Civil Rights Commissioners Gail Heriot & Peter Kirsanow on the VA's Planned Race-Based Vaccine Distribution

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From a letter sent Tuesday, which generally strikes me as quite correct.

Dear Mr. Secretary:

We write as two members of the eight-member U.S. Commission on Civil Rights, and not on behalf of the Commission as a whole. We write to express our concerns regarding a recent announcement by the Department of Veterans Affairs.[1]

On December 10, the Department announced its initial plans for the distribution of a COVID-19 vaccine.[2] The Department indicated that it would prioritize Black, Hispanic, Native American, and Asian veterans in this distribution because these "communities have been disproportionately affected by COVID-19."[3]

We recognize that COVID-19 is particularly dangerous to people who fall within certain categories, including the aged and those with existing health problems. And we further acknowledge that it is both reasonable and prudent for the Department to prioritize many of our most susceptible fellow citizens. We are concerned, however, that your decision to distribute the vaccine in part based on race might create a constitutional equal protection problem.

Under the Constitution, a court would be obliged to apply "strict scrutiny" to any law or policy that treats individuals differently based on race, no matter how well meaning.[4]  That requires proponents of the law or policy to show that it fulfills a "compelling purpose" and that it is "narrowly tailored" to achieve that purpose.

"Strict scrutiny," as the name implies, is intended to be a very tough standard.  If, for example, differing rates of susceptibility to COVID-19 among racial groups can be largely accounted for through such things as differing rates of diabetes, coronary disease, or obesity, there is a substantial likelihood that the VA's plan to prioritize some races over others would be vulnerable to legal challenge.  Similarly, if factors like age, diabetic status, or geographic areas at which outbreaks are most serious are more significant than race and yet are not given full priority over race, that, too, could make the plan vulnerable.

We would be happy to discuss this further with you as you develop your plans.  Our interest is in making sure the VA has a plan that will be successful.

Most respectfully,

Gail Heriot
Peter Kirsanow

[1] Dep't of Veterans Aff., VA Announces Initial Plans for COVID-19 Vaccine Distribution (Dec. 10, 2020), https://www.va.gov/opa/pressrel/includes/viewPDF.cfm?id=5580.

[2] Id.

[3] COVID-19 Vaccines at VA, Dep't of Veterans Aff. (Dec. 10, 2020), https://www.va.gov/health-care/covid-19-vaccine/.

[4] Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995).

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  1. I'm glad to see that there is some push-back about a obviously racist policy proposal.

    1. It can't be racist, it's only discrimating against whites....

      1. And if there is anyone to be counted upon to defend America (and the world) against the scourge of mistreatment of Whites, it is the Volokh Conspiracy and its carefully cultivated class of clinger followers.

        1. "First they came for the Communists,
          and I didn’t speak up,
          because I wasn’t a Communist.
          Then they came for the Jews,
          and I didn’t speak up,
          because I wasn’t a Jew.
          Then they came for the Catholics,
          and I didn’t speak up,
          because I was a Protestant.
          Then they came for me,
          and by that time there was no one
          left to speak up for me."

          ------Martin Niemoller

          1. First they came for the Communists,
            And I didn't speak up
            Because the Communists are murdering bastards,
            and I was tired of their useful idiots pretending otherwise.
            Then they came for the Jews,
            And I did speak up,
            Because I can tell the difference between Communists and Jews.
            Then they came for the Catholics,
            And I spoke up a lot,
            because I am one.
            Then they came for the idiots who complained when they came for the Communists,
            which was ironic because it was the Communists coming for everybody but the Communists, all along.

            1. Then they came for the Jews,
              And I did speak up,

              No, the generic "you" did not speak up. No one did. And you won't next time, because it's your guys, those fine people from Charlottesville, who will be doing it.

              1. That is rather obvious bullshit because almost a half-million Americans not only "did speak up" for the Jews but gave their lives for them.

        2. And if there's anyone to be counted on to defend the mistreatment of anyone, it's RALK.

        3. So lay your cards on the table.

          Do you support the VA policy that discriminates against whites, qua whites, in the distribution of the Covid19 vaccine?

          A simple yes or no.

          1. If that question is aimed toward me: I would be skeptical concerning such a policy.

    2. I am also glad that there is pushback against this proposal to revive the Tuskegee Experiment.

  2. In addition, it appearsthat the CDC wants to prioritize essential workers over the elderly because the elderly are too White.

    According to Matt Yglesias, "You're opting for a strategy that leads to more Black deaths and more white deaths than the "vaccinate seniors first" strategy, but deciding that it's better for equity and this is what ethics requires."

    1. Trump should order the CDC to prioritize health care workers first, then the elderly and nursing home staff.

      Then let Biden reverse it, that will look good, especially now that he's already had his shot.

    2. I do think a decent, non-racist argument can be made for prioritizing health care workers over the elderly. The elderly can isolate, while health care workers by definition have to be exposed more to do their jobs. So their risk, on a practical level, is greater.

      I don't know what "essential workers" means that is different from healthcare workers.

      1. I don’t know what “essential workers” means that is different from healthcare workers.

        Police? Firefighters? People who work in the food supply chain?

        1. Fair enough. I would put those after healthcare workers but before the elderly for the same reason. Their jobs involve repeated exposure to many people, albeit somewhat less risky than healthcare workers. As I said, the elderly can continue to isolate for a few more months.

      2. "I do think a decent, non-racist argument can be made for prioritizing health care workers over the elderly."

        Perhaps, but the CDC is making a racist one.

  3. My big takeaway:
    Regardless of whether or not you agree with the position of the letter-writers; it is refreshing to see legal work that is cordial, professional, and well-written. In 2024, I would suggest to Donald Trump that he hire people like this for his legal team . . . why not try creating a legal team filled with competent and sane attorneys, rather than the batshit-crazy incompetent folks you used this past time.

    1. I would suggest that, going into 2024, he hire people for his legal team based as much on their political donation history as their competence, since this time around it has appeared that competent lawyers who don't want you to win are a bad choice, while incompetent ones who do want you to win aren't any better.

      You need both at the same time.

      1. since this time around it has appeared that competent lawyers who don’t want you to win are a bad choice

        Who are you referring to here?

        1. Trump hired law firms with good reputations, but if you look at their donation histories, their donations were running between 99.9% and 100% Democratic.

          Then those firms did lousy jobs, (You can't complain about Trump's litigation strategy and say his legal counsel did a good job.) and jumped ship at critical moments.

          So he hired people based on their loyalty, in a rush, and THOSE people turned out to be incompetent.

          You really need to, up front, hire people who are BOTH loyal AND competent. One doesn't cut it in high stakes political cases.

          This has been a signature weakness of Trump's: Assuming that hiring somebody assures their loyalty, so you just need to look for competence. Maybe it works that way in business, but it doesn't in politics.

          1. Then those firms did lousy jobs, (You can’t complain about Trump’s litigation strategy and say his legal counsel did a good job.) and jumped ship at critical moments.

            What an utterly ridiculous argument you are trying to make, over and over again. Rather than accepting that Trump never had any kind of case, and the first set of lawyers realized that, you posit that they deliberately sabotaged him. Is every bad thing that happens to Trump a result of some massive conspiracy against him? Get help.

            So he hired people based on their loyalty, in a rush, and THOSE people turned out to be incompetent.

            Trump hired incompetents. Big surprise.

            Of course he's going to hire incompetents, because he won't work with anyone who doesn't constantly suck up, toady, and tell him how wonderful he is and that he's absolutely right about everything.

            1. After a couple of months of Trump Election Litigation, I perceive the group of lawyers (1) willing to work for Trump, (2) personally devoted to his cause, and (3) competent to be quite small, especially with respect to election law issues. There may be none who ventures beyond competent toward strong.

              There appears to be plenty of shambling lawyers lacking familiarity with election law and eager to work for Trump, though -- at least, until the first fee awards develop.

          2. Again, which firms or lawyers in connection with which cases are you referring to?

      2. Maybe true. But tougher with Trump, since his own donation history would say that he's a well-left-of-center Democrat, rather than a batshit-crazy far-right Republican. In other words, one's history may not be as telling as you suggest.

  4. You want to tell me that i'm lower in the vaccine pecking order than someone who is at higher risk due to their lifestyle choices, I can live with that.
    You want to tell me that a young health care worker gets a vaccine before me because that worker will safely treat hundreds of others, I can live with that too.
    But if you tell me that someone else gets the vaccine before I do based on skin color, you've told the whole world why you shouldn't be in charge of health care.

    1. Except, of course, the fact that there is someone "in charge of health care" and is using the gun of government to ration that "health care", means this BLATANT racism preached by today's intellectuals (in and out of government) WILL be practiced. That this RACISM is being *vociferously* advocated rather than hidden - and has been met with VERY little opposition (Left or Right) - simply demonstrates WHY such people ARE "in charge of health care": rights and freedom have been REJECTED by most EVERYONE.

      1. The letter is talking about the VA.

      2. Watching bigoted clingers get riled by reports of this ostensible issue is more entertaining than I expected it to be.

    2. Aren't Black and Latinx Americans at higher risk due to their "lifestyle choices," which in this case have to do with their "choice" to have a poorer job that makes them more vulnerable, be less wealthy, and thus have less access to healthcare?

      You'd be okay with them having priority based on lifestyle choices then, right?

      1. No, I'm pretty sure we're talking about lifestyle choices such as diet, and I assure you it's quite possible to eat a healthy diet while poor. I've done it myself, when I was the stereotypical poor college student, darning my socks because I couldn't afford new ones AND my textbooks, walking to school through blizzards to save on gas.

        The problem here is that both poverty AND unhealthy lifestyle choices are correlated with other variables: Poor decision making and impulse control.

  5. Wait a minute. If diabetes is notably more prevalent among black people than among white people, and because of that Covid-19 is more deadly among black people, you can't pass strict scrutiny? Why? Because you can say the increased mortality is due to diabetes, not race? Do I have that right? That's the argument?

    If that is the argument, then I have a question. What makes anyone want to say it is diabetes instead of Covid-19 doing the killing? However deadly diabetes may be, it isn't usually an acute killer, but instead a chronic one—and these are unmistakably acute deaths being accounted for—the kind of deaths for which Covid-19 has become notorious. So a notion to say otherwise, and attribute those deaths instead to diabetes is strained, and requires explanation. Why? Why would the law do that?

    1. You should prioritize diabetics and those with other forms of morbidity but blacks don't all have diabetes so why should an otherwise healthy black person get priority over a healthy white person?

    2. Because you don't pick proxy measures when you have direct measures. Your argument might be plausible if we knew that diabetics were more common in black people but we didn't (and couldn't) know who those diabetics were. However, the VA knows precisely who the diabetics are so they can distribute the vaccine on that basis. Using a race-based proxy is both unnecessary and wrong. No, using race would not pass strict scrutiny.

      1. Rossami, how does the VA know the particular way race-related Covid-19 exposure differences affect each diabetic, whether white or black? My point is that this is not about diabetes, it's about Covid-19—which we know does affect racial groups disparately, whether for medical or sociological reasnons. What is your interest in urging that those kinds of factors get minimized?

        1. You haven't actually fleshed out the details of the preference scheme you want, but if it is based on the assumption that e.g. white COPD/diabetes/whatever patients (or white 80 year olds) are at greater risk of dying from covid than healthy black/hispanic/asian/gay 50 year olds, I'd like to see your source.

          If you are envisioning some other preference scheme, specify what it is. It's hard to have much of a discussion without a concrete proposal.

          1. I don't know enough specifics to propose a fleshed-out scheme, but it seems to me that the principle should be that race should be included as a proxy in the prioritization scheme only if and to the extent that it is sufficiently necessary to sufficiently reduce population mortality/morbidity. And people can then wrangle over the meaning of "sufficiently."

            Which isn't an empty statement. For example, one can apply this principle to conclude that 1) as Rossami points out, if the only rationale for including race in the prioritization is that it's a proxy for something with a cheap, easy direct measure, that's not good enough; but also that 2) it's wrong to conclude from this, as Rossami does, that "Using a race-based proxy is both unnecessary and wrong" (for example, it may be necessary and right if there are other morbidity-related factors with no practical direct measures for which race is a good proxy).

          2. Absaroka, taking your challenge in its narrowest context, I suggest that on its face, a policy to preferentially immunize blacks will remove more contagion from the general population than a policy to immunize everyone alike. That is based on the notion—which I take to be true—that at present blacks are more likely than average to be infected with Covid-19. If other similarly at-risk sub-populations can be identified, then perhaps, depending on particulars associated with those groups, they should also get early vaccination. It is also possible that some identifiable sub-populations of blacks should be prioritized ahead of other blacks.

            In every such instance, I suppose a population identified with worse-than-average disease prevalence is also proportionately more likely to spread contagion. Reducing contagion as fast as possible is the public health rationale, and also the objective of the emergency powers invoked. Every suggested method must be weighed against the certainty that emergencies are poor occasions for extended consideration and fine-grained analysis.

            Generally, I do not think it is wise when setting public health policy to impose arbitrary standards of uniformity across a population. Public health policy is necessarily about group assessments—and about collective risks, and those risks' distributions among identifiable groups and sub-groups—not about individual rights or entitlements. Individualism is not a principle to be applied by law to everything, all the time.

            More broadly, I take public health emergency powers to be a signal example of government powers enabled by the Necessary and Proper clause. I note a tendency—maybe a growing tendency among those on the political right—to reach for the court-created doctrine of strict scrutiny, and to use it to attack even legitimate government powers—especially during contests among political rivals.

            John Marshall denounced any such use, insofar as it purported a court power to gauge the degree of necessity which applied to Necessary and Proper government means. In McCulloch v Maryland, Marshall insisted that assessments of necessity be reserved for legislatures. Here is Marshall:

            Should congress, in the execution of its powers, adopt measures which are prohibited by the constitution; or should congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say, that such an act was not the law of the land. But where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the government, to undertake here to inquire into the decree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. This court disclaims all pretensions to such a power.

            Well, that was then. Now, not so much.

            Marshall's constraint on the judicial department was wise. Attacking it using strict scrutiny, which is a doctrine tailored to protect individual rights, with only minimal regard for legitimate powers and appropriate means, is a mistake. Attacking legitimate state emergency powers—which by their nature curtail rights temporarily—tends logically toward stripping the states, and the United States, of all emergency powers.

            Demanding such tests during an emergency is outlandish. Under the test of a too-rigorous analysis, probably none would pass strict scrutiny, and only a tiny fraction would ever get a hearing. The objective would be to use test s establish a principle against emergency powers, and then apply it untested to every other particular case.

            Of course, taking strict scrutiny to that extreme could not get past the principles laid down by Marshall in McCulloch v Maryland.

            I don't suppose this ends the argument. I do hope it outlines the broader grounds on which competing principles have been contested during the ongoing Covid-19 public health emergency. In that context—where emergency powers are as clearly justified as they could ever be—resort to strict scrutiny is an extreme proposal, and ought to be rejected—and not only rejected because of the destructive epidemiological effects which might follow, but also rejected because of the baleful invitation to aggrandize court power, and impose judicial supremacy.

            Decisions to use emergency powers, alike with decisions to forego their use, are always among the most dangerous of all the acts of government. It is no panacea to mitigate that danger to say the power to make those decisions should lie with the courts, where accountability is minimal. Still less would it mitigate danger to structure the courts' involvement with strict scrutiny, and thus invoke in every such case a principle of decision so extremely weighted toward inaction. Far better to trust such decisions to legislatures, subject to eventual political accountability.

            During emergencies, practicality is against strict scrutiny. Only ideological extremism favors it. Emergencies are perhaps the worst occasions for giving free rein to ideological extremism.

            1. Far better to trust such decisions to legislatures, subject to eventual political accountability.

              Normally yes, lathrop. In an emergency past 30 days, no. The flaw in your argument is what happens when a State Legislature does nothing. For instance the People's Duma in the People's Republic of NJ has been on 'holiday' for nine months when it comes to preserving our rights. They have stood idly by for nine months while our individual liberties were stripped away by executive order.

              Our individual rights don't go on holiday just because a People's Duma chooses to do nothing. Nope.

              1. If you want to call the shots, find a country in which the bigoted, superstitious right-wingers win the culture war.

                Otherwise, you get to keep complaining . . . but you will comply with the preferences of your betters.

                Carry on, clingers.

                1. Whine. whine, whine... you're a broken record.

                  1. If you disliked repetitive whining, you would never visit this blog again.

                2. Arthur, you were much better and more original doing haiku. Seriously.

        2. You're posing a hypothetical that doesn't exist. There are no "race-related COVID-19 exposure differences" other than those associated with health factors we can measure directly. The only evidence that COVID affects racial groups disparately is correlational and is completely explained by the correlations of other health factors such as diabetes. Yes, diabetes is somewhat correlated to income and income is somewhat correlated to race. But none of those correlations equal causation. Diabetes, however, does cause COVID complications.

          Again, we can measure diabetes (and other co-morbidity factors) directly. There is simply no reason to insert race into it.

    3. Susceptibility does not imply increased mortality, but what the word means, chance of 'catching' the disease. That would be the purpose for a vaccine, preventing one from getting the disease, and the extremely slight risk of dying from it. Are you arguing for a zero comorbidity death count, as many do, for NCoV? That's a remarkably unscientific and medically dishonest way to approach cause of death, but emotionally gratifying, I suppose. That aside, what is your complaint? That a law be upheld? That a bias you hold be left unchallenged?

    4. Stephen,
      The answer to your question is quite simple. There is no statistical evidence of any strong correlation of diabetes with serious consequences of covid infection.
      Try following the science:
      https://medrxiv.org/cgi/content/short/2020.09.30.20204990v1

      1. DN, that isn't an answer to any question I asked.

  6. All such privileged people should have mitochondrial DNA 90% from Africa on a certificate of testing.

  7. Prof V, thanks for following this, it's fascinating, and a bit close to home.

  8. This will do WHAT exactly? The Dept will go ahead and institute its RACIST program. People MIGHT sue about that racism. And - after TIME (ie AFTER the people they demand be vaccinated first are already vaccinated) - the courts will declare the issue is "mute" and dismiss the case. NOTHING will have been achieved.

    We've seen this play out on time sensitive cases over and over again. Simply look at the election cases so far. 'Too late' has been the reply by the courts in many of them.

  9. When lines for vaccination are established, will Prof. Heriot choose the "Republican" line?

    . . . or the "independent" line?

    . . . or the "conservative" line?

    . . . or the "non-partisan" line?

    . . . or will she hope her documented willingness to lie and cheat for the Republican-conservative cause gets her the kind of "Trump pass" handed to Giuliani, Christie, Carson, etc.?

    Prof. Volokh's lack of comment on this element of Prof. Heriot's conduct (while he expounds regularly on other "civil rights" issues, and highlights Prof. Heriot's partisan commentary) is an exhibition of cowardice.

    1. So...simply because someone identifies as a Democrat doesn't mean they *are* a Democrat?

      You've created a dangerous precedent for "trans rights" - if we can make a fuss about someone's self-identified partisan identification, then we give room to haters to ignore someone's self-declared sex and call them by the sex they were born with.

      Which would be the end of the world.

      Are you sure you want to stick to your position, you transphobe?

      1. That's your take from the Gail Heriot experience with respect to the civil rights commission?

        No wonder you guys are uncompetitive in modern America's culture war.

        Stand aside and let the liberal-libertarian mainstream handle this.
        Or get run over. Your pick. Identical result.

        1. "That’s your take"

          My "take" is to mock you.

          1. "Stand aside and let the liberal-libertarian mainstream handle this."

            By practicing racial discrimination?

            1. By that measure, your side won the culture war in 1877. Temporarily won, that is.

          2. We shall mock each other.

            The difference is that you will spend the rest of your bigoted life complying with my preferences.

            I am content.

            1. Eeew, I don't want to hear about your preferences.

              1. ...but those preferences seem to include racial discrimination.

                Again, your preferences were in the ascendant in 1877, and maybe they're in the ascendant now. Though it's nothing to boast of.

              2. "Eeew, I don’t want to hear about your preferences."

                This should dispel any doubt about what Arthur's "preferences" are.

            2. "Preference" is offensive. The correct term is "orientation". And get your other hand back on the keyboard.

    2. Will you even know what it means to choose a line?
      Your post is plain stupid and mean-spirited, just like your typical posts

      1. You are a typical clinger, Don Nico . . . eager to dish it out toward your betters, but unable to take it to the slightest degree.

        Which is fine, because it is among the reasons you and the other conservatives can't compete in the culture war.

  10. And this is coming from the same people who decree that there is no such thing as election fraud and those who say there is are crazy hicks. But, we are supposed to care and dedicate pages of writing to minorities who do not trust the vaccine. Yeah....OK....

  11. I don't doubt that Commissioners Heroit and Kirsanow found some portion of the December 10 press release that indicated that the VA would be allocating the vaccine on the basis of race. However, when I clicked on the links to the press release I was unable to find the language they quoted. I suspect that sometime after the 10th the VA changed the content of the original release and posted the revised version without disclosing that it contains changes. But, again, maybe I just failed to read the existing press release carefully enough.

    1. "I don’t doubt that Commissioners Heroit and Kirsanow found some portion of the December 10 press release that indicated that the VA would be allocating the vaccine on the basis of race."

      Are you not familiar with Prof. Heriot's record with respect to cheating, lying, and misrepresentation for partisan purpose?

  12. I don't know who to believe about this -- when everybody's shouting, it's hard to tell. Look, if the VA or anyone decides to prioritize people with certain medical conditions, because they are particularly susceptible to death or disease from covid, and then you tell me that this results in giving priority to members of Race/Ethnic Group/Gender /X, I say, who cares? It could be white men, it could be black women, it could be asian transexuals, I don't give a sh*t. But if the VA or anyone decides to use race, or gender, or ethnicity, or whatever as a prioritizing factor, how is that different from the southern states' using race to decide who gets to sit in what seat on the bus, to decide who gets to go to which public high school, who gets to go to State U? We shouldn't be having this discussion anymore. Racism is wrong. Live with it, whether you are W or B or O or M or F or O. Stop this cr*p of putting us into categories.

    1. It's completely okay to prioritize people with certain health conditions and it happens to benefit more people of a certain race because they have a higher occurrence of the condition. It's NOT okay to say "more blacks have this health condition, so we're going to give the vaccine to all blacks first." The problem is when you're focusing on the skin color of the recipient rather than the medical condition.

  13. I thought this was figured out already for people with darker skin: take vitamin D pills.

    "What do 1918 sailors and modern bums have in common?"

    1. Vitamin D isn't the only biologically beneficial substance produced during sun exposure, and there's some debate over which one is actually driving the correlation. It might be the nitric oxide, instead.

      But there's no upside to inadequate vitamin D levels, which are deplorably common, so supplementation would be in order anyway.

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