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Sunday, February 21, 2021

Post #5031 Rant of the Day: Face Mask, Seat Belts, and Constitutionality

 The general context for this essay was yet another Twitter trend bashing Rand Paul. Now I've had my differences with Rand Paul, particularly his defense of Trump during the two impeachment trials, but I feel he is more principled and on the right side of most public policy issues. The Rand Derangement Syndrome is very real, and I have on occasion sharply rebuked partisan trolls on Twitter, saying things like the neighbor who attacked Rand (eventually resulting in partial loss of Rand's lung) didn't go far enough.

I'm not sure what led to the latest bashing of Rand Paul but I do know Sherrod Brown (D-OH) went after him for not wearing a mask in session several days back. The ignorant asshole wrote this: "In a packed Senate chamber with stenographers and colleagues just feet away from him, @RandPaul refuses to put on a mask - and puts the health of everyone around him at risk." First of all, Rand Paul doesn't have COVID; he's healthy. There is no risk from a healthy person who doesn't wear a mask. If Sherrod Brown had any knowledge about COVID, he would know, at most,  most face masks protect little more than protecting oneself from virus-laden respiratory splatter from those infected. Now you could argue it's in Rand Paul's best interests to protect himself against the splatter from others, but what Brown is saying is pure nonsense. Cloth masks have next to no defense against microbe aerosols; that's the reason most hospitals were worried about a possible run on N95 respirators by the public, leaving them with no masks for health professionals treating COVID patients. If conventional cloth/other masks were equally effective, why didn't hospitals simply use the more available, cheaper masks?  So even if Rand Paul had COVID, the masks that he and Brown wore wouldn't protect  Brown from those aerosols if he was near or downwind from Paul.  Brown has an amateurish, oversimplistic understanding of masks, their purpose, and limitations. It really shouldn't matter to Brown whether Paul was wearing a mask if presumably Brown wasn't prohibited from wearing a mask just in case a contagious Paul was coughing or sneezing on him.

This isn't the first time this kind of pseudo-scientific rubbish. Paul, around 11 months back, became perhaps the first major politician diagnosed with COVID-19. He went swimming in a Congressional facility before getting test results; he wasn't symptomatic. He promptly went into quarantine upon hearing the news. He explained he had taken the test because he does a lot of traveling and hence could have been exposed and took the test proactively. But other politicians were obsessed that he put everyone who uses the pool at risk. (That whole hand washing or social distancing protocol just doesn't connect with these people.) I am unaware of a single person who has been infected by Rand, and the media would have been right on top of that.

Never mind that Rand Paul is a licensed doctor. But the left-fascists dismiss that because it doesn't fit their definition of an expert. Sure, he can prescribe and administer vaccinations, but unless he's published a relevant paper in a peer-reviewed journal, he doesn't have a right to his own opinion.

So here is the Twitter kerffufle:


OK, there's a lot to unpack here (there is a subsequent exchange where the troll Casey called my response bullshit and we threw journal articles at each other). I only saw Casey's tweet not in my notifications but in my Twitter summary page as the top mention of the month. There's a complete misunderstanding of the Constitution by both trolls which I didn't fully address in my responses (because I have only 280 characters per tweet and I didn't want to write a long sequence of tweets, so I'll do it here).

So let's first deal with the British OP. I thought I was clear by context. He's basically saying, "The Capitol is a federal building, Biden made a rule about federal buildings, so I don't see a problem." Neither troll understands my point. The POTUS has no authority over the Capitol; now what the mandate refers to is the departments and agencies that report to the President. One could make the argument that the President has the authority to provide and enforce policies for the health and safety of federal employees, and you could argue that mask compliance serves that end. I don't know the specifics of federal laws governing over government entities, but I would think unless a particular policy is prohibited, the President has broad discretion. There's a separate Constitutional argument, e.g., could the POTUS implement a policy outside the federal arena, e.g., in states or places in general I'll examine below.

But the Capitol is not under POTUS' jurisdiction. The Congress is a separate branch of government. The President cannot enforce his administrative preferences in the Capitol. The broader point is that Congress and POTUS have enumerated powers/responsibilities. For instance, under the 10th Amendment, the states assume health security jurisdiction. They might have the authority to do things like mask mandates, at least in public areas. So I'm specifically focusing on limited powers of the Presidency. In fact, as I have pointed out on the Jan. 6 riot, the Capitol police, although federal employees, really report to Congress, not POTUS.

I can see where the phrasing of my initial reply could be confusing in terms of questioning face masks and constitutionality. I don't have an issue with the policy within the POTUS' jurisdiction. As a  government contractor, I realize I am subject to the agreement with the government, and certain liberties are constrained by the voluntary agreement. In fact, all federal properties I've visited over the past year had mask policies, and I complied. I personally would voluntarily wear a facemask without even a state mandate But the Congress is an independent branch and the POTUS cannot enforce his policies over Congress. The troll's argument "Face masks aren't unconstitutional, nowhere mentions facemasks" clearly shows he's missed the point, and his argument is rubbish. No, you won't find a Constitution reference to facemasks. Granted, I could have been clearer (limited to 280 characters), but I was focused on the Brit thinking the Capitol was under Biden's jurisdiction. I'm making the broad point of enumerated powers, and the troll is seeming to suggest if the Constitution doesn't prohibit it, Congress or the President can do whatever they want. No, laws and executive orders are subject to Constitutional constraints. And to make a technical point, no, Congress doesn't need the President's signature; they can override his veto.

Now let's talk about seat belts. "Progressives" like to talk about "muh  roads" a lot, not to mention seat belt, bike helmet mandates. I might actually write a longer post or book chapter on these memes. I've always worn seat belts but never owned or wore a bike helmet. (I haven't ridden a bike since my last bike was stolen while living in graduate student housing at UH, but I rode a bike all the time as a kid (Mom didn't chauffer us around to ballgames, and I delivered papers all through high school on one)) But I think seat belts are stupid policy. It's one thing for government to protect me from the violence of others and vice versa, but it's another thing to protect me from myself: where do you draw the line? A police state where they monitor your every move? I think several hundred posts back I embedded a video showing what happened (I think in Australia or New Zealand) when power failed at a traffic light at a busy intersection and without a policeman to guide traffic. Did all hell break lose and drivers get into a whole bunch of accidents? Nope. Drivers seemed to approach the intersection more cautiously and took turns crossing the street. 

It's a basic concept we libertarians love to cite all the time: moral hazard. So a  person facing a traffic light might drive more aggressively, say try to beat a  light or think it's safe to proceed to enter the intersection because the light is green. (My baby sister's car was once hit by a driver running a red light.) Mandates are stupid in certain contexts, e.g., driving in an empty lot or on a private or solitary stretch of road. Now keep in mind the context for using a face mask: generally speaking it's a safeguard in the vicinity of infected people if and when you can't maintain prescribed social distancing. It doesn't save you from bioaerosols shed by an infected user. At best it will protect you from respiratory splatter. And you don't really know who's infected, but obviously you should stand clear from someone with respiratory symptoms. One of the concerns I have involves, yes, moral hazard. And I've blogged on this very topic. I'm worried about about false expectations; for one thing, some face masks are more effective than others, they may not be worn effectively (sealed), etc. They don't protect against bioaerosols. Whereas it's possible to get infected from an asymptomatic person, the evidence is mostly anecdotal in nature and less likely without respiratory symptoms. But the idea that a significant percentage of  infected people are asymptomatic is one reason I've consistently pushed for more widespread testing in my blog and tweets.

Another point on mandates and the troll Casey's point that we have seat belt mandates, too, and they are constitutional. Well, maybe under police powers of state constitution. (Not under federal jurisdiction except on federal properties, etc.) But keep in mind masks have impacts on breathing, and some people with respiratory ailments (asthma, etc.) could face health risks wearing masks--and you couldn't necessarily know if, say, Rand Paul, has a respiratory condition. To some people, the cure is worse than the disease.  Breathing is a necessary fact of life the idea that the state has the authority to risk someone's health, even life, is intrinsically unconstitutional. You can argue driving/riding is a potentially risky activity to other people/property and is a privilege, not a right. That's not the same as imposing a face mask on people, particularly without evidence of illness. Now individuals do have a right of self-defense and to wear a mask during the pandemic--I do. 


But let's move to the COVID-19 dispute. I'm pointing out Rand Paul has already been infected, on the record. I know what these "progressives" have been indoctrinated with. Technically, it is possible, but not probable, for Rand Paul to get reinfected, and a reinfected Rand Paul could (but it's not probable) infect others. From the data seen to date, less than 1% of the infected get reinfected (see this Nature article), presumably by acquired immunity. [A troll should know better than to get into an argument with me. My Joplin (saved webpages) COVID-19 notebook at last count had some 114 posts. I am anal-retentive over details; one of my articles was conditionally accepted provided I cut my references in half.] Second, there was an exhaustive Wuhan study post-lockdown  that I've referenced elsewhere where they did an exhaustive study of the contacts of reinfected people and found no evidence of disease propagation.

Now consider excerpts from this government paper (note that antibody tests look for markers of past (in this context, COVID-19) infection vs. current infection (PCR) testing):

The NCI research team, which I was a part of, was led by Lynne Penberthy, M.D., M.P.H., associate director of NCI’s Surveillance Research Program. Working with two health care data analytics companies (HealthVerity and Aetion) and commercial labs (Quest and LabCorp), we obtained serology (antibody) testing results for more than 3 million people, representing more than 50% of the commercial SARS-CoV-2 antibody tests conducted in the United States. Nearly 12% of these tests were antibody positive; most of the remaining tests were negative (less than 1% were inconclusive).

The research team then looked at what fraction of individuals in each group went on to later develop a positive result on a nucleic acid (PCR) test for SARS-CoV-2, which may indicate a new infection. We found that, 90 or more days after the initial antibody test, people who had been antibody-negative had evidence of infection (a positive PCR test) at about 10 times the rate of people who had been antibody-positive.

A complication in interpreting the results of this work is that people who have recovered from a SARS-CoV-2 infection can still shed viral material (RNA) for up to 3 months. These individuals are generally thought to have low risk for passing the virus on to others, even though they may continue to test positive for the virus on a PCR test.

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