Situation Room with Wolf Blitzer Friday evening, Whitmer said that a state-led “patchwork” attempt to secure medical equipment was prone to — and was indeed causing — trouble. “We’ve entered into a number of contracts, and as we are getting closer to the date when shipments are supposed to come in, they’re getting cancelled or they’re getting delayed. We’re being told they’re going first to the federal government,” Whitmer said of the supplies. She added that other local governments (such as Massachusetts and Los Angeles) were experiencing similar issues. “We are bidding against one another other . . . we are struggling to grab every PPE we get our hands on,” she said.

It was unclear who told the vendors not to send equipment and supplies, but the conversation on WWJ-AM, a Detroit news radio station, came after the hosts asked Whitmer to respond to comments Trump made Thursday evening on Hannity. Trump attacked Gov. Jay Inslee (D-Wash.) first while completely mischaracterizing a federal law which requires his administration to keep a stockpile of medical supplies “appropriate and practicable” to “provide for and optimize the emergency health security of the United States” during an emergency. (Law&Crime previously discussed that law here.)

“We’re really a second line of attack. The first line of attack is supposed to be the hospitals and the local government and the states, the states themselves,” Trump said. “We have people like Governor Insley — he should be doing more! He shouldn’t be relying on the federal government . . . he was a failed presidential candidate and, you know, he’s always complaining.”

“You have to understand, this has to be managed by local government and by the governors, it can’t be managed by the federal government,” Trump later said.

(Again, federal law requires the federal government to manage the so-called “strategic national stockpile” of medical supplies. Trump vaguely referenced the stockpile without naming it by saying there was a “broken chain” of “monster warehouses” and that he was “filling it up very strongly.)

From there, Trump shifted his attention to Gov. Whitmer: “Your governor of Michigan, I mean, she’s not stepping up, I don’t know if she knows what’s going on, but all she does is sit there and blame the federal government. She doesn’t get it done. And we send her a lot. Now she wants a declaration of emergency, and we’ll have to make a decision on that.”

Trump, perhaps realizing that Michigan gave him an electoral college win in 2016 but in 2018 elected a Democrat as governor, backed things up: “Michigan is a very important state; I love the people of Michigan, what they do. I’m bringing many, many car factories into Michigan, and she is a new governor, and it’s not been pleasant.” Whitmer took office on January 1, 2019.

“The federal preparation was concerning,” Whitmer said on the radio Friday. “All of our focus needs to be on COVID-19, right now, right here, and so I need partnership [from] the federal government … we have to be all hands on deck here.” Whitmer said she refused to engage in personal attacks and praised Vice President Mike Pence for working amiably with her.

On Fox News, Trump went back to complain about Insley but circled again to Whitmer. “We’ve had a big problem with, uh, the young — a woman governor — from — you know who I’m talking about — from Michigan,” said the president. Whitmer, speaking on the radio the next day, said she was being “uniquely singled out” among a chorus of complaining governors who are displeased with the federal government’s response to the COVID-19 pandemic.

It remains unclear who, precisely, the governor was referencing on the radio as attempting to stymie her ability to procure medical equipment. “The governor’s office could not provide any additional information Friday afternoon substantiating Whitmer’s allegation,” reported Crain’s Detroit Business. Crain’s was also not able to determine from the governor’s office the names of any vendors who backed out of helping the state. The governor’s office did tell Crain’s that Michigan needed 400,000 masks each day for at least the next several weeks to keep up with demand.

[Featured image by Bill Pugliano/Getty Images.]

[Editor’s Note: This piece has been updated to include additional comments from Gov. Whitmer’s CNN appearance Friday and to include a link to that appearance.]

Analysis: Virus pulls American federalism debate into 21st Century

By MICHAEL TACKETT, Associated Press 3/29/2020

WASHINGTON (AP) — A flu pandemic was ravaging the world, killing indiscriminately in almost every country, including more than 600,000 deaths in the United States. The states were in a panic, but there was almost no call for broad federal assistance — at least, not one heeded by the president.

© Provided by Associated Press FILE - In this March 19, 2020, file photo President Donald Trump attends a teleconference with governors at the Federal Emergency Management Agency headquarters in Washington. Trump has framed his fight against the pandemic as a war, and himself a wartime president. But rather than fully lever the power of the federal government, he has increasingly put responsibility on the states, reigniting the kind of tension the nation’s founders wrestled with more than two centuries ago. (AP Photo/Evan Vucci, Pool, File)

© Provided by Associated Press FILE - This 1924 file photo shows Woodrow Wilson. Wilson was more focused on the end of World War I than a flu virus that was making its way around the globe, ultimately sickening hundreds of thousands of Americans, including him. (AP Photo, File)

Woodrow Wilson did not address the nation on the subject of the pandemic of 1918-19 a single time. He did not call for Congress to act, and he did not summon the nation to unite. He had another battle to fight in trying to bring World War I to a close, even though the flu killed far more people. 

© Provided by Associated Press FILE - In this 1918 file photo made available by the Library of Congress, volunteer nurses from the American Red Cross tend to influenza patients in the Oakland Municipal Auditorium, used as a temporary hospital. Woodrow Wilson did not address the nation on the subject of the pandemic of 1918-19 a single time, he did not call for Congress to act and he did not summon the nation to come together. (Edward A. "Doc" Rogers/Library of Congress via AP, File)

While his posture on the flu seems passive, even reckless, in a modern light, Wilson's approach to war demonstrated an entirely different view of federal power than President Donald Trump's approach to the current pandemic. Wilson fully exploited the authority of the federal government, compelling rationing, propaganda and nationalizing the railroads, all directed at defeating Germany, not the virus.

The country, after all, was already accustomed to 100,000 deaths a year from the flu. There was a limited public health infrastructure. Use of vaccines remained uncommon, and therapies were often primitive. It wasn't that Wilson was restrained about using federal power; he simply had less precedent to lean on, and a much higher priority in the war effort.

Trump has framed his fight against the pandemic as a war, and himself as a wartime president. But rather than fully lever the power of the federal government, he has increasingly put responsibility on the states, reigniting the kind of tension the nation’s founders wrestled with more than two centuries ago.

The feud with states boiled over Thursday when Trump got into a contentious exchange with several governors. States are demanding more sweeping help from the federal government to battle an insidious challenge the founders never knew existed — a global public health crisis. It calls into question how well a system of federalism — where power is legally shared between a national government and the states — can work when the needs are so urgent and the politics so polarized.

© Provided by Associated Press FILE - In this November 1918 photo made available by the Library of Congress, a nurse takes the pulse of a patient in the influenza ward of the Walter Reed hospital in Washington. For President Woodrow Wilson, the pandemic was a case of first impression. The country was accustomed to 100,000 deaths a year from the flu. Widespread use of vaccines were not common. It wasn't that Wilson was restrained about using federal power, he simply had far less precedent to lean on, and a much higher priority in the war effort. (Harris & Ewing/Library of Congress via AP, File)

The virus has seeped into states blue and red, hitting Louisiana as hard as it's hitting California, and there are stark warnings coming from swing states like Michigan, Florida and Pennsylvania, too.

Most presidents before Trump have stipulated to “dealing with problems on a national level with national coordination,” said Jeffrey Engel, director of presidential studies at Southern Methodist University. Trump, he said, “for philosophical and political reasons,” is “taking a narrow view of what is his responsibility.”

“So even though Trump’s sense of federalism has historic precedent, and could be said to be closer to what the founders considered the proper division between states and the federal government — with the former having the lead responsibility for citizens' health and immediate well being — it is entirely out of step with almost every response we’ve seen from presidents facing crises in anyone’s living memory.”

© Provided by Associated Press FILE - In this March 27, 2020, file photo President Donald Trump listens before he signs the coronavirus stimulus relief package in the Oval Office at the White House in Washington. Trump has framed his fight against the pandemic as a war, and himself a wartime president. But rather than fully lever the power of the federal government, he has increasingly put responsibility on the states, reigniting the kind of tension the nation’s founders wrestled with more than two centuries ago. (AP Photo/Evan Vucci, File)

Still, Trump has in other contexts threatened to use federal power, as he did when he proposed intervention to stem homicides in Chicago, an improvisational foray on which he did not follow through.

When the country was founded, no one could have envisioned the speed and smallness of the world today. Yellow fever could be contained by isolating a city. It would have required nearly half a year to travel from Philadelphia to Wuhan, China, in 1787 instead of the single, air-carried, globalized day that it does now, Engel said.

“Given the speed and danger involved in issues large and small the founders never could have considered, I think the current pandemic requires a unified federal response,” Engel said.

One of the clearest measures of that would be Trump putting the Defense Production Act in full force to compel production of critical supplies. Wilson (during World War I) and Franklin D. Roosevelt (during World War II) did so without a law as the foundation for their action. On Friday, after repeatedly saying that he would spur private production through persuasion, Trump in effect ordered General Motors to make ventilators. “GM,” Trump said, “was wasting time.” But the company was already on that path.

No historical comparison is precise, but Trump and Wilson are the only American presidents to face serious national pandemics. The men were opposites in almost every way.

Wilson, a Southerner, was an intellectual, president of Princeton; Trump, a New Yorker, became president as a novice politician who said he relied on gold-plated instincts. Wilson wrote a book about constitutional government; Trump wrote “The Art of the Deal.” Wilson believed in deploying federal power, and he was also an avowed internationalist; Trump, who arrived in the presidency with limited ideological mooring, has renewed his call for stronger borders and immigration restrictions.

But Trump has also made clear that he believes states should shoulder responsibility. There is no mistaking his approach with Harry S. Truman's “the buck stops here" view of accountability.

“Governor Inslee, that's the state of Washington ... And you know, he's always complaining,” Trump told Fox host Sean Hannity on Thursday. “And your governor of Michigan, I mean, she's not stepping up.I don't know if she knows what's going on. But all she does is sit there and blame the federal government. She doesn't get it done. And we send her a lot.”

Wilson used another approach. “He definitely took a national viewpoint that the federal government was supreme to the states,” said Thomas Knock, a Wilson biographer and scholar. “He and Theodore Roosevelt reinvented the presidency that way."

Wilson pushed for the Federal Reserve, the Federal Trade commission, child labor laws and an eight-hour work day for railroad workers. During the war, he nationalized the railroads. The federal government had never played such an enormous role in the economy.

“He knew the federal government really was supreme over the states and that was the best way to transform American in light of the new industrial age,” Knock said

In his book, Constitutional Government in the United States, Wilson said, “The question of the relation of the states to the federal government is the cardinal question of our constitutional system. At every turn of our national development we have been brought face to face with it, and no definition either of statesmen or of judges has ever quieted or decided it.”

“It cannot, indeed, be settled by the opinion of any one generation, because it is a question of growth, and every successive stage of our political and economic development gives it a new aspect, makes it a new question.”

But when the flu started to sweep through the country in 1918, Wilson — a wartime commander-in-chief — did not see it for the threat it was. In that time, Knock said, there was a common expectation that the flu would kill Americans into the six figures and the pandemic came in waves.

“I don’t think it was much of a priority,” Knock said. “There was no precedent for that kind of public health role at the time.”

There is now. And it is testing the notion of federalism in ways not seen for more than half a century, with conflicts on open display almost daily — and, sometimes, evolutions in real time.

On Friday, Trump, through his seeming directive to GM and his signing of the government's largest relief effort, took a step toward an evolving view — perhaps even a Wilsonian one.

___

Michael Tackett, a deputy Washington bureau chief for The Associated Press, has covered American politics since 1986. Follow him on Twitter at http://twitter.com/tackettdc

Senator says White House turned down emergency coronavirus funding in early February

Suzanne Smalley AP 3/28/2020

WASHINGTON — Sen. Chris Murphy, a Connecticut Democrat, says that Trump administration officials declined an offer of early congressional funding assistance that he and other senators made on Feb. 5 during a meeting to discuss the coronavirus.

© Provided by Yahoo! News Sen. Chris Murphy, D-Conn., 

on Capitol Hill. (Jacquelyn Martin/AP)

The officials, including Health and Human Services Secretary Alex Azar, said they “didn’t need emergency funding, that they would be able to handle it within existing appropriations,” Murphy recalled in an interview with Yahoo News’ “Skullduggery” podcast.

“What an awful, horrible catastrophic mistake that was,” Murphy said.

On Feb. 5, Murphy tweeted: “Just left the Administration briefing on Coronavirus. Bottom line: they aren't taking this seriously enough. Notably, no request for ANY emergency funding, which is a big mistake. Local health systems need supplies, training, screening staff etc. And they need it now.”

Murphy told Yahoo News that the funding he and other congressional leaders wanted to allocate nearly two months ago would have paid for essential preventative measures, including hiring local screening and testing staff, researching a vaccine and treatments and the stockpiling of needed medical supplies.

“The consequences of that in Connecticut is that we're going to test less people today than we tested yesterday,” Murphy told “Skullduggery” hosts Michael Isikoff and Daniel Klaidman. “And that means that there are lots of people who are positive who are not going to know it, who are then going to be in contact with other people, who are going to spread the disease.”

An HHS spokesperson said that a few days before the Feb. 5 meeting, Azar had let Congress know he might need to use his “transfer authority” to fund the response to the virus. The Department was already using an Infectious Disease and Rapid Response Reserve Fund, which the spokesperson said was used to pay for CDC technical assistance, medical screening, and more lab capacity, among other things.

Connecticut is so undersupplied that officials have had to cut back on tests administered even as suspected new infections are surging, Murphy said, calling the forced reduction in testing “an abomination.”

Murphy said Connecticut has been particularly challenged in trying to build up its supply of re-agents, the compounds needed to run coronavirus tests. Re-agents are mostly manufactured abroad, and Murphy said “the whole world is competing” for them now.

The senator said he spent part of Thursday on the phone with a lab official in Connecticut who said he cannot administer enough tests due to the re-agent shortage.

“Had we appropriated money in February to start buying re-agent, we would be in a position to do many more tests today than we are,” Murphy said. ”It was just so clear to us that the administration didn't think this was going to be a problem. We begged them in that meeting to request emergency funding from the Congress and they told us ... that they had everything that they needed on hand, which was false.”

Murphy also criticized the White House’s decision not to take coronavirus test kits offered by the World Health Organization in January, which he said was an especially devastating mistake because that test was ready to go and easily replicable. Murphy said he believes that, as a result of the administration’s testing decisions, only about 20 percent to 30 percent of people who should be tested are able to do so.

“We didn't appropriate the dollars necessary to build out the testing infrastructure,” Murphy said.

The administration’s laissez-faire approach has also contributed to the country’s soaring infection rate, Murphy said, because Trump had resisted calls to invoke the Defense Production Act. The Defense Production Act, or DPA, allows the president to compel private companies to manufacture products deemed necessary for national security.

Download or subscribe on iTunes: “Skullduggery” from Yahoo News

Trump announced Friday that he was finally invoking the DPA to force General Motors to produce badly needed ventilators. But Murphy said the president had dragged his feet in using the DPA because some of his allies pressured him against invoking it.

“The president is getting push back from right-wing ideologues, from those who believe that the private sector can fix any and all problems that confront the nation,” Murphy said.

“The national Chamber of Commerce and other conservative, free-market ideologues inside the White House are arguing for the president to not use the DPA simply because they philosophically disagree with the idea that government should play any role in the management of supplies at a time like this.”

Sabrina Fang, a spokeswoman for the Chamber of Commerce, did not respond to Yahoo News’ requests for comment.

Calling the president’s coronavirus management strategy an “abysmal failure,” Murphy said the lack of federal leadership continues to directly correlate with cities’ and states’ inability to perform enough tests and stop the disease from spreading in the U.S. He said that supply shortages have led to a “‘Lord of the Flies’ environment in which every single state and every single hospital is left to essentially fend for themselves and try to scrounge together as much equipment as they can.”

Asked what he considers to be the most important thing Trump could do to help the country turn the corner in its effort to contain the coronavirus, Murphy said the president should rethink his recent assertion that the country might be able to return to normal by Easter, which falls this year on April 12.

“What I’m most worried about right now is that the president is just going to get sort of tired of these emergency measures,” Murphy said, referring to the social distancing efforts most Americans are now undertaking. “The result will be that people will start coming out of their homes and we will end up with a health care system in absolute, catastrophic failure.”

Murphy also said he is now close to proposing legislation that will bolster coordination between the U.S, and other countries for pandemic preparedness and protection so that next time a virus emerges, leaders are better able to respond.

“There could be another one at our doorstep next spring at the same time that we’re responding to the current virus,” he said.

He also hailed the passage of a $2 trillion stimulus package late Wednesday. The package is meant to boost an economy staggering under the weight of the coronavirus pandemic and includes billions of dollars in tax credits for hard-hit industries and direct cash payments to individuals, among other provisions.

But while he said he was happy the bill would help the economy recover, “until hospitals have what they need in order to continue to respond to this ... our salvation is really in all of our hands.”

“There is no danger of overreacting right now,” Murphy said. “As the number of people infected grows by leaps and bounds every single day, as more hot spots are created all across the country, we need to take drastic measures.”

He said he is gravely worried about the administration’s “mixed messages” to the public about the duration and importance of social distancing.

“Everything in that bill is meaningless,” Murphy said of the stimulus, “unless we are all personally very serious about engaging in the best practices necessary to repel the virus.”

DOCTORS ARE PROLETARIANS TOO
Doctor loses job after criticizing hospital's virus response

“I'm terribly saddened this guy was fired,” Davidson said. “He was an incredible advocate for patients and nurses and doctors. He stuck his neck out — intentionally, knowing the risk — to take care of his coworkers. I have great respect for him.”

By GENE JOHNSON, Associated Press

SEATTLE (AP) — An emergency room doctor who publicly criticized the coronavirus preparations at his hospital in Washington state has lost his job.

© Provided by Associated Press A photo taken Friday, March 27, 2020, in Bellingham, Wash., and provided by Ming Lin hows Dr. Ming Lin, an emergency room doctor at PeaceHealth St. Joseph Medical Center in Bellingham. Lin said Friday he was fired after publicly criticizing the hospital’s coronavirus preparations. (Dr. Ming Lin via AP)

Dr. Ming Lin, a ER doctor at PeaceHealth St. Joseph Medical Center in Bellingham for the past 17 years, told The Associated Press on Friday night he had been fired.

He said that 20 minutes before his shift Friday he was told it had been covered and that his direct director told him he had been terminated. However, TeamHealth, the national health care staffing company that does hiring for the hospital, insisted in an emailed statement Saturday it had not fired him but would try to find him somewhere else to work.

On Facebook and in media interviews Lin has repeatedly criticized what he saw as a sluggish response to the threat by the hospital's administration. Lin insisted that the hospital was slow to screen visitors, negligent in not testing staff, wrong to rely on a company that was taking 10 days to process COVID-19 test results, and derelict in obtaining protective equipment for staff.



He described taking steps to help the hospital obtain cots and personal protective gear being offered by local companies — efforts that garnered him a loyal local following, but, he said, also brought warnings from superiors to stop speaking out.

St. Joseph's did not immediately return an email seeking comment. A statement from TeamHealth said Lin had not been terminated. It did not immediately respond to questions about why he had been removed from the hospital or whether the hospital requested it.

“We are committed to engaging with him to try to find a path forward,” the statement said. “Now more than ever, we need every available doctor, and we will work with Dr. Lin to find the right location for him.”

Lin scoffed at the notion he hadn't been fired, and said he expected the company might offer him work at a different hospital 30 minutes to an hour away. He said he's not interested.

In an interview earlier this week, Lin said his criticism of the hospital was motivated in part by what he learned as an ER doctor at a hospital near the World Trade Center on 9/11. He said he worked at St. Vincent's Hospital in Manhattan, and the facility's steady and competent response that day was due to the training and experience it had undertaken after being overwhelmed in the aftermath of the 1993 World Trade Center bombing.

“I feel so overwhelmed,” Lin said. “We're like a high school basketball team that's about to play an NBA team. The storm is coming, and I don't feel that we're prepared.”

In a statement released March 20, the day after The Seattle Times ran a story about Lin's criticism, the hospital's chief executive, Charles Prosper, insisted that the hospital was taking its preparations seriously. Prosper said the hospital had started restricting nonessential visitors and screening those who did enter for fevers, among other steps.

Prosper told The Bellingham Herald this week that "several" staff members at the hospital have tested positive.

Whatcom County had its first confirmed case by March 10. It has now had 92 confirmed cases and four deaths. At least 27 residents and 18 staff at a skilled nursing facility in Bellingham had tested positive as of Thursday.

Brian Davidson, who has retooled his batting cage and netting company in nearby Everson to make inexpensive cots for temporary medical facilities, credited Lin for helping him get the attention of PeaceHealth St. Joseph's procurement department. But he also said he could see how Lin's efforts might also have complicated the work the department was already doing by inundating it with offers.

“I'm terribly saddened this guy was fired,” Davidson said. “He was an incredible advocate for patients and nurses and doctors. He stuck his neck out — intentionally, knowing the risk — to take care of his coworkers. I have great respect for him.”

Mall giant Taubman Centers to retail tenants: 
You must pay rent during coronavirus closures

LANDLORD IS A GOUGER PROFITEER
AKA AMERICAN LIBERTARIAN

Nathan Bomey, USA TODAY 3/27/2020

One of the nation's largest mall owners instructed its tenants to make their rent payments even though their malls are closed during the coronavirus pandemic.

A letter sent to Taubman Centers tenants nationwide and obtained by USA TODAY shows the company's directive to its tenants to make their payments on time.

"Landlord's obligation to pay its lenders, utility companies, insurance companies and the like, to ensure the safety and security of the building and maintain the appropriate level of operations, remains," Taubman told tenants in the letter. "The rental income that we receive from Tenants is essential in order to meet these obligations. All Tenants will be expected to meet their Lease obligations."

The company said in the letter that it received "numerous inquiries" from tenants regarding potential rent relief.

With 15.8 million square feet of space, Taubman Centers is the 16th-largest mall property owner in the country, according to real estate data source CoStar Group.

Taubman spokesperson Maria Mainville confirmed the authenticity of the letter and defended the company's decision to send it.

Retail shuts down: Taubman Centers temporarily closes malls throughout USA as coronavirus spreads

"We understand that these challenging times are going to be hard for some tenants," Mainville said in an email. "We are attempting to navigate through this situation in the best way we can, while being as flexible as we can with our tenants in light of our ongoing obligations. The tenant memo does not replace our willingness to talk to each tenant about their respective challenges and help them chart an appropriate course for the future."

Taubman's move comes amid a brewing showdown between retail tenants and property landlords throughout the country, both of which face significant economic losses amid widespread shutdowns connected to the impact of COVID-19.

© JOHN HEIDER | hometownlife.com An empty parking lot on March 24, 2020 at Novi's Twelve Oaks Mall attests to the affect the coronavirus is having on the local economy. The mall is closed until further notice to shoppers, however some of the mall's food court businesses are still open for carryout only.

The Cheesecake Factory, which has 294 restaurants in the USA and Canada, said this week that it won't make rent payments due April 1.

"We have very strong, longstanding relationships with our landlords," the Cheesecake Factory said in a statement. "We are certain that with their partnership, we will be able to work together to weather this storm in the appropriate manner."

Alex Victor, partner in the hospitality and restaurant group at law firm Davidoff Hutcher & Citron, said the "force majeure" clause in leases between retailers and landlords typically includes provisions that would suspend rent payments in the event of an "act of God," terrorism or a government shutdown.

He said it's unclear whether a global pandemic qualifies as an event that would suspend payments under most leases.

"Most leases are going to say the requirement to pay rent is absolute and independent of all the other covenants," he said. But tenants "might say, well, because of this whole thing, it’s made it impossible for me to conduct my business."

In Taubman's case, the company has temporarily closed most of its malls through at least March 29.

The company's nearly two dozen properties include the Beverly Center in Los Angeles, the Cherry Creek Shopping Center in Denver, the Dolphin Mall in Miami, Twelve Oaks Mall in Novi, Michigan, and Fair Oaks Mall in Fairfax, Virginia.

Bloomfield Hills, Michigan-based Taubman announced in February that it agreed to sell itself to Indianapolis-based Simon Property Group in a deal likely to close this year.

Simon Property Group – the nation's second-largest mall property owner, according to CoStar – did not respond to a request seeking comment Friday.

Victor, the hospitality group lawyer, said he expects a flurry of lawsuits over missed rental payments due April 1.

"But the courts aren’t even open to address those claims, so it behooves everybody to try to work something out," he said.

In future leases, he said, he expects retail tenants to demand that their contracts release them from paying rent when a pandemic occurs.

"I’m sure, going forward, pandemics are going to be included," he said.

SOCIALLY RESPONSIBLE
DC Details How Comic Book Retailers Will Be Supported Amid Coronavirus Outbreak

© Gary Frank/DC

DC has released a statement explaining what the company will do to assist comic book retailers in the wake of the novel coronavirus outbreak that has, to all intents and purposes, shut down the comic book industry.

Sent to retailers Saturday afternoon, the statement explains that all DC periodicals and books with in-store dates between March 18 and June 24 will be fully returnable, with the company covering shipping costs. Additionally, DC is "exploring a multi-distributor model" moving forward, " to provide us with the flexibility needed during this crisis to get new content to our readers on an ongoing basis.”

The full statement can be read at the end of this post.

The statement comes at the end of a week where Diamond Comic Distributors announced that it would not be shipping new product to comic book stores in North America for the foreseeable future, essentially closing down the print comic book market. In response, multiple publishers, including Image Comics, Dark Horse Comics and IDW, toldThe Hollywood Reporter that they would not be publishing digitally until print releases were available.

DC’s statement follows statements statements from Image, Marvel and other publishers released before Diamond’s own, offering retailer assistance in the form of returnable releases, increased discounts or reworking release schedules so as to not overwhelm afflicted retailers experiencing reduced foot traffic or enforced closures.

Retailers have other options available to them for aid; Lion Forge’s the Forge Fund and Mad Cave Studios’ crowdfunded retailer support fund are also active. Additionally, the Comic Book Legal Defense Fund has released a guide to help retailers apply for Coronavirus Distastes Loan Assistance from the U.S. Small Business Administration.

The full statement as provided to retailers follows:

To Direct Market Retailers:

First, the entire team here at DC hopes that you, your family and your employees are staying safe and healthy during this very tough and precarious time. We know that you have been waiting for DC to comment on the state-of-affairs and to address any measures we will take to help our community lighten the burden of the disruption to our business, and we’ve been working hard on a long-term, solution-focused plan. Here is how we will help:

Periodicals and books with in-store dates between March 18, 2020 and June 24, 2020 will be fully returnable. We’ll even provide credit for your separate return shipping of these items only.

Additionally, because we anticipate that continued disruption to business operations will create regional volatility, DC is exploring a multi-distributor model to provide us with the flexibility needed during this crisis to get new content to our readers on an ongoing basis. In the short-term, we continue to engage in active conversations with Diamond to help us solve the distribution issues that have arisen and hope to get new product to stores that want or need it as soon as possible. We will provide additional informat1287071ion about how we’ll make that happen in the coming days.

Thanks for your patience with us. DC will continue to monitor the situation, continue to speak with you directly, and continue to support you through the days ahead. You are the lifeblood of this industry.

All best,

The DC Team