Coronavirus

El Paso County Tighter Shutdown Order Preempted by Texas Governor's Order

|

So the Texas Court of Appeals held yesterday, in State v. El Paso County (opinion by Chief Justice Jeff Alley, joined by Justice Gina Palafox); an excerpt:

If the disaster de jure was a hurricane on the gulf coast, there would have to be a tie-breaker if the governor intended for people to evacuate in one direction but a local county judge thought it better to send people in the exact opposite direction. Pick whatever type of disaster you might—from toxic chemical releases, earthquakes, oil pipelines leaks, to pandemics—and there could be good faith differences of opinion on the proper response.

Because there must be a final decision-maker, the Legislature inserted a tie breaker and gave it to the governor in that his or her declarations under Section 418.012 have the force of law. El Paso County can point to no similar power accorded to county judges. And while it is not for us to judge the wisdom of the Legislature's choice, the idea of one captain of the ship has intuitive appeal. Did the Legislature really intend for the chaos of a system that allows for 254 different county responses to a statewide disaster? It certainly allowed county judges [the Texas term for the county executive-EV] to lead local disasters, but that is not what Texas is facing.

And here's an excerpt from Justice Yvonne Rodriguez's dissent:

In my view, the Governor has taken a law that was meant to help him assist local authorities by sweeping away bureaucratic obstacles in Austin, and used it in reverse to treat local authorities as a bureaucratic obstacle to the coronavirus response plan he has chosen from Austin. This is truly extraordinary and completely flips the structure of the Texas Disaster Act on its head….

The Attorney General maintains, in times of emergency, the Governor is the ultimate decision-maker, that he is a unitary executive with power over all levels of government, that he alone may decide the fates of people in 254 counties and 12,000 cities, that local elected leaders may act only because he gives them the authority, and he can take away that authority if he believes their approach as to how they address disaster relief is, in his view, wrong. The only way any of that can be true is if courts ignore critical Texas constitutional history, disregard the structure and purpose of the Texas Disaster Act, read words into a statute that are simply not there, and discard important restrictions and qualifications on the Governor's power in the name of expediency and a belief that his noble ends justify its unlawful means

I can't speak to who's right here, but I thought I'd flag the opinions for our readers.

UPDATE: I at first noted in the quote (in brackets) that "disaster de jure" may have been intended to be "disaster du jour," but some commenters plausibly suggested that it might have indeed been intended as "de jure" in the sense of "the disaster declared by law to be such"; I've therefore removed the bracketed note.

NEXT: Lawyers Set to Be Executed

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. There are several basic tenets of conservatism. One is the principle of devolution, that the closer to local communities the decision making power of government is, the better and more responsive is that decision making. Centralization of power is one of the great fears that conservatives harbor, and fighting that centralization is one of its major raison d’etre’s.

    What we see time after time, as this situation brightly illustrates, is that when conservatives find this principle in opposition to what they want to do when they have centralized decision making power they abandon that principle. Just one more example of the moral bankruptcy of today’s conservatives, and that they have the same absence of principle that they accuse other of having.

    1. Whereas the political left favors centralization of power at all times which makes them morally bankrupt totalitarians everywhere.

      We can do this all day.

      1. Now that Trump has been defeated I just want the GOP to return to its roots of slaughtering babies in Iraq, shipping jobs to China, turning Mexicans into Americans, and making a pedo speaker of the House! George P Bush 2024!!!!

        1. Sebastian,
          Blah-blah-blah.
          Is your penchant from crass polemics so great that you must seek to divert any intelligent discussion of issues?

          1. Governor Abbott continues to obstruct the full implementation of Obamacare in Texas and instead offers Abbottcare—if you get sick in Texas just go jogging in a wealthy neighborhood and pray to Jesus a tree falls on you and paralyzes you!! Then you can sue the rich homeowner and then you will have enough money for all of your health care costs!! Now roll on Don Nico and go annoy someone else.

            1. Blah-blah-blah You”re off topic again.
              Go off and whine somewhere else

              1. The GOP is the party of Trump and David Perdue—so literally the only thing they have in common is they purport to support judges that will overturn Roe v Wade and they live to stick it to the liberals! So the depth of the typical Republican’s thinking is —Democrats support x so I oppose x.

                1. Jesus, is there any rights you people care about other than killing babies and buggering other men in the arse?

                  1. I’m pro-life, but it is one of the least important issues to me. That said, I would love to see the the Supreme Court declare life begins at conception so I could see the Santorums arrested for gross negligence manslaughter for not using protection when an over 45 yo Karen spread her legs with the inevitable result of Karen Santorum having a baby guillotine between her thighs and slaughtering who knows how many babies.

                    1. I’m really confused.

                    2. That’s not surprising. 😉

                    3. “I would love to see the the Supreme Court declare life begins at conception”

                      The thing is, the claim thatlife begins at conception is obviously incorrect and easily disproven. Conception occurs when an egg cell (which is alive), meets a sperm cell (which is also alive). Might as well say life begins when father meets mother.

                  2. “Jesus, is there any rights you people care about other than killing babies and buggering other men in the arse?”

                    Seems more accurate to say these are things that YOU care about.

      2. the political left favors centralization of power at all times which makes them morally bankrupt totalitarians everywhere.

        We can do this all day.

        You mean you can make shit up all day when you have no intelligent response to Sidney’s comment.

        We see this behavior by the right all the time. Let a municipality pass a non-discrimination ordinance, for example, and the red-state legislature rises up in arms, members competing with one another to denounce local control and introduce bills invalidating the ordinance.

        It’s a commonplace. The right wants power placed exactly at the points they control.

        1. States are sovereign. Not municipalities like Detroit that are 90% black.

          1. True, but I’m not arguing legalities here, just sensible policy.

            There is nothing illegal about letting municipalities make their own decisions in some matters.

            1. In some matters, yes.

              But when there is conflict between state and local law, or state and local authority, the state authority must take precedence.

              1. Check case…

              2. Is there a conflict in this case, or does the county want to add on to restrictions imposed by the state?

          2. I challenge you to go a single week without making a racist or bigoted comment on these boards.

            Your mom should slap the shit out of you, except that if your mom was a decent person which society could rely upon to correct your numerous failings, she wouldn’t have raised such an asshole to begin with.

            1. Do you deny that blacks are disproportionately a criminal, dysfunctional, unproductive group?

              1. “Do you deny that blacks are disproportionately a criminal, dysfunctional, unproductive group?”

                Duh. Yeah. Because ignorant racists want them to be unproductive criminals, and won’t countenance anything that might show otherwise.

            2. “I challenge you to go a single week without making a racist or bigoted comment on these boards.”

              He can’t do it, and won’t even try.

          3. “States are sovereign. Not municipalities”

            The federal government is sovereign. Did you mean to badly undercut your own argument? Because that is the result you achieved.

      3. “We can do this all day.”

        Nope. You only get to do it so long as your betters permit. That’s the consequence of being a half-educated bigot on the wrong end of the culture war. Your betters call the shots in America . . .just as the Volokh Conspirators are permitted on strong campuses solely consequent to the grace of universities that offer affirmative action for movement conservatives. Otherwise, they’d all be at Regent, Liberty, or Ave Maria.

    2. It’s not a “basic tenet of conservatism” to permit 254 downstream county executives to craft individual and entirely inconsistent sets of policy for a statewide problem that, for reasons of epidemiology, desperately needs a set of statewide solutions. That’s a half-step above anarchy, which is not what conservatism is designed to promote.

      That’s not to say that conservatism requires a “one size fits all” policy. Gov. Abbott’s executive orders responding to the Covid pandemic have indeed taken account of the different risks in different counties based on their geography and population density. But he’s done so with a calculated bare minimum of place-to-place frictions, with an eye always toward choosing the least restrictive means of accomplishing public safety priorities at the expense of individual liberties.

      1. It’s not a statewide problem. Rural areas and cities have different needs and virus responses. Democratic and Republican cities are different, too.

    3. Sindey,
      This situation has no relation to any bankruptcy that you have spun out of your polemical head.
      As people are free to cross district lines, the idea that the must be a unitary authority in statewide emergencies makes practical sense. No one can be expected to know the opinions of many district courts. And when aid is required it must come from State funds over which the governor is the Chief Executive.

      1. “As people are free to cross district lines, the idea that the must be a unitary authority in statewide emergencies makes practical sense.”

        What about here in the real world, where only SOME people are free to cross arbitrary map lines?

    4. We made up some strawmen and labeled them “conservatives” so we can hold them to obedience to some rules we made up. See how they’re bad for not following those rules.

      1. And just to fully illustrate the point that the so-called conservatives have no principles but adopt conservative beliefs when it suits them and abandom them when those beliefs would contradict their prefered political positions, consider the recent movements towards county nullification.

        In many states, Virginia for example, local county sheriffs who oppose the state’s gun regulations have argued that they, as a county, have sovereignty over the state in terms of gun regulations and are ‘sanctuary’ gun counties where the rule of the state does not apply. Conservatives love this, and of course the irony that they are taking the same philosophical position that cities take with respect to declaring themselves ‘sanctuary cities’ with respect to undocumented immigrants is totally lost on them, but then hypocrisy often is not evident to those who practice it.

        1. No one cares what you think about whoever you imagine “conservatives” are.

        2. “Conservatives love this, and of course the irony that they are taking the same philosophical position that cities take with respect to declaring themselves ‘sanctuary cities’”

          You don’t actually understand conservatives. Moreover, the concept of “Sanctuary gun counties” was done BECAUSE of the seeming success “Sanctuary” cities have obtained.

          1. “Sanctuary cities” aren’t refusing to follow the law. The matter even went before the Supreme Court. Cities aren’t obligated to spend local resources to support federal policing activities.

            How is this the same as conservative counties refusing to follow state gun laws? Is it because conservatives falsely believe that “sanctuary cities” are violating the law so it’s okay for them to do so as well? Or that they *feel* that “sanctuary cities” are somehow bad and so it’s okay for conservative cities to be equally bad without regard for which side of the law that falls on?

      2. “We made up some strawmen and labeled them “conservatives” so we can hold them to obedience to some rules we made up. See how they’re bad for not following those rules.”

        We listened to them and repeated their own purported beliefs back to them in a way they apparently do not like. See how that’s somehow OUR fault, and not theirs for either A) not expressing their own guiding principles, and B) just not following them?

    5. There are several basic tenets of conservatism. One is the principle of devolution, that the closer to local communities the decision making power of government is, the better and more responsive is that decision making. Centralization of power is one of the great fears that conservatives harbor, and fighting that centralization is one of its major raison d’etre’s.

      What we see time after time, as this situation brightly illustrates, is that when conservatives find this principle in opposition to what they want to do when they have centralized decision making power they abandon that principle. Just one more example of the moral bankruptcy of today’s conservatives, and that they have the same absence of principle that they accuse other of having.

      May I point out the opposite at the national level. Trump has refused to become this national dictator, and merely recommends to states, and leaves the decisions up to the states.

      We have yet to see what Biden will do, but Democrats are no strangers to national command and control, and opposed to “50 states experimenting”. Unless it is sanctuary cities.

      I guess both sides are unprincipled, swapping philosophies in and out as necessary for their goals. How…unexpected.

      1. Maybe I missed it but I do not recall Democrats ever referring to themselves as ‘Conservatives’. Conservatives on the other hand, or at least the ones that today call themselves that, do seem to talk about their adherence to principles, until of course those principles become a burden to their prejudices.

        1. Both sides have no principles, at least that they’re not ready to immediately abandon for the opposite when it gets in the way of a goal.

          In this context, your comment seems odd and an indictment on non-conservatives. Adhering to a philosophical principle has nothing to do with conservatism.

          1. It’s interesting how the left side of the aisle continues to hold they continue to have principles while the right is abandoning them, whereas the right posits that everyone is a sellout.

            I find that this predetermined omni-cynicism pretty unbecoming and unsupported, but I suppose it makes sense that the more anti-government right would have such an extreme attitude.

      2. “May I point out the opposite at the national level. Trump has refused to become this national dictator”

        Trump’s inability to achieve his goals are now somehow a virtue?

      3. One of the principles of “50 states experimenting” is that when you find which of the 50 experiments works the best, you roll it out to all the various states. Otherwise, it isn’t “experimenting” but rather “50 states all going their own separate ways.”

        So if we’re looking at the Trump administration’s pandemic response, a nationwide issue that doesn’t respect state borders and has killed nearly a quarter of a million people, it isn’t even “50 states all going their own separate ways” but “every states for themselves.” There’s been a total lack of leadership to prevent contagion but lots of leadership to use the pandemic as a political tool to further divide his base away from the rest of the country. Not a “dictator” move but in line with someone working towards applying for that job in the future.

  2. Perhaps neither one is right, depends on the specific thing being ordered, and the legislative authority for that act.

    In this case I think the order by the county judge is beyond either his or the governors authority the order had been extended to Dec 1:
    “CE-13 includes several provisions relevant here. Section 1 requires all individuals living within El Paso County to temporarily stay at home or at their place of residence. Section 3 of the Order includes a curfew on all persons from 10 p.m. to 5 a.m. Section 5 prohibits “[a]ll public or private gatherings of any number of people occurring outside a single household or living unit.”

    Im not even sure the legislature has enough authority for a measure that broad, the Texas Constitution and existing legislation may not give them powers that broad.

    And after Biden is inaugurated I know he doesn’t have that much power either under our system of government.

    1. Kazinski,
      Are you arguing that no person or entity in Texas has the authority to act in this crisis? That seems to be what you are saying.
      Care to clarify?

      1. Depends what you mean by “acting.” Most of not all of these regulations/restrictions/mandates are seat of the pants stuff rather than science.

        There seems to be a current fad in thinking the virus spreads more easily after 10:00pm. Therefore it does seem plausible that having more crowded locations prior to the curfew will be the result.

        At least the seat of the pants club has not called for sacrificing goats. Yet.

        1. Public policy is not science. Period

      2. “Are you arguing that no person or entity in Texas has the authority to act in this crisis?”

        What I’m saying is I am not quite sure. What are the relevant authorities in the Texas Constitution, and legislation?

        I actually doubt there is authority there for either the governor or the county judge to order a 10pm to 5am curfew for 3 weeks, or longer. And I have extreme doubts about any order that prohibits any public or private gathering of more than a single household unit, that clearly violates the 1st amendment, and I’m skeptical that it can be justified under any established legal doctrine, other than “because I said so”.

        1. Thank you for an honest answer.

        2. ” I have extreme doubts about any order that prohibits any public or private gathering of more than a single household unit, that clearly violates the 1st amendment”

          Except that the first amendment clearly applies only to Congress, and even that is iffy with court rulings that “shall make no law” sometimes means “can go ahead and make laws” as long as Congress is/was making laws that the courts liked.

      3. “Are you arguing that no person or entity in Texas has the authority to act in this crisis? That seems to be what you are saying.”

        The proper Texas response to the pandemic is to always carry and to shoot anyone who might be a disease carrier who invades a 6′ perimeter about your person. It seems harsh, but it’s as effective as any other state has managed to be thus far. We’re rounding the corner!

  3. The Texas Disaster Act of 1975, and the Texas Government Code’s disaster management provisions more generally (codified in Chapter 418 of the Texas Government Code), have been tweaked by the Legislature, on average, about once every other session — that is, about once every four years — since at least the 1970s, typically in response to hurricanes, which is something Texans are much better acquainted with than pandemics. Historically Texas has had an institutionally weak governorship as compared to many other states and their chief executives, but the Government Code’s thoughtful and careful delegation of emergency powers to the Texas governor is a conspicuous exception to that general rule, and the trend has been for the Legislature to confer broader discretion and power through most of these periodic legislative revisitings.

    In her dissent, Justice Rodriguez is writing, IMHO, not as a judge, or even an intellectually honest lawyer, but as a would-be Social Justice Warrior. There’s no other way to honestly characterize her hyperbolic insistence that Gov. Abbott contends that “he alone may decide the fates of people in 254 counties and 12,000 cities.” Gov. Abbott, of course, has never so contended; the Texas Attorney General has never so contended; and that which Gov. Abbott has done during this pandemic has consistently been grounded in the express authority granted to the Texas governor by the Texas Legislature in the Texas Government Code, which is why it’s been consistently upheld against court challenges (including several from Republicans to Gov. Abbott’s political right).

    She’s venting partisan ire at Gov. Greg Abbott, who was accused of “voter suppression” because by executive order pursuant to the Government Code’s authorization during declared emergencies, he extended Texas’ early voting period by opening it six days earlier for all Texans, and for giving the relatively tiny number of eligible Texans who chose to return their voting-by-mail ballots in person 40 days to do so, instead of strictly enforcing the Election Code’s requirement that that be done only on Election Day. And she wants instead to encourage the literally lawless county executive officials in “blue” Texas counties, who’ve been characterized in the last several months by not only their refusal to follow the Texas Election Code as written, but their deliberate flouting thereof, which put at grave potential risk literally hundreds of thousands of Texans’ ballots cast in good-faith reliance on those county officials who’ve chosen to violate the law.

    When it comes to Republicans who expand voting opportunities, no good deed may go unpunished. This is just more of that, the barking of a frustrated political minority from a party that hasn’t been able to win a single statewide election in Texas since 1994.

    1. Having criticized Justice Yvonne Rodriguez for behaving as a partisan Democrat, I ought to take a moment to praise her co-partisan and fellow Eighth (El Paso) Court of Appeals jurist, Justice Gina Palafox, for doing her job properly by following the law as written by the Texas Legislature — notwithstanding the fact that she was elected as a nominee of the Democratic Party. (Chief Justice Alley was appointed to fill a vacancy in that seat by Gov. Abbott, and was, predictably, swamped by his Democrat opponent in the election just conducted, primarily on the basis of votes from very blue El Paso County, the home of Beto O’Rourke.) Both Justices Rodriguez and Palafox, however, like the relatively small handful of other intermediate appellate court judges elected in heavily Democratic parts of the state, are surely aware that the Texas Supreme Court (comprising nine Republicans) would never have let stand the El Paso county judge’s defiance of Texas law as written by the Legislature.

  4. “[I assume the court meant “du jour”-EV]”

    I wouldn’t be too sure about that.

    1. I took “de jure” as a legal pun. Pretty funny, for a judge, in my opinion.

      1. Millions infected. Hundreds of thousands dead. Ha ha, a time for jocularity.

        1. Lighten up or you’ll go crazy.

        2. Get a grip. According to the cdc there is no statistically significant increase in mortality due to covid. The only change has been the % of people dying of pneumonia like illnesses, which indicates what they’ve been saying all along: people with co-morbidities (conditions also likely to kill) are much more vulnerable to die when they get covid. But any increase in overall fatalities is non-existent or so small to be immeasurable.

          It’s the science.

          https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/08072020/nchs-mortality-report.html

          1. “Overall, an estimated 299,028 excess deaths occurred from late January through October 3, 2020, with 198,081 (66%) excess deaths attributed to COVID-19.”
            https://www.cdc.gov/mmwr/volumes/69/wr/mm6942e2.htm

          2. “which indicates what they’ve been saying all along: people with co-morbidities (conditions also likely to kill) are much more vulnerable to die when they get covid.”

            Approximately 100% of human beings are very likely to die. 007 could only live twice, and even Sean Connery is taking a dirt nap.

    2. Indeed. I thought the judge was commenting on the prevalence of declarations of disaster which were not actually disasters de facto

  5. One of the biggest risk factors for COVID-19 is having a Republican governor.

    1. New York… New Jersey…:

      States with the highest COVID death rate per capita

      1. He’s using present tense. Presently, if NY is a fine place to be *right now* if you’re not into attaining a COVID-19 infection.
        South Dakota, Kansas, Iowa, Wyoming, Idaho, Missouri, on the other hand are toping the charts…

        1. Farr’s law has not been repealed. Comparing locations at different points on the curve will prove they are on different points on the curve.

          BTW, the smaller the population sample the greater the standard deviation. Don’t use Wyoming as a case study.

          1. Forgive me, I’m reading somewhat between the lines here.

            What it look like you’re arguing that what appears to be a correlation between Republican governorship and current COVID rates is not causal because Democratically governed states have already had their peak due to some other factor (urbanness, or maybe international travel rate).

            I disagree with this argument. It requires heard immunity post-peak to keep the rate down. I don’t believe that is at all evident. I think the differing rates based on party governorship can be traced to each party’s policies pretty directly.
            No, it’s not perfect – Kentucky is doing super well and Pennsylvania is top 10 in infection rate. And I’m no great shakes statistical analysis-wise. But it’s hard to ignore.
            https://www.beckershospitalreview.com/public-health/states-ranked-by-covid-19-test-positivity-rates-july-14.html

            1. I think that we’d agree that eventually (when the epidemic has subsided, or reached an endemic steady state) that the proper measure of various strategies would be the total excess deaths (or years of life lost [1]) (perhaps coupled with some economic measures, I dunno).

              But it’s pretty hard to do that accounting yet. Among other reasons is that we don’t know how far out a vaccine (or some other cure) is. If it is far, far in the future, then everyone is going to follow Sweden, just with various amounts of disruption along the way. OTOH, if a vaccine is just around the corner, then maybe it will have been worth a high price to push infections out as far as possible (in particular, past vaccine availability).

              So I think it’s far too soon to be making hard conclusions about what strategy is best. And I note that strong opinions on what is the best strategy are highly correlated with strong political affiliations. That makes me suspect that this really isn’t a science based discussion.

              [1]that is actually a pretty hard question, I think. A grandparent with a life expectancy of 5 years might be willing to take a large risk to spend time with a newborn grandchild, for example. And my sense is that distance learning is a poor substitute for normal school.

              1. I also like excess deaths as a measure of final success. And I agree we aren’t going to get anything like clear data out of this until like 2023.
                Sweden might be right. They might be right for Sweden. We don’t know.

                And separately, the best policy is not path independent. What we do now must take into account what we have done in the past.

                I was just speaking to AL’s bad numbers, not making a general statement.

                I would tend to follow those here who see this as a question of what body has power over what; in the midst of it all, it’s all a question of policy not science.

                1. “it’s all a question of policy not science.”
                  I wish more partisan’s would understand that.

                  1. I mean, I’d be less sanguine if there were actually actionable scientific results at this point. But there aren’t many at all. A single study isn’t really science in the medical disciplines – you need to go longitudinal.

                    Masks’ utility has some good longitudinal science behind them. Other than that, it’s all messy in situ groping at this point.

                    Which means it’s up to the policymakers to decide based on incomplete info. That’s what they’re chosen to do, after all.

              2. Even excess deaths may not be a pure measure. With reduced driving and sitting at home (fewer heart attacks in the short run), comparing vs. a previous year might underestimate. There might be other factors increasing death rates.

                1. Isn’t overdeaths the final impact from COVID and all associated actions, regardless of the source or mitigation?

              3. ” Among other reasons is that we don’t know how far out a vaccine (or some other cure) is.”

                Unless you believe that both Pfizer and Moderna each have one that has proven effective.

              4. “my sense is that distance learning is a poor substitute for normal school.”

                Depends largely on the student(s), as is often the case with education. Distance education works quite well for some students, while others lack the self-discipline to fully benefit.

        2. Wyoming…currently 25th out of 50 states in COVID infections per capita.

          Facts. The way to disprove your talking points.

          1. OK. So you don’t understand what I’m saying.

            Total death per capita from the beginning is not the metric to use about *current risk* as captcrisis appears to be talking about.

            For that you’d want to look at a rolling average of positivity in the past week or so.

            That’s what I posted. And I explained above that that’s what I posted. And you came back with the exact same metric I had explained was not proper, and told me I was lying.

            Post better.

            1. Sarcastr0,
              Even the 7-day rolling average is very noisy and subject to weekly oscillation due to reporting cycles. One is better off to fit a 5th or 6th order polynominal and then take those ratios. For some states (such as NY) even that procedure is very noisy.

              1. What’s the right tradeoff between immediacy and smoothing outliers? That’s a matter of taste. But certainly 1 is too immediate, and 70 is not immediate enough.

                But what’s more important than whether 7 or 10 days is optimal is
                some sort of standard for proper comparison. Most of the aggregators use a rolling 7-day average, so that seems the best choice to me for that reason.

                1. If they rease the 7 day average every day you could construct a 10 day or any other period out of it with a little work.

                  1. “If they rease the 7 day average every day”

                    If anybody had this raw data, and you could be sure there were no shenanigans in gathering or reporting it.
                    We know of at least one prominent Republican who insisted that Coronavirus testing be scaled back because the numbers were alarming to the general public, and this was being reflected in polling data.

                2. FWIW, the covid numbers show a fairly pronounced weekend periodicity, so 7 days is likely to be less noisy than 10 days.

                  But as an aside, one way to look at it is that if one’s hypothesis is true, it is likely to be evident whether one picks a period of 7 or 10 or 14 days. The longer intervals are less likely to misclassify a blip, but will be slower to report a genuine change in trend. That kind of tradeoff is typical in statistics.

                  This is a special case of a couple of statistical topics called jackknifing and bootstrapping that, IMHO, are not used enough. For example, how often have you read a study along the lines of ‘we analyzed data from 2003 to 2016 and found X’. How was that interval picked? It might be because that was all the data available, or it might be because those intervals gave a congenial result. Either way, you can check the robustness of the finding by repeating the analysis, once by omitting the 2003 data, then omitting just the 2004 data, then 2005 and so on, If you have a robust result, you’ll get more or less the same answer each time. Conversely, if your answer changes radically depending on which subset of the data you are considering then your results are likely spurious.

                  Not really related to, or anyway limited to, the topic at hand, but maybe occasionally useful for separating the wheat from the chaff in grant proposals. I don’t know why they aren’t generally used.

                  1. I do like this, as a dullard in statistics who likes easy protocols like that! 😛

                  2. Find and read a copy of “How to Lie with Statistics”, by Darrell Huff, originally published in the 1950’s. Available from Amazon.

          2. With only six people per square mile, there is less risk. Obviously.

            And yet Wyoming currently has the second highest infections per capita. Check the list in today’s New York Times.

            P.S. North Dakota, also sparsely populated, also a red state with a Republican governor, has the highest.

            1. I don’t trust Fake News like the NY Times. And either should you. NYT skews facts to fit their pre-conceived notions. You should do you own math, as so…

              Here are some basic facts from Johns Hopkins.

              Wyoming had 659 cases reported on November 14th. Wyoming has a population of 578,000. That leads to a case load of 0.114%

              By contrast, Minnesota had 6587 cases on November 14th. Minnesota has a population 5.64 million. Leading to a case load of 0.116%. Higher than Wyoming’s case load.

              That’s just a simple case example…. You can’t trust the NYT.

              https://coronavirus.jhu.edu/data/new-cases-50-states/minnesota

              1. A single day is not probative; you need a 70day average.

                You don’t trust numbers from the NYT?! You think they’re making them up?!!

                How are you so bad at this?

                1. 7 day average, obv.

                2. Checking to see if posts are blocked here.

                  1. Huh. It’s only the content that’s blocked. Trying again.
                    Partial response. Entire response blocked.

                    7 day….70 day…. It all depends what gives you the “answer” you want, doesn’t it?

                    I think the NYT skews their interpretation and selection of the data to tell the story they want. If the data tells a story that isn’t approved…it isn’t told. Or the data is “re-interpreted and re-analyzed” until it does tell the story they want to.

                    1. No, it does not depend on what answer we seek. 7 day averages are standard; I’m not cherry picking. You, on the other hand, pretty clearly are.
                      No one is talking about NYT interpretation; captcrisis cited their numbers. Which you have ignored, in favor of the objectively bad choice of a single day.

                    2. Of course it depends on what answer you want. You give the results that show your point (like the NYT was), frame it in such a way, and ignore any data that shows the opposite.

                      I note that Minnesota never popped up in your response. Despite having a higher infection # per capita than Wyoming, as I demonstrated.

                      Yet what did you point out?

                      “South Dakota, Kansas, Iowa, Wyoming, Idaho, Missouri are toping the charts”

                      Note, no Minnesota. You, the NYT, both “selectively” avoid it. And in 7 days, another talking point will be brought up.

                    3. No, AL, not everyone is cherry picking their numbers to make you or Trump feel bad/good.

                      Is it a bit arbitrary? Yes. Does that mean you get to cherry pick? No.

                      I didn’t selectively leave out Minnesota, I posted the top rates at the moment. Minnesota wasn’t in that mix.

                      The fact that you think I had an agenda in not posting all 50 states so I could make you look bad says a lot about how you think about facts and science, and none of it good.

                    4. “I posted the top rates at the moment”

                      Really? Did you? Did you provide a link to these numbers?

                      Here are the CDC’s numbers. A “7 day rolling average” just like you want. Exactly the selection you want.

                      https://covid.cdc.gov/covid-data-tracker/#cases_casesper100klast7days

                      What do we see.

                      Top states: ND, SD, IA, WY, WI, Nebraska, Minnesota.

                      Note what’s missing? Missouri.

                      What did you say? (Without any links to evidence, of course)…
                      South Dakota, Kansas, Iowa, Wyoming, Idaho, Missouri,

                      See the difference?

                    5. Here’s my source, which I had already posted above:
                      https://www.beckershospitalreview.com/public-health/states-ranked-by-covid-19-test-positivity-rates-july-14.html

                      Now stop calling me a liar, dude.

              2. “I don’t trust Fake News like the NY Times. ”

                Which brand of Fake News do you prefer?

              3. “That’s just a simple case example…. You can’t trust the NYT. ”

                They don’t adjust for partisanship when the print numbers.

      2. 1. Republican governors (like Republican politicians everywhere) are motivated not by public health concerns but by adhering to Trump’s alternate reality — Trump, who made fun of mask wearing, whose supporters hold superspreader maskless rallies, who contracted the virus himself and due to his stupid, childish and reckless refusal to take precautions infected about three dozen others in the White House. The rare Republican governors who have put public health first (like DeWine in Ohio) have gotten flak for it.

        2. The New York Times puts out a daily list of the dozen states with highest per capita infections. For months, it has been just red states. With the recent spike, a couple of blue states have crept in, and they are accordingly putting back in place the former public health restrictions.

        3. If someone resists preventive measures, I’d call him a risk factor. Wouldn’t you?

        1. The NYT does have obvious biases. It kept CA off their front page map even during the strong spike is cases here.
          If you want honest numberst compile the data daily yourself. Time lags in reporting wash out and then you can see the secular trends and the noise in the data.

          1. “If you want honest numberst compile the data daily yourself.”

            Sure. Just convince a nation full of paranoid partisans to report health status information to you, despite the fact that sharing health information about other people is currently unlawful. I’m sure you’ll get wonderfully accurate figures.

      3. “New York… New Jersey…:

        States with the highest COVID death rate per capita

        It’s important to separate current data from cumulative data, because they are not the same.

        statistics concerning death from influenza are quite different if your numbers include 1918 or not. A lot of Americans died of flu in 1918, but those numbers do not concern me, as I was not yet an American in 1918.

    2. Complete BS prompted only by partisan polemics.
      When is Old White Joe going to announce that his coronation will be private, indoors with no crowds involved?

      1. No, no, no.

        It’ll be the biggest event in human history. Attended by more people than any other inauguration! and anyone who stops to count the number of actual people there is Fake News.

  6. Okay, the governor has the legal power. Any comments to explain why he should use it in such a despicable way? Or maybe not despicable, but just poorly informed?

    Most Americans seem unready for the implications of recent infection trends and numbers. Maybe the governor is among them.

    The nation just reported its first 180,000+ case day. It takes nothing more than middle school math to predict the horror that implies for the near future.

    Around the world, and in the U.S., the case fatality rate during the first wave of the pandemic tended to converge on about 7%—that being only the known cases compared to the consequent deaths, however assessed. Skeptics, of course, want those numbers minimized.

    Let’s go with the skeptics. Suppose, for no justifiable reason at all, that the infection rate peaked with that 180,000+ case report. Assume therefore, that a daily infection rate somewhat lower will be the average during December. Make it 150,000 cases per day. And assume for whatever reason—soothing skeptics is a reason—that the new case fatality rate will be much lower too. Make an arbitrary skeptic-type guess that it will be 3% instead of 7%. Do the math, and you get a prediction of ~140,000 deaths in December alone.

    But just for the sake of staying forthright—and only slightly to cater to alarmists instead of to skeptics—try assuming the infection rate continues to rise—maybe to a 220,000 per-day average by December—and the case fatality rate will be higher too, say 6%. Then you predict December fatalities > 400,000. That’s not a cumulative figure, it’s just for December.

    What if that happens, but infections and deaths continue to increase for months afterward? Maybe that is a question governors across the nation (and U.S. Senators, too) ought to be asking, even if they think a vaccine is only months away. Because even before a vaccine can take effect, on the pessimistic premise (which is to say the premise which most closely mirrors the experience of last Spring), the only time governors can act to prevent deaths in the millions would be now.

    1. Infection fatality rate is 1% across all demographics. .02-.03% if you eliminate the elderly, something for some reason is impossible to accomplish. Maybe shutting down the bars/restaurants entirely, instead of a 10pm curfew, or locking up all the schools, will stop the dying in nursing homes. Time will tell

      1. Iowan, time has already told. Despite having more virus for longer intervals, the blue states which locked down in the Spring are faring notably better than their red state counterparts, at least for now. The future is uncertain for 2 reasons.

        One, of course, is that nobody can keep the virus from spreading outward from present hot spots. That spread will re-incubate areas which had battled virus levels down months ago.

        Two, Republican determination to hand Biden a catastrophe as an inauguration gift precludes relief aid from the feds, without which a repeat of what worked last time is unfeasible. After all, what are a few hundred-thousand avoidable deaths to Mitch McConnell, if he thinks he sees a way to blame them on Joe Biden?

        1. Stephen,
          Polemics do not trump your poor mathematical polemics. California_ the bluest state is now spiking again as is Michigan. Only NY which is starting a rise in cases has maintained a very low case fatality rate.

          As I asked above, if Old Joe is actually serious about corona virus, when is he going to announce that his coronation will be private, indoors with no crowds involved?

          1. I should have added that WA (in its 3rd wave), IL, MI, NJ, CT, and RI are also spiking strongly all with Dem governors.
            So cut the crappola

            1. Yes, Don. See reason one above.

              Otherwise, compare current infection rates per 100,000 in the blue states you say show equivalence with red state infection rates. You will see that although the states affected earliest are indeed on an upward trend, they still show rates a small fraction of those in the Dakotas, or many other places in the Midwest for that matter.

              My county in MA was hard hit in the first wave (about 1,000 fatalities), but it greatly reduced infections with a moderately hard lock-down. I thought the lock-down should have come sooner, and been more rigorously enforced. But it did, fairly obviously, make everyone notably safer before mid-May—when it was still plenty chilly around here, by the way.

              So what do we see now? Indiana is sort of a typical red state—far from the worst affected. Compared to Indiana, Massachusetts currently has an infection rate per 100,000 slightly less than 20% as much. But, yeah, Massachusetts is on the way up, too.

              Virus minimization is bullshit. Public health minimization is worse. It’s evil. Why do it?

            2. ” WA (in its 3rd wave), IL, MI, NJ, CT, and RI are also spiking strongly all with Dem governors.”

              The virus does not give a fuck about your politics, or anyone else’s. it will take any opportunity to infect anyone it can get to. It may not kill you, if you are otherwise healthy, although it does seem to have some long-term detrimental effects on the heart, even in otherwise healthy people. But you’re a Republican, so you don’t actually need one of those. The point of minimizing the spread of the virus is to keep it away from the people who are at risk of severe symptoms (i.e. of dying alone).

      2. “Infection fatality rate is 1% across all demographics. .02-.03% if you eliminate the elderly”

        Eliminating the elderly seems like a harsh plan, now that I am in very late youth. Maybe we just let the elderly Republicans eliminate themselves, as seems to be their plan and fervent wish?

    2. “Let’s go with the skeptics.”

      Sweet. The virus will go away by itself when the weather gets warmer. er, colder.

  7. The majority opinion was written by Chief Justice Jeff Alley, whose term will expire on December 31 because he lost the November 3d election to Yvonne Rodriguez, the author of the dissenting opinion, who will become Chief Justice on January 1

    The state of affairs is odd in the Eight Court of Appeals (El Paso), For those unaware, appellate judges in Texas are chosen in partisan elections for six-year terms. If a vacancy arises, it is filled by the governor. Intermediate appeals are decided by three-judge panels, though the 8th only has three judges, so it’s always the same panel. In 2019, Chief Justice (aka “Place 1”) Anne McClure retired, and Governor Greg Abbott appointed Alley to replace her. This angered Justice Rodriguez, the Place 2 justice, because she felt, as the senior member of the court, she should have been promoted to Chief. So she ran against Alley and won. This, of course, creates a vacancy in Place 2 that Abbott must fill. (Rodriguez had been elected in 2018, so her term would have expired in 2024). Will he appoint Alley?

Please to post comments