The United Kingdom's new Labour Party government has confirmed that it will start charging a 20 percent value-added tax on private school tuition in January 2025. It promises to use the money to fund 6,500 new teachers in state school. Treasury official James Murray said the government is looking at how to address the impact this will have on "pupils with the most acute special educational needs," who depend on private schools for specialized education.

The post Brickbat: School Days appeared first on Reason.com.

"Criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something," Supreme Court Justice Neil Gorsuch observed in 2019. Gorsuch elaborates on that theme in a new book, showing how the proliferation of criminal penalties has given prosecutors enormous power to ruin people's lives, resulting in the nearly complete replacement of jury trials with plea bargains.

"Some scholars peg the number of federal statutory crimes at more than 5,000," Gorsuch and co-author Janie Nitze note in Over Ruled: The Human Toll of Too Much Law, while "estimates suggest that at least 300,000 federal agency regulations carry criminal sanctions." The fact that neither figure is known with precision speaks volumes about the expansion of federal law.

Literally volumes. "By 2018, the U.S. Code encompassed 54 volumes and approximately 60,000 pages," Gorsuch writes, while "the Code of Federal Regulations spanned about 200 volumes and over 188,000 pages" as of 2021.

Since keeping up with all that law is a challenge even for experts, the rest of us cannot hope to know exactly which conduct is a crime, even though "fair notice" is a basic requirement of due process. The civil liberties lawyer Harvey Silverglate has suggested that "the average busy professional in this country" may unwittingly commit "several federal crimes" every day.

And that's just federal law. Thanks to the vast trove of potential charges, Silverglate observes, quoting a warning from Justice Robert Jackson, "prosecutors can easily succumb to the temptation of first 'picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.'"

Former President Donald Trump says that is what happened to him. His 34 felony convictions for paperwork violations stemming from his hush payment to a porn star provide evidence to support that complaint.

Because the same conduct can be construed as multiple violations of state or federal law, prosecutors can pressure defendants to plead guilty by threatening to throw the book at them. Although Special Counsel David Weiss initially was prepared to drop a federal gun charge against Hunter Biden under a diversion agreement, for example, he ultimately prosecuted the president's son for three felonies, all based on the same gun purchase, with combined maximum penalties of 25 years.

Why the change? After the diversion agreement and a plea agreement resolving tax charges fell apart, Biden decided to make the government prove its case in court. Exercising his Sixth Amendment right to trial by jury came with a stiff penalty.

Something similar happened to Aaron Swartz, a young computer programmer, entrepreneur, and internet "hacktivist" who, apparently frustrated by limits on information he thought should be freely available, downloaded articles from JSTOR, an online academic library. When Swartz was caught, he returned the articles, and JSTOR considered the matter resolved.

Federal prosecutors nevertheless "charged Aaron with wire fraud and three counts under the Computer Fraud and Abuse Act of 1986," Gorsuch writes. And when Swartz declined to plead guilty, "prosecutors added another nine counts to their charges against him, exposing him now to decades in prison and millions in fines." Swartz committed suicide a few months before his trial was scheduled to begin.

As a result of such pressure, Gorsuch notes, about 97 percent of federal felony convictions and 94 percent of state felony convictions are based on plea agreements. Trial by jury, which the Framers viewed as an essential bulwark against tyranny, plays only a marginal role in our current criminal justice system.

The more juries are needed as a check on prosecutorial power, in other words, the less likely they are to serve that role. "The Framers really believed in juries," Gorsuch noted in an interview with New York Times columnist David French. "I mean, there it is in Article III. There it is in the Sixth Amendment. There it is in the Seventh Amendment. They really believed in juries, and we've lost that."

© Copyright 2024 by Creators Syndicate Inc.

The post 'Too Much Law' Gives Prosecutors Enormous Power To Ruin People's Lives appeared first on Reason.com.

This week's featured article is "Your Vote Doesn't Count" by Katherine Mangu-Ward.

This audio was generated using AI trained on the voice of Katherine Mangu-Ward.

Music credits: "Deep in Thought" by CTRL and "Sunsettling" by Man with Roses

The post <I>The Best of Reason Magazine</I>: Your Vote Doesn't Count appeared first on Reason.com.

Vice President Kamala Harris has chosen Minnesota Gov. Tim Walz as her running mate. Walz was a moderate Democrat when he served in the House of Representatives but veered left during his two terms as governor. He referred to socialism as synonymous with neighborliness, pursued an extremely progressive governing agenda, and earned an F from the Cato Institute on fiscal policy.

Another notable thing about Walz is that he served as governor during the COVID-19 pandemic. It is thus possible to parse his approach to the virus—and that record is extremely disturbing. Indeed, Walz's coronavirus policies were extremely heavy-handed and restrictive; under his leadership, the state endured the pandemic in a fundamentally anti-libertarian fashion.

When the coronavirus was first spreading, Walz was an enthusiastic promoter of social distancing rules. He described the crowds in public, outdoor spaces as "a little too big." He even defended Minnesota's ridiculous hotline for COVID-19 snitches. That's right: Walz's government maintained a method for people to report their neighbors for failing to abide by social distancing rules. Walz insisted in a recent interview that "one person's socialism is another person's neighborliness"; denouncing one's neighbors as insufficiently loyal to government policies is a fundamental aspect of socialism, however.

When asked by Republicans to take down the hotline, Walz responded: "We're not going to take down a phone number that people can call to keep their families safe."

And though Walz instructed police to merely issue citations to people caught violating stay-at-home orders—which is still bad enough—he also maintained the right, via executive order, to issue $1,000 fines and send violators to jail for 90 days. His government maintained that private, indoor gatherings should be limited to 10 people. Outdoor gatherings were arbitrarily capped at 25 people. On July 23, 2020, Walz declared a statewide mask mandate for most indoor spaces and even some outdoor spaces.

"If we can get a 90 to 95% compliance, which we've seen the science shows, we can reduce the infection rates dramatically, which slows that spread and breaks that chain," Walz said at the time. "This is the way, the cheapest, the most effective way for us to open up our businesses, for us to get our kids back in school, for us to keep our grandparents healthy and for us to get back that life that we all miss so much."

What followed was the implementation of one of the stupidest COVID-19 rules: Diners at restaurants had to wear masks while walking to their table and moving about the establishment but were allowed to go maskless as long as they were eating and drinking.

Later, in November and December of 2020, Walz issued and extended orders for restaurants, gyms, and other businesses to shut down. This included outdoor dining service for eating establishments. Over 150 businesses formed the Reopen Minnesota Coalition and urged the governor to relent, but Walz was unmoved.

By the spring of 2021, vaccines were widely available for the most at-risk groups, and people who wanted to protect themselves from the risk of severe disease and death were able to exercise that option. It was only at this point that Walz partly relented and allowed widespread reopening; however, he kept capacity limits in place for many businesses.

These nonsensical policies—the efficacy of which is now doubted by top U.S. health officials—are not unique to Minnesota; in fact, they were commonplace in blue states. But Walz was as vigorous an enforcer of them as any of his Democratic peers.

He was also one of the foremost defenders of a monstrous COVID-19 policy choice: sending sick, elderly patients back to nursing homes where the infection often spread to other vulnerable people, causing a disproportionate number of coronavirus deaths in such settings. A cover-up of nursing home deaths in New York brought an end to the political ambitions of Gov. Andrew Cuomo, who lied about his involvement in this policy. But Walz was a fellow practitioner; in fact, Walz said that it was "not a mistake" to release sick people back to nursing homes. That statement alone reflects poor enough judgment as to be disqualifying for the pursuit of higher office.

Pandemic policies are not nearly as salient today as they were two years ago, and so it remains to be seen whether Walz's record here matters much to voters. But for anyone who considers the COVID-19 restrictions to have been "the biggest assault on our liberties in our lifetime," Walz's veep candidacy should be a nonstarter.

The post Tim Walz Was a COVID-19 Tyrant appeared first on Reason.com.

The National Institutes of Health (NIH) violated the First Amendment rights of animal rights activists whose social media comments were deleted by the agency, a federal appeals court ruled last week. 

The agency had been deleting all comments on its Facebook and Instagram pages that contained certain keywords related to criticism of the agency's use of animal testing. Comments containing words like animal, testing, and cruel were singled out for deletion as part of a broader policy of deleting "off-topic" comments.

Activists from People for the Ethical Treatment of Animals (PETA) sued in 2021, arguing that this practice was a clear violation of commenters' First Amendment rights and claiming that NIH social media pages were "traditional public forums," meaning that the NIH could not enforce any content-based restrictions on speech.

After first facing defeat at a lower court, the U.S. Court of Appeals for the District of Columbia Circuit ruled last Tuesday that the NIH had violated the activists' First Amendment rights. However, the court disagreed that the NIH social media account comment sections were traditional public forums. Instead, the court agreed with NIH lawyers that the comment sections were "limited" public forums "because the government has signaled its intent to limit the discussion on those threads to specific subjects." 

But even if the NIH can constitutionally moderate comments based on content, the court found that the agency's restrictions on commenters' speech were unreasonably restrictive. "In the context of NIH's posts—which often feature research conducted using animal experiments or researchers who have conducted such experiments—to consider words related to animal testing categorically 'off-topic' does not" abide by common sense, wrote Judge Bradley N. Garcia for the court. 

To illustrate this point, Garcia brought up the example of an Instagram post featuring a photo of the eye of a zebrafish killed in NIH research. "It is unreasonable to think that comments related to animal testing are off-topic for such a post," Garcia wrote. "Yet a comment like 'animal testing on zebrafish is cruel' would have been filtered out because 'animal,' 'testing,' and 'cruel' are all blocked by NIH's keyword filters."

Additionally, Garcia argued that the NIH's "off-topic" policy is also unreasonable because it is "inflexible and unresponsive to context," and commenters have no opportunity to challenge the removal of their comment.

"The permanent and context-insensitive nature of NIH's speech restriction reinforces its unreasonableness, especially absent record evidence that comments about animal testing materially disrupt NIH's ability to meet its objective of communicating with citizens about NIH's work," Garcia wrote. "The government should tread carefully when enforcing any speech restriction to ensure it is not viewpoint discriminatory and does not inappropriately censor criticism or exposure of governmental actions."

The post The NIH Deleted Comments Criticizing Animal Testing. A Federal Court Says That Violates the First Amendment. appeared first on Reason.com.

How did a movement started by a one-time hero of the American left end in an authoritarian dictatorship? Before Nicólas Maduro, Venezuela was led by Hugo Chávez, who was buddies with Danny Glover and Sean Penn. Chávez had lunch in New York with Nobel Prize winner Joseph Stiglitz, who also once traveled to Venezuela to praise Chávez's economic policies. He was Oliver Stone's guest at the Venice Film Festival, where he flirted with a photographer on the red carpet and stayed up late sharing a bottle and a half of tequila with Michael Moore. 

Human Rights Watch called attention to Chávez's authoritarian tendencies back in 2008, but many intellectuals on the left were so drawn by his willingness to turn Venezuela into a laboratory for their most radical ideas that they looked the other way. "What's so exciting about at last visiting Venezuela [is that] I can see how a better world is being created," the Massachusetts Institute of Technology linguist Noam Chomsky said at a public event with Chávez in 2009.

When Chávez died of cancer in 2013, the Pulitzer Prize–winning Yale historian Greg Grandin wrote an adoring obituary in The Nation, musing that perhaps the Venezuelan leader's biggest failing was that he hadn't been "authoritarian enough" in pursuing his agenda. Grandin's wish for more authoritarianism was granted when Maduro took power.

But did Chávez's policies lead to Maduro's dictatorship?

The New York Times' Andes Bureau Chief Julie Turkewitz published a recent essay titled "What Happened to Venezuela's Democracy?" which offers a muddled explanation of the nation's unraveling. And it assiduously avoids calling Chávez what he was: a socialist.

Turkewitz describes Chávez (quoting various observers) as intent on bringing "'democracy closer to the people,'" a populist, "'a hegemon,'" engaged in "'a con,'" and drawn into a "competitive authoritarianism." When Maduro took over, he was intent on finding a way to "consolidate power," Turkewitz explains. She acknowledges that Chávez called himself a socialist but implies that he was misusing the term. Another recent Times article (co-authored by Turkewitz) tepidly describes Chávez's movement as "socialist-inspired."

Accepting that Chávez was a socialist is vital for understanding the underlying cause of the Venezuelan tragedy because it is an ideology that tends to lead to authoritarianism, as F.A. Hayek warned back in 1944. 

The socialist transformation of Venezuela traces back to the 1973 election of President Carlos Andrés Pérez. In 1970, Venezuela had been one of the 20 wealthiest countries in the world measured by gross domestic product (GDP) per capita; Pérez turned the country "into a socialist nightmare of price controls, import substitutions, and protectionism," as the Venezuelan journalist Carlos Ball wrote in a 1992 analysis of the country's troubles in Reason. 

Pérez nationalized the oil industry, which would finance a dramatic expansion of state control over the economy. His government spent more in five years than it had in its prior 143 years of independence. Pérez "made the central bank a cash cow for the treasury," Ball observed, "decreed nationwide salary increases, and enforced central planning. His policies created widespread corruption, since every private endeavor suddenly required multiple permits and licenses from a burgeoning bureaucratic state." 

By the late 1980s, the economy had contracted, inflation was soaring, and the once "vibrant nation with emerging entrepreneurial talent" was thoroughly "derail[ed]," Ball writes. The political and economic crisis was fertile ground for Chávez, who first appeared on the public stage in 1992 after leading a failed coup.

Turkewitz characterizes Chávez as a "messianic leader" (quoting the analyst Phil Gunson), but he was also a cold warrior and Fidel Castro's heir apparent. The Cuban Communist dictator saw in Chávez a way to fulfill his longstanding desire to tap Venezuelan oil wealth to shore up his regime and to extend his revolutionary project to the South American mainland. For his part, Chávez was determined to prove that the world had drawn the wrong lesson from the collapse of Eastern European communism; Chávez believed that Castro, who he referred to as a father figure, had successfully created socialism's "new man." He set out to prove that Castro's revolution in Cuba had worked.

Chávez attributed Cuba's dire poverty entirely to the U.S. embargo. He was thus a textbook socialist of a variety best described in the 1986 book, Third World Ideology and Western Reality, by the Venezuelan journalist and commentator Carlos Rangel.

As Rangel explains, by the early 20th century, Karl Marx's theory that a communist revolution would occur when the proletariat toppled the bourgeoisie had failed to come to pass; "Third World ideology," as Rangel calls it, came to the "rescue." In this new framework, which was sketched out in a 1916 pamphlet by Vladimir Lenin, imperialist countries took the place of the bourgeoise and the oppressed peoples of the world took the place of the proletariat. Class conflict was left behind, and Marxism was transformed into an ideology of liberating the people from the oppressive forces of American imperialism. 

This was Chávez's creed, and he set out to turn Venezuela into a command-and-control economy in the service of man's liberation from the capitalist values of the U.S. empire. 

Chávez converted Venezuela's government-run trade schools into ideological reeducation programs for studying the work of Che Guevara and other socialist thinkers. He seized the ownership of large companies from private individuals and transferred control to the rank and file, so that work would no longer erode their humanity. He nationalized banks, food processors, oil drills, the phone company, vacation homes, a gold-mining outfit, millions of acres of farmland, ​​supermarkets, stores, and industrial manufacturers. He discussed Marxist theory for hours on his television show.

Chávez mandated that the companies he expropriated adopt worker control on the factory floor so that the rank and file would no longer feel alienated from the fruit of their own labor. The result was to displace competent managers and technicians with political operatives promoted for going to government rallies and wearing the movement's signature red T-shirts. Productive factories turned to mob rule. Gunfights broke out on the factory floor. Production collapsed.

After Chávez's death, Maduro continued to pay lip service to socialism—and to blame the United States for all of Venezuela's problems—but he had no real ideological fervor. "The Terminal Stage of Communism Is a Mafia," as Martin Gurri recently observed about post-Castro Cuba, and the same insight applies perfectly to Venezuela. 

But did Chávez's policies lead to Maduro's criminality? Turkewitz answers that question by meekly observing that Chávez had veered authoritarian and Maduro continued down the same path.

The connection can be found in Hayek's 1944 book, The Road to Serfdom, the classic analysis of how even well-intentioned socialism can lead to totalitarianism. To create a socialist state, you need to force people to do unsavory things, observed Hayek. "Socialism can be put into practice only by methods which most socialists disapprove." The "readiness to do bad things becomes a path to promotion and power." Under collectivism, "a man must be prepared to break every moral rule." 

Over his 14 years in office, Chávez became increasingly authoritarian because turning Venezuela into a socialist paradise wasn't working out as he had planned. Over time, Marxism "gains virulence since its faithful tend to attribute the previous failures of their pseudoreligion to lack of fervor, devotion and human sacrifices," Rangel wrote.

After Chávez was nearly removed from office in a 2002 military revolt, he accepted help from Cuba to train a secret military counterintelligence force that serves today as the most brutal enforcer of Maduro's will. He destroyed the free press because it was sowing doubt about the effectiveness of his policies, undermining his ability to liberate the populace from its capitalist values. He coopted the independent judiciary because it stood in his way.

Expropriating property and enforcing price controls requires a particular mettle. In a 2007 episode of his television show, Chávez described how his administration dealt with farmers who refused to sell their cattle. "Fine—we'll come in with the National Guard, load the cattle onto a truck, and send it to the slaughterhouse ourselves," Chávez told the audience. "That's what we'd do the first time….If it happened again,…we'll expropriate the farm!" The audience cheered. "We'll hand it over to the community councils—to the people—so they can produce their own food!"

The most famous victim of Chávez's expropriations was a farmer named Franklin Brito, who turned down compensation for his land and went on a hunger strike instead, prompting Chávez's Communications Minister Andrés Izarra to tweet: "Franklin Brito smells like formaldehyde."  

For her essay in the Times, Turkewitz interviewed Izarra, who is now one of the most vocal members of a community of former Chávez officials who oppose Maduro. Turkewitz quotes his bland observation that Chávez's goal was "to bring 'democracy closer to the people.'" She doesn't mention that Izarra was a doctrinaire socialist who thrived under Chávez because of his own authoritarian tendencies. 

In 2007, Izarra backed Chávez's decision to shut down Radio Caracas Television, the nation's most important television network, telling the Times at the time that the station's demise was representative of how "the oligarchy that once controlled Venezuela is finally coming apart." The goal, he said in a different interview, was "to make it so that socialist ideas and collectivist values ​​and solidarity prevail over capitalist values." In 2008, he defended Chávez's decision to expel Human Rights Watch from the country, accusing the organization of being a cover for planned U.S. interference.

As Yale's Greg Grandin understood when writing his obit of Chávez for The Nation, it's much easier to remake society if you're an authoritarian unphased when a farmer is willing to die in defense of his property. (Franklin Brito starved to death in 2010.) Nicólas Maduro was a rising star under Chávez because he was a ruthless henchman. He did whatever the boss wanted, and then when the boss died, he became the boss. 

Bland observations that Chávez was merely a "messiah" or a "populist" dishonor the victims of the Venezuelan tragedy. At the very least, we can learn something useful from the destruction of their country.

The post How Chávez's Socialist Revolution Created the Venezuelan Dictator Nicólas Maduro appeared first on Reason.com.

The year was 2007, the Iraq War was in full swing, and Congress was struggling to exercise its oversight. Despite a Democratic blowout in the midterm elections driven by public opposition to the war,  then-president George W. Bush wanted to "surge" thousands more U.S. troops into Iraq. Democrats proposed a resolution condemning the plan.

A freshman representative from Minnesota, a retired Army master sergeant named Tim Walz, stood up in support of the resolution. "Some have said that this debate sends a message to our enemies, and I would agree. The message our enemies are hearing this week is that democracy in America is alive and well," he said. "The geniuses of the founders of this country are on display right now," Walz added, praising Congress' constitutional role in overseeing war.

Walz is now governor of Minnesota—and on Tuesday, he became the Democratic candidate for vice president. Picking him could be a sign that a future Harris administration might exercise more foreign policy restraint; Vice President Kamala Harris' national security adviser, Phil Gordon, has also built a public profile around learning from the mistakes of regime change campaigns, such as the Iraq War.

For all his strong feelings about war powers, however, Walz has also shown a tendency to shrink from tough political fights on the issue. During the debate over the surge, Walz voted to force the U.S. military to withdraw from Iraq within 90 days. Yet less than five months later, he voted to continue funding the war. It was a position that put him at odds with a majority of his Democratic colleagues.

"In my district I wasn't hearing [during the campaign] an overall cry that the troops have to out by midnight tomorrow," Walz told NBC News. "My fear is if the pullback of troops was either delayed or sped up based on politics, that that's dangerous."

A similar pattern unfolded throughout Walz's congressional career. According to voting records compiled by Peace Action, an antiwar advocacy group, Walz often voted to repeal the War on Terror-era authorizations for the use of military force (AUMFs), while also voting against restrictions or cuts to military funding.

When war broke out with the Islamic State in Iraq and Syria, then-president Barack Obama asked Congress for a new AUMF. The bill authorized war but excluded "enduring offensive ground combat operations" against the Islamic State and "associated forces" for a three-year period. Walz thought it was a good compromise option. 

"The president is trying to get a fine line between not tying his hands and recognizing the fact that Americans, I would say rightfully so, are worried about open-ended conflicts," Walz told the Mankato Free Press, a local newspaper.

When that bill failed, the Obama administration claimed that the war was authorized anyways under the 2001 AUMF against Al Qaeda and the 2002 AUMF against Iraq. Walz continued to push for war powers reform—and against any congressional enforcement of those reforms.

For example, in May 2016, Walz voted to repeal the 2001 AUMF. The following month, he voted against a bill that would put an expiration date on war funding under the 2001 AUMF and against another bill that would defund military operations in Iraq and Syria unless a new AUMF could be passed.

This middle-of-the-road stance continued under former president Donald Trump. In 2017, after Trump ordered airstrikes against the Syrian government for using chemical weapons against civilians, Walz stated that the bombing was "clearly warranted," even though "any further military action" needs permission from Congress, "especially if it may risk putting more of our men and women in uniform into harm's way."

Walz left Congress in 2019, and hasn't had to deal with many foreign policy issues as governor of Minnesota—with the notable exception of the war in Gaza. He condemned the Hamas attacks on Israel in October 2023, endorsed the general idea of a ceasefire in March 2024, and praised pro-Palestinian protests for being "civically engaged." None of these statements suggest that he'll take a hard line in any direction.

As a member of Congress and a governor, Walz has been able to play the moderate, showing skepticism of war without aggressively fighting to stop it. As a candidate for the White House, he won't be able demur as easily. The man who started his career praising restraints on the president may soon have those principles put to the test.

The post Tim Walz Is Against Unaccountable Wars—but He Voted To Fund Them Anyways appeared first on Reason.com.

The Nikkei just had its worst day since 1987, and the U.S. stock market, which already took a dramatic dive Friday, is tumbling further this week. While it was America's poor jobs report that spurred the global sell-off, there is much we can learn from other countries' experiences—particularly Japan's.

There was a time when leading economists predicted Japan would overtake the United States as the world's leading economy. Instead, the Japanese central bank's loose monetary policy produced a real estate bubble, which eventually burst. The government responded with "stimulus" and easy credit, which dramatically increased the nation's debt and extended the poor economic conditions. The result was the "lost decade" of 1991–2001, characterized by multiple recessions, poor economic growth, high taxes, and high inflation.

In the U.S. now, the total debt held by the public recently surpassed $35 trillion—just 209 days after hitting $34 trillion. Add unfunded obligations for Social Security and Medicare, and that $35 trillion becomes $113.2 trillion. 

And yet, few Americans seem to be phased by the news. Economist Brian Reidl laments, "Few voters, or even politicians, have fully grasped how perilous Washington's fiscal outlook has become."

Japan's lost decade didn't just hurt government balance sheets; it brought long-lasting damage to the Japanese people. As deficits and debt crowded out government spending, life became increasingly expensive for the average person in Japan. Despite two short-lived income tax cuts (a yearlong tax cut from 1994–1995 and a two-year cut spread from 1998–2000), long-term aggregate consumption was hindered when the government raised a consumption tax to pay down the rising national debt.

With such weak economic growth, Japan saw a decline in middle-class incomes and employment—and marriage and birth rates. There was an increase in single-person households, individuals living with their parents, and related mental health issues. This "lost generation" is still reeling from the poor fiscal responsibility of those that came before them. I look at the frighteningly high suicide rate in Japan and wonder whether American kids will come to see the world in the same way.

Here in the U.S., net interest payments on the national debt have now exceeded military spending, Medicaid, and all government spending on children. Meanwhile, politicians on both sides of the aisle are happy to ignore debt and unfunded obligations, promising not to touch middle-class entitlements out of fear of losing an election. The combined Social Security Old Age and Survivors and Disability Insurance Trust Fund is expected to exhaust its reserves by 2033. Medicare Hospital Insurance is on track to be insolvent by 2036, and the rest of Medicare is expected to experience major stress. Are we headed in the same direction as debt-drenched Japan?

If there is reason for fear, there is also reason for hope. Americans can rein in heavy-spending politicians and an activist central bank with tools like a balanced budget amendment, constitutional tax and spend rules that would limit wasteful spending and keep the government accountable to the people, and a money growth rate rule which would reduce uncertainty about the future purchasing power of the dollar and prevent political actors from using the Federal Reserve to advance political goals. 

It's not too late to stop the debt crisis and the disastrous financial and social effects it could bring. Let the big red sun in Japan's flag be a blinking red warning light.

The post Lessons for the U.S. from Japan's Lost Decade appeared first on Reason.com.

Now that it seems like every single national election cycle in this country is suffused with accusations of fraud and malfeasance, it's worth looking to a country experiencing an actual stolen election to provide some sense of clarity.

Venezuelans went to the polls on Sunday, July 28. The incumbent president, Nicolás Maduro, stood for a third consecutive six-year term against Edmundo González, the country's former ambassador to Argentina.

Early the following day, the government announced that with 80 percent of votes counted, Maduro had prevailed with 51.2 percent of the vote to González's 44.2 percent.

To Maduro's opponents, this seemed fishy: Polls taken earlier in July and collected by the Americas Society and the Council of the Americas showed Maduro polling between 12 percent and 25 percent, with González comfortably ahead, anywhere from 59 percent to 72 percent. An exit poll conducted by Edison Research at 100 polling locations corroborated this, finding that González outperformed Maduro by more than 2 to 1, capturing 65 percent to Maduro's 31 percent.

In other words, the official government results suggest that Maduro at least doubled, and potentially quadrupled, his support literally overnight—at a time when the country is still experiencing an economic crisis marked by dire poverty, hyperinflation, and millions of Venezuelans fleeing the country.

Others have echoed this skepticism. "There are clear signs that the election results announced by Venezuela's National Electoral Council do not reflect the will of the Venezuelan people as it was expressed at the ballot box on July 28," U.S. National Security Council Spokesperson Adrienne Watson said in a statement.

"We have serious concerns that this result does not reflect the will and the votes of the Venezuelan people," a senior U.S. State Department official said after the results were announced. "We call for the immediate publication of detailed precinct-level polling to ensure accountability."

Private organizations sounded the alarm, as well.

"Venezuela's 2024 presidential election did not meet international standards of electoral integrity and cannot be considered democratic," announced a July 30 statement from the Carter Center, which had observers in the country on election day. "The Carter Center cannot verify or corroborate the results of the election declared by the National Electoral Council (CNE), and the electoral authority's failure to announce disaggregated results by polling station constitutes a serious breach of electoral principles." The statement did allow that its observers "noted the desire of the Venezuelan people to participate in a democratic election process," but "their efforts were undermined by the CNE's complete lack of transparency in announcing the results."

There is mounting evidence of government chicanery to secure Maduro's reelection. For example, González was not even the opposition's first choice of candidate: Former lawmaker María Corina Machado received more than 90 percent of primary votes in October 2023, but Maduro's government banned her from seeking office for 15 years. After the election, six masked assailants broke into and ransacked Machado's campaign headquarters. Machado now says she is in hiding, "fearing for my life, my freedom, and that of my fellow countrymen from the dictatorship led by Nicolás Maduro."

And even though the government has not released precinct-level voting data, the opposition has taken up the task itself.

Venezuela uses electronic voting machines which print out a tally at the end of the day. The tallies are signed by poll workers and observers, and the political parties are allowed to take a copy. Each tally sheet also has a QR code for authentication.

Even before the election, the opposition enlisted thousands of volunteers to collect tallies for verification. The results of the independent count are published online. As of this writing, with more than 25,000 tallies counted—representing 83.5 percent of all ballots cast—González received 67 percent to Maduro's 30 percent.

Over the weekend, The Washington Post reported that it was able to independently verify "23,720 of the tally sheets that were scanned and posted online by the opposition," constituting 79 percent of the total vote tallies, and determined the exact same 67–30 split. "Even if Maduro won every vote on the remaining 21 percent, assuming a similar turnout," the Post determined, "he would still fall more than 1.5 million votes shy of González." The research firm AltaVista also conducted an exit poll using 5 percent of total vote tallies as collected by the opposition; the results similarly show González with 66.12 percent and Maduro with 31.39 percent.

There are more granular problems with the government's position, too. Daniel Di Martino, a Ph.D student in Economics and a graduate fellow at the conservative Manhattan Institute, observed on X that in the government's official results, the percentages all end in zeroes at the hundredths position—clean and convenient, but statistically, a near impossibility. "They picked the share of the vote and they multiplied it times the number of votes," Di Martino surmised.

The likelihood of the Venezuelan election "result" rounding exactly as they reported is 1 in 1,000,000,000,000 (1 trillion).

The Venezuelan socialist regime is INCOMPETENT even at election fraud. They picked the share of the vote and they multiplied it times the number of votes. pic.twitter.com/O225QOAXe2

— Daniel Di Martino ???????????????? (@DanielDiMartino) July 31, 2024

In other words, it's increasingly evident that the Venezuelan government cooked the books to achieve its desired outcome. So it's useful to contrast the Venezuelan election with some rhetoric that U.S. politicians have used in recent years to claim massive vote fraud when the results simply don't go their way.

Most prominently, former President Donald Trump obstinately refused to believe that he had not won reelection in 2020, filing numerous fruitless lawsuits and cozying up to whoever pushed the most asinine theories. To this day, Trump still insists—against all evidence and common sense—that he was robbed of an electoral victory.

Many Republicans followed his lead, echoing his stolen-election allegations and submitting bills that would make voting more difficult. In the 2022 midterm elections, garnering Trump's endorsement seemed to hinge on whether you proclaimed that the previous election was stolen. In fact, policing voter fraud has long been a Republican hobbyhorse, even though actual instances of voter fraud are vanishingly few.

Republicans are not the only major U.S. political party to engage in election skepticism. Since losing the 2016 election, Hillary Clinton has repeatedly floated the idea that Trump's victory was not on the up-and-up. In November 2017, Clinton told Mother Jones that "there are lots of questions about its legitimacy," primarily as a result of a Russian disinformation campaign that "wasn't just influencing voters—it was determining the outcome." (To be clear, this campaign largely consisted of targeted Facebook ads and coverage on the now-defunct news channel Russia Today.)

In a September 2019 CBS News interview, Clinton said that Trump "knows he's an illegitimate president" because of "the many varying tactics they used, from voter suppression and voter purging to hacking to the false stories"—a grab bag of excuses, many of which have proven largely unfounded. In October 2020, she told The Atlantic's Edward-Isaac Dovere that "there was a widespread understanding that this election [in 2016] was not on the level. We still don't know what really happened."

Similarly, after narrowly losing the race to become Georgia's governor in November 2018, Stacey Abrams gave a concession speech in which she pointedly did not concede.

"I acknowledge that former Secretary of State Brian Kemp will be certified as the victor in the 2018 gubernatorial election," Abrams said. But "I will not concede because the erosion of our democracy is not right."

"It was not a free and fair election," Abrams told MSNBC's Chris Hayes later that month. "We had thousands of Georgians who were purged from the rolls wrongly….Brian Kemp oversaw for eight years the systematic and systemic dismantling of our democracy and that means there could not be free and fair elections in Georgia this year."

To be clear, this is not to draw a direct parallel between Trump's actions after the 2020 election, and Clinton's and Abrams's grousing about their own respective electoral defeats. Trump went much further, filing dozens of meritless lawsuits trying to create a victory out of whole cloth; he even leaned on Georgia Secretary of State Brad Raffensperger to "find" enough votes for him to win the state and implied that Raffensperger could face criminal prosecution if he did not. Trump's efforts, undertaken while he still held the presidency, would eventually lead hundreds of his supporters to storm the U.S. Capitol in an attempt to subvert the results of the election and force Congress to certify Trump as the winner.

Meanwhile, neither Clinton nor Abrams held political office when making their claims of illegitimate elections, and no supporters showed up in droves to sack a government building.

But in either case, haphazardly throwing around allegations of election fraud is unseemly in a nation that sees blessedly little actual, verifiable fraud. American voting precincts regularly conduct recounts, in plain view of the public. And an American president has yet to ban an opponent from running for office.

In Venezuela, on the other hand, people are taking to the streets to protest actual, verifiable fraud in their own presidential election.

We should count ourselves lucky to have a largely free and fair system—Venezuelans certainly can't.

The post Venezuela Shows What an Actual Stolen Election Looks Like appeared first on Reason.com.

The U.S. is headed for "the most predictable economic crisis in history," as Bill Clinton's former White House chief of staff once put it. Why? Because of the mountain of federal debt that we keep making bigger and bigger.

For the first time since the wartime economy of the late 1940s, U.S. debt is roughly equal to the value of all the goods and services our economy produces in a year. When World War II ended, all that spending on tanks and aircraft came to a quick end. But the major drivers of today's debt crisis are Medicare and Social Security, and their price tags are set to keep rising. So what does President Joe Biden promise to do about this looming crisis? Absolutely nothing. And Republican lawmakers have cheered him on.

"Tonight, let's all agree," Biden said in his 2023 State of the Union address, "we will not touch social security. We will not cut Medicare. Those benefits belong to the American people…I'm not gonna allow them to be taken away—not today, not tomorrow, not ever. But apparently it's not going to be a problem."

Doing nothing might not be a political problem today, but it will become one as the debt wreaks havoc on the U.S. economy.

We already spend more on paying interest on the federal debt than we do on Medicaid and defense. Even if rates remain at 4 percent for the next few decades, annual interest payments are projected to surpass what we spend on Medicare and Social Security.

It's like having a ballooning credit card bill that gradually swallows up your entire salary.

Interest rates are like a time bomb. If they rise to 5, 6, or 7 percent, the cost of borrowing will increase so much that federal debt would be on track to surpass 300 percent of gross domestic product—or three times higher than World War II levels. Eventually, interest costs would consume nearly all of annual U.S. tax revenues.

The cause is no mystery. The combination of rising health care costs and 74 million retiring baby boomers is causing annual Social Security and Medicare costs to explode.

Social Security and Medicare have special revenue sources, but if nothing changes by 2034, these two programs will be collecting $2.6 trillion annually in payroll taxes and related revenues while spending $4.8 trillion in benefits and associated interest costs.

Republicans blame all the spending on Democrats. But former President George W. Bush signed legislation that collectively added $6.9 trillion in debt. And former President Donald Trump approved $7.8 trillion in new legislation in just one term. For both presidents, this includes both huge new spending bills and trillion-dollar tax cuts.

Republicans like to talk about slashing social spending, but to balance the budget we'd need to completely eliminate all funding for veterans' benefits, child credit payments, the earned income tax credit, school lunches, disability benefits, K-12 schooling, health research, unemployment benefits, food stamps, homeland security, infrastructure, embassy security, federal prisons, border security, and much more.

There's not much appetite for that.

The most basic progressive narrative is that deficits don't matter and that taxing the rich can eliminate the deficit. But approximately 70 percent of the 2001 and 2017 tax cut costs and subsequent extensions went to the middle and lower classes. If you size up their fiscal impact, only a tiny sliver can be attributed to "tax cuts for the rich."

Seizing every home, yacht, business, and investment from America's 800 billionaires would fund the federal government for just nine months. And then the money would be gone. So would your 401(k), given that most of this wealth would be seized from the stock market, causing the S&P 500 to crater.

There simply aren't enough millionaires, billionaires, and undertaxed corporations to close Social Security and Medicare's projected $124 trillion cash shortfall over three decades or—as some Democrats propose—to finance a generous social democracy for 330 million Americans.

There's no way to protect current retirees from the impact. And there is no way to tweak our way out of it. Social Security's eligibility age will need to rise and its payout to above-average earners must be curtailed. Medicare will have to become cheaper, and wealthier people are going to have to pay more for it.

"Those benefits belong to the American people," Biden said in his 2023 State of the Union address. "They earned it. And if anyone tries to cut Social Security, which apparently no one's going to do. And if anyone tries to stop Medicare, I'll stop them. I'll veto it."

Should we blame Biden and the politicians applauding him for their unwillingness to risk addressing our looming fiscal insolvency?

Actually, voters are mostly to blame.

We simultaneously call for a balanced budget, higher spending, and no more taxes. We vote for Santa Claus candidates from both parties. We're the ones who selected those craven politicians. And eventually, we'll pay the price.

This video essay is adapted from "The Debt Lies We Tell Ourselves," which was the cover story of Reason's August/September 2024 issue.)

Photo Credits: Phil Roeder from Des Moines, IA, USA, CC BY 2.0, via Wikimedia Commons; Kyle Mazza/ZUMAPRESS/Newscom; Everett Collection/Newscom; Gage Skidmore from Peoria, AZ, United States of America, CC BY-SA 2.0, via Wikimedia Commons; JOHN ANGELILLO/UPI/Newscom; Graeme Sloan/Sipa USA/Newscom; Yuri Keegstra from Milwaukee, USA, CC BY-SA 2.0, via Wikimedia Commons; badlyricpolice from Portland, USA, CC BY 2.0, via Wikimedia Commons; Steve Sanchez/Sipa USA/Newscom; Jimin Kim / SOPA Images/Sipa USA/Newscom; National Archives and Records Administration, Public domain, via Wikimedia Commons; Brian Cassella/TNS/Newscom; Ron Sachs/CNP / SplashNews/Newscom; Bastiaan Slabbers/Sipa USA/Newscom; The Circus on SHOWTIME, CC BY 3.0, via Wikimedia Commons; Gage Skidmore from Peoria, AZ, United States of America, CC BY-SA 2.0, via Wikimedia Commons; zumaglobalfourteen671136 (RM); Morgan Phillips/Polaris/Newscom; Mark Hertzberg/ZUMAPRESS/Newscom; Kenny Holston—via CNP/Polaris/Newscom; Ken Cedeno/UPI/Newscom; Hector Amezcua/TNS/Newscom; David Becker/ZUMAPRESS/Newscom; Joseph Sohm / Visions of America/Newscom; SteveSands/NewYorkNewswire/MEGA / Newscom/SSNEW/Newscom/Alex Edelman/Consolidated/dpa, Jacqueline Martin / CNP / Polaris, Ron Sachs/CNP / SplashNews/Newscom, Richard Ellis/ZUMA Press/Newscom, Greg Hauenstein/ZUMAPRESS/Newscom, Blue Origin/ZUMA Press/Newscom, Michael Brochstein/Sipa USA/Newscom, Image Press Agency/Sipa USA/Newscom, Vincent Isore/ZUMAPRESS/Newscom, Lev Radin/Sipa USA/Newscom, Mirrorpix / MEGA / Newscom/ASLON2/Newscom, VANNICELLI/GRILLOTTI/ZUMAPRESS/Newscom

Music Credits: Artful Thief by Kadir Demir, Brightest by Ardie Son, Prism by Ardie Son, Footprints by Ardie Son.

• Video Editor: Adani Samat
• Audio Production: Ian Keyser
• Assistant Editor: Cody Huff

The post The Real Economic Catastrophe Will Be Caused by the U.S. Debt appeared first on Reason.com.

Traditionally, major party presidential campaigns try to pivot towards the center as the summer wanes, the conventions occur, and the election nears.

But if the selection of their running mates is any indication, both former President Donald Trump and Vice President Kamala Harris seem to believe it's more important to double down on their respective party's versions of economic progressivism.

Harris named Minnesota Gov. Tim Walz as her running mate on Tuesday, rounding out her hastily assembled presidential ticket. Walz was the favored choice for many left-wing Democrats—Sen. Bernie Sanders (I–Vt.) and Jacobin magazine both lobbied on his behalf in recent days—who saw him as a better candidate than Pennsylvania Gov. Josh Shapiro, the centrist option who was the widely perceived favorite in Harris' veepstakes.

As governor since 2019, Walz has steered Minnesota towards the left on a variety of economic and social issues. He signed into law a "California-style" environmental bill aimed at cutting emissions and transitioning the state to 100 percent clean energy by 2040. He's expanded access to free college for low-income residents of the state and has tightened the state's gun laws.

Walz campaigned in 2018 on a promise to raise Minnesota's gas tax. He has also proposed a new individual income tax rate of 10.85 percent—higher than the current top tax bracket of 9.85 percent, which is already one of the highest state income taxes in the country—on Minnesotans who earn more than $1 million, and he's called for a new tax on capital gains and dividends.

None of those measures have passed, thanks to the state legislature, but Walz has been eager to argue that the government should be able to gobble up more of wealthier Minnesotans' assets. "We can cut taxes for the middle class without cutting taxes for massive corporations and the wealthiest people in Minnesota. They don't need a tax cut," Walz said in his 2022 State of the State address.

As is sometimes the case, Walz's progressive tendencies have overlapped with libertarian interests on topics like criminal justice reform and drug legalization. He signed the bill that legalized marijuana in Minnesota in 2023, and in 2019 Walz signed legislation to reduce the use of solitary confinement in Minnesota prisons. He's also signed a major permitting reform bill.

But those attempts at limiting the government's power over people sit awkwardly alongside the worst part of Walz's record: his heavy-handed approach to the COVID-19 pandemic. With Walz's approval, public schools in Minnesota required children as young as 5 years old to be masked all day.

Under his watch, Minnesota's public health authorities set up a hotline to allow people to report their neighbors for violating the state's strict social distancing rules, which included the threat of 90 days in jail for violators. When Republicans in the state legislature called for the hotline to be shut down, Walz defended it. He also told pandemic-weary Minnesotans to stay away from relatively safe outdoor activities like spending time on the state's famous lakes.

The Harris campaign likely sees Walz's rhetorical skills as one of his key strengths. He's the originator of the idea to label populist conservatives like Sen. J.D. Vance (R–Ohio) as "weird"—an effective attack since it's pretty obviously true, if petty.

But Walz's folksy Midwestern charm doesn't always hit the mark. On at least one occasion, he's described socialism as being akin to "neighborliness." Try pitching that message to Florida voters who fled Castro's Cuba—or, for that matter, any American with a passing understanding of history or economics. (That line gets even weirder when you recall that pandemic era hotline. What exactly does Walz think neighborliness means?)

Ultimately, Harris' selection of Walz is for Democrats a mirror image of Trump picking Vance as his running mate. Both are Midwesterners who believe the government should spend more and more aggressively tell Americans how to live. There is, unfortunately, very little difference between believing that someone should pay more in taxes because they choose not to have kids or because they happen to be financially successful—it's just a question of, as Vance might put it, deciding which perceived enemies you want to punish with state power.

Vance wants the government to be more like a parent, while Walz wants it to be your nosy neighbor. Voters who realize it can't be either of those things won't find much to like about either major party vice presidential nominee this year.

The post Minnesota Gov. Tim Walz, Darling of the Progressive Left, Is Harris' Running Mate appeared first on Reason.com.

The justices are not having it. The order reads in full:

Missouri's motion for leave to file a bill of complaint is denied, and its motion for preliminary relief or a stay is dismissed as moot. Justice Thomas and Justice Alito would grant the motion for leave to file the bill of complaint but would not grant other relief.

This means the Court split 7-2 over whether Missouri should be allowed to file its bill of complaint, but was unanimous in rejecting Missouri's request for relief in this case. (In other words, Justices Alito and Thomas would let Missouri make their case, but would not grant any of Missouri's requested relief, which included enjoining the gag order imposed on Trump by New York courts.)

No doubt some commentators will read this order as an indication that Justices Alito and Thomas believe that Missouri's filing had merit. Those that do so will show they know very little about the Supreme Court's original jurisdiction and the long-standing debate over whether the Court has jurisdiction to reject bills of complaint filed by states against other states.

The reason that Justices Thomas and Alito dissented form the denial of Missouri's motion for leave to file the bill of complaint is because they believe that when a state seeks to invoke the Court's original and exclusive jurisdiction, the Court is obligated to hear the case. This is also not a new view. See, for instance, this dissent by Justice Thomas, joined by Justice Alito, in Arizona v. California. It reads in relevant part:

The Constitution establishes our original jurisdiction in mandatory terms. Article III states that, "[i]n all Cases . . . in which a State shall be [a] Party, the supreme Court shall have original Jurisdiction." §2, cl. 2 (emphasis added). In this circumstance, "[w]e have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given." Cohens v. Virginia, 6 Wheat. 264, 404 (1821) (Marshall, C. J., for the Court).

Our original jurisdiction in suits between two States is also "exclusive." §1251(a). As I have previously explained, "[i]f this Court does not exercise jurisdiction over a controversy between two States, then the complaining State has no judicial forum in which to seek relief." Nebraska v. Colorado, 577 U. S. ___, ___ (2016) (opinion  dissenting from denial of motion for leave to file complaint) (slip op., at 2). Denying leave to file in a case between two or more States is thus not only textually suspect, but also inequitable.

The Court has provided scant justification for reading "shall" to mean "may." It has invoked its "increasing duties with the appellate docket," Arizona v. New Mexico, 425 U. S. 794, 797 (1976) (per curiam) (internal quotation marks omitted), and its "structur[e] . . . as an appellate tribunal," Ohio v. Wyandotte Chemicals Corp., 401 U. S. 493, 498 (1971). But the Court has failed to provide any analysis of the Constitution's text to justify our discretionary approach.

Justice Thomas raised this concern when Nebraska and Oklahoma sought to file a bill of complaint against Colorado over marijuana legalization too.

As I have noted before, Justice Thomas is making a serious argument, and one which I suspect may be correct. Note that this would not mean that the Court has to actually hear oral argument. Rather it would mean that the Court has to accept the bill of complaint and resolve it on the merits—something that would be quite easy to do in a case like this, but might be more difficult in other contexts (e.g. the dormant commerce clause). I suspect the justices do not want to open this door lest they invite other filings in the sorts of cases they prefer to see percolate up through the lower courts, but it is not clear to me the Constitution gives the Court that choice.

The post Supreme Court Rejects Missouri's Attempt to Sue New York Over Trump Prosecution appeared first on Reason.com.

Happy Tuesday and welcome to another edition of Rent Free. This week's stories include:

• Vice President and presumptive Democratic presidential candidate Kamala Harris is rushing to moderate her former progressive position—except on rent control.
• California Gov. Gavin Newsom has issued an executive order intended to speed up the development of infill housing. Will it do any good?
• A study looks at the tendency to just keep adding more regulation.

But first, our lead story about a development moratorium in Minnesota motivated by standard NIMBYism, and potentially something much darker.

A Town Revolts Against a Planned 'Muslim-Friendly' Community

On Sunday, The New York Times published an in-depth look at a development battle in Lino Lakes, Minnesota, where a local farmer's plan to sell his land to a developer hoping to build a "Muslim-friendly" community with shops and a mosque provoked a backlash from residents worried about overdevelopment and, in more than a few cases, more Muslims moving to town.

The town has since passed a development moratorium pretty plainly aimed at stopping the planned community—a decision that project supporters chalk up largely to bigotry.

The leader of the slow growth opposition to the development stressed to the Times that he's not opposed to Muslims moving town but is concerned about the creation of a "segregated" community and overdevelopment generally.

Folks can read the Times story and decide for themselves how big of a factor bigotry played in prompting the town to adopt a building moratorium.

What's striking about the story is just how ordinary it is. But for the anti-Muslim backlash the planned community received, the Times story could as well have been about countless other efforts to stop new development in exurban America.

Just last year, I wrote about a startlingly similar case in Caroline, New York, near Ithaca. A local farmer wanted to sell some of his land for a new Dollar General store. Residents worried about overdevelopment organized and got the town government to impose a building moratorium. This then sparked a wider fight over whether the then-unzoned town should adopt a zoning code to check future suburban sprawl. (Spoiler: the pro-zoning forces eventually won.)

In Caroline, the slow-growth crowd wasn't anti-Muslim bigots, but rather largely liberal staff and faculty from nearby Cornell University worried about the environmental and aesthetic impacts of more commercial development.

Regardless of motivation, slow-growth politics ended up producing the same result in both towns. Farmers were stopped from selling their land and retiring. Developers weren't allowed to proceed with building something new. Average residents (or would-be residents) lost out on new homes and new places to shop.

Obviously, aesthetic concerns about chain stores are not as odious as outright racial or religious prejudice. Civil rights law and the U.S. Constitution offer people protection against such discrimination.

Yet, so long as local governments retain a veto over new homes and new businesses in the name of shaping the character of their community, they're going to use that veto.

Property owners are left guessing whether the rejections they've received from city hall are merely arbitrary or something more sinister.

It would be better to protect landowners' rights to develop their land as they see fit, and limit regulations to controlling nuisances and other major externalities caused by new development.

A Moderating Kamala Harris Doubles Down on Rent Control  

At her first major campaign rally last week, Vice President Kamala Harris re-upped her support for rent control as part of a strategy for bringing Americans' cost of living down.

"On day one, I will take on price gouging and bring down costs. We will ban more of those hidden fees and surprise late charges that banks and other companies use to pad their profits. We will take on corporate landlords and cap unfair rent increases," said the presumptive Democratic nominee.

Harris previously endorsed President Joe Biden's proposal to cap annual rent increases at 5 percent for existing buildings owned by landlords who own 50 or more units, for two years. In 2019, she also endorsed Oregon's passage of the nation's first state-wide rent control policy.

The fact that she's sticking to this position is conspicuous.

Since the start of her 2024 campaign, Harris has rushed to disavow her most progressive stances. The new Harris no longer supports banning fracking, single-payer health care, and a mandatory gun buyback program.

But on rent control, she's sticking to her guns. It's evidence of a remarkable shift of the Overton Window.

Rent control once had (and among economists, still does) a rock-bottom reputation. The policy might provide lower rents and more stability for some existing tenants but at the cost of new housing supply, housing quality, and (for anyone who doesn't get a rent-controlled apartment) higher housing costs.

A supermajority of economists surveyed by the Kent A. Clark Center for Global Markets at the University of Chicago's Booth School of Business agreed that the Biden administration's rent control policy would "substantially" reduce the availability of apartments.

Nevertheless, Harris is making federal rent control—a policy the U.S. hasn't had since World War II—a centerpiece of her allegedly more moderate 2024 presidential run.

Perhaps that's good politics.

Inflation and persistently high rents and home prices have made housing costs a more salient national political issue. The electorate has been willing to tolerate increasingly aggressive regulation of the rental housing market, from new state-level rent control policies to a Trump-initiated, Biden-continued nationwide eviction ban.

Still, good politics doesn't equal good policy. Rent control has been widely derided as a terrible, counterproductive idea for good reasons. If a future Harris administration succeeds in adopting rent control, those reasons will become painfully clear.

Newsom's New Executive Order on Infill Housing

This past week, California Gov. Gavin Newsom issued a new executive order to streamline the production of infill housing in existing urban areas.

The executive order includes a range of ideas, some more fleshed out and potentially productive than others. Most promising is the governor's direction to state departments to comb over the state building code to find opportunities to lower building costs and increase flexibility for developers.

University of California, Davis law professor Chris Elmendorf said on X that this could kickstart efforts to speed up the adoption of single-stair reform—that is, allowing new apartments to be built with only a single-stair case. Existing building codes require most multi-family construction to come with two staircases. Critics argue this requirement increases building costs and limits developers' ability to build family-friendly floor plans with more bedrooms and less common space.

New @GavinNewsom directive to his team: let's clear path & reduce cost of infill housing development.

Good idea! But what does/should it mean in practice? A short ????.
1/8https://t.co/ljB0ozlDnV pic.twitter.com/SF285DCXWB

— Chris Elmendorf (@CSElmendorf) July 31, 2024

Elmendorf is more wary about Newsom's plan to create a task force to explore "the use of infill housing as a mitigation strategy for transportation and housing projects with significant environmental impacts."

That could result in cities getting a powerful fiscal incentive to allow new apartments. Or it could see builders subjected to additional taxes when creating new greenfield development.

As with all California housing policy, the devil is in the exceedingly complicated details.

The One-Way Regulation Ratchet

Middlebury professor Gary Winslett has an interesting thread on X about a 2021 Nature study that finds a tendency to try to fix problems by adding features instead of taking them away.

There's an article from Nature a few years ago that I think about a lot when it comes to why there's so much over-regulation.
People have a strong bias in favor of adding features over removing them to solve a problem. Consider this Lego problem…
@scottlincicome @EricBoehm87 pic.twitter.com/WEfhmtmo0S

— Gary Winslett ???????????? (@GaryWinslett) August 2, 2024

This pops up time and time again in land use regulation, says Winslett. When zoning and other requirements raise the costs of building housing, policymakers don't respond by paring back regulation. Instead, they pile new mandates and restrictions on builders in the hopes that they produce more affordable housing.

Quick Links

• Over at The Atlantic, Derek Thompson asks where all the urban families went.
• San Francisco's futile encampment sweeps.
• Los Angeles hopes they'll be more successful at getting tents off the streets with more state resources.
• Michael Lewyn on Project 2025 and housing policy.
• The American Enterprise Institute has a new short documentary on the "forgotten solution to the housing crunch."

The post No Muslims In My Backyard? appeared first on Reason.com.

How will the economy affect Democrats' chances? The party in charge tends to be, rightly or wrongly, tied to current economic conditions in the minds of voters. So recent economic funkiness—a bad jobs report, trepidation about whether the Federal Reserve will act to ratchet down interest rates, headlines about stock market plunges abroad—could end up very bad for Democratic frontrunner Kamala Harris, reports Politico.

It's not just that, though. It's also that Harris is, to some degree, claiming the Biden administration's accomplishments and priorities (junk fees, student loan debt) as her own. So an economy in shambles would be a liability for her, in addition to the fact that President Joe Biden tasked her with handling the crisis at the southern border, which spiraled out of control and led to a record number of border encounters in December 2023.

"We cannot win if people think we're headed into a recession," William Owen, a Democratic National Committee member from Tennessee, told members of the campaign and the party, according to Politico. "Negative news about the economy is going to weigh down the Harris campaign," Republican pollster Micah Roberts told The Wall Street Journal.

"TRUMP CASH vs. KAMALA CRASH!" wrote former President Donald Trump, inartfully, on Truth Social, as he unloaded message after message blaming yesterday's global stock sell-off on Democrats. The economy, and the degree to which a president affects things like unemployment and stock market downturns, is obviously not as simple as he's portraying. But also, he is right to blame "Bidenomics"—which Harris has touted—for a significant part of Americans' economic woes. Reason has done the same.

Biden's policy vision "had many facets—pandemic aid, industrial policy, handouts for labor unions and public workers," wrote Reason's Peter Suderman earlier this year. "But in many ways, it could be reduced to a single, overriding response: government spending."

"Bidenomics was, at heart, a philosophy of throwing money at programs, people, political allies, and favored constituencies," continues Suderman. "That spending contributed directly and significantly to the rapid rise in inflation that helped fuel voter dissatisfaction with the state of affairs."

The outstanding question remains whether Harris' proposed policies would align with Bidenomics or something less (or more) fiscally damaging. Right now, she's mostly chosen to ride out her honeymoon period campaigning almost entirely on vibes, with nary a policy proposal in sight.

Is the economy even as bad as headlines claim? "The decline in the S&P 500 comes less than three weeks after hitting an all-time high and its percentage decline to date hasn't even met the 10% threshold commonly defined as a correction," reports The Wall Street Journal. "Despite the rise in the unemployment rate, other economic indicators, such as retail sales, payrolls and industrial production, are still growing. Stocks fell by more than that twice when Trump was president, in 2018, without signaling recession."

They're not being Pollyannaish or contrarian; there really are mixed indicators that make it quite unclear where we're headed. "Everything about the economy is noisy," Jason Furman, an economic adviser to former President Barack Obama, told the Journal. It's unclear where we're headed.

The main thing that is clear, though, is that both Harris and Trump will blame economic conditions on the other party, and both of them will be a little bit right when they claim that the other will make life more expensive for the little guy. Harris' continuation of big-government Bidenomics or Trump's likely 10 percent tariffs on all imported goods (with possibly higher for those coming from China) would both be bad for Americans. Let's hope our economy is durable enough to withstand the policies of whichever bozo takes office.

Scenes from New York: Robert F. Kennedy Jr. admitted to dumping a bear carcass in Central Park back in 2014 as a joke. He found the bear as roadkill and stuffed it in his car (along with an old bike) before heading to Peter Luger Steak House in Williamsburg. Then needing a way to get the bear out of his car, he left it in Central Park with the bike, trying to make it look like a cyclist had hit it. I mean, who among us?

QUICK HITS

• "Whether Monday's wild gyrations mark the final bang of a global selloff that started to build last week or signal the beginning of a protracted slump is impossible to know. But one thing is clear: the pillars that had underpinned financial-market gains for years—a series of key assumptions that investors across the world were banking on—have been shaken," reports Bloomberg. "They look, in hindsight, a bit naïve: the US economy is unstoppable; artificial intelligence will quickly revolutionize business everywhere; Japan will never hike interest rates—or not enough to really matter."
• Really good explanation of what's been happening in the U.K. under Keir Starmer by thinker/musician Winston Marshall.
• Yesterday, U.S. District Judge Amit Mehta issued a massive defeat for Google, specifically its dominance in search, in the biggest antitrust decision in 25 years. "Google is a monopolist, and it has acted as one to maintain its monopoly," wrote Mehta in his ruling.
• "As the site of nearly 200 French nuclear tests from 1966 to 1996, French Polynesia developed fast. Before it started detonating nuclear weapons, Paris gifted Tahiti its first airport and modern port. Polynesians employed by the nuclear industry left their palm-frond homes to live in newly built housing blocks on Tahiti, the largest of the territory's 120 or so islands. Tourists arrived, too, lured by the coral-edged beaches and tales of a mighty wave at Teahupo'o," writes The New York Times on the complicated legacy of the French in Tahiti.
• Kamala Harris just picked Minnesota Gov. Tim Walz—the man who started the recent trend of getting on TV and calling Republicans, especially J.D. Vance, weird—as her running mate.
• Checking in on Walz:

Lying about being deaf to try to get out of an arrest is actually the most Larry David move possible https://t.co/p0LhmEzede

— Liz Wolfe (@LizWolfeReason) August 5, 2024

• This terrible gentle-parenting influencer (who goes by "Mrs. Frazzled") deserves to be skewered:

"I've never been good at understanding how the economy works," so I plugged some shit into ChatGPT and scrolled Center for American Progress bc Kamala has no policies on her site and doesn't speak to press, and then I just uncritically accepted whatever they told me! INFLUENCED! https://t.co/BWFZ02JphW

— Mary Katharine Ham (@mkhammer) August 5, 2024

The post A Recession for Kamala? appeared first on Reason.com.

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On July 30, the U.S. Court of Appeals for the Fifth Circuit ruled that the district court should not have granted the United States a preliminary injunction ordering Texas to remove a barrier lying in the Rio Grande River. The case was United States v. Abbott, and it was decided on the issue of navigability. However, the case also has implications for states' power to wage defensive war—and particularly defensive war against illegal immigration.

Andrew T. Hyman and I recently published an examination of those issues in the British Journal of American Legal Studies. We focused mostly on Founding-era evidence of the kind probative of the Constitution's original meaning. Our article played a role in the case—but, as described below, a rather unusual one.

The Parties' Contentions

The State of Texas had placed a 1000-foot floating barrier in the Rio Grande near Eagle Pass, Texas, a busy border-crossing area. The state justified the barrier by invoking state war powers to stem an "invasion."

The U.S. government claimed that Texas's power to respond to the alleged "invasion" had expired. The government also maintained that the state right of self-defense had been qualified by the congressional Rivers and Harbors Appropriation Act of 1899, which forbids obstructing navigable waterways without federal consent. (The Constitution grants Congress jurisdiction over navigable waterways as a component of the Commerce Power.)

Texas countered that under traditional navigability tests, the Rio Grande was not, and never had been, navigable above the city of Roma, Texas—far downstream from the Eagle Pass floating barrier.

State War Powers

The Constitution granted federal officers and entities, as well as the government itself, certain enumerated powers. As confirmed by the Tenth Amendment, it reserved the remainder to the states and the people. Moreover, where the Constitution did not specify that federal authority was exclusive, the states retained concurrent, although subordinate, jurisdiction.

Among the concurrent powers reserved to the states was the prerogative of making war. However, Article I, Section 10, Clause 3 limited that prerogative considerably:

No State shall, without the Consent of Congress . . . keep Troops, or Ships of War in time of Peace . . . or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

In international law terms, Congress could authorize state participation in offensive war. But states retained unconditional power to wage defensive war.

As our study pointed out, this clause retained a balance between federal and state war-making that was approximately the same as that prevailing under the Articles of Confederation.

But only approximately. The Constitution added one further constriction and four expansions of state war powers. Specifically, the Constitution (1) denied state power to issue letters of marque and reprisal—an additional restriction on offensive war but (2) discarded the former limitations on states' ability to wage defensive conflicts.

The Constitution also granted the federal government supreme power to regulate immigration (Article I, Section 8, Clause 10). However, states also retained subordinate concurrent power over that subject. This was recognized in the portion of Article I, Section 9, Clause 1 that referred to free migration as opposed to the importation of slaves: "The Migration . . . of such Persons as any of the States now existing shall think proper to admit . . . .".

Mr. Hyman and I investigated the Founding-era meaning of "invasion" and "invaded" to determine if, as three U.S. appeals courts have opined, those terms were limited to formal attacks by foreign military forces. We found they certainly were not. Both 18th century dictionaries and contemporaneous usage supported definitions broad enough to encompass peaceful but unauthorized cross-border incursions that resulted in damage. For example, in the years before the Constitution was written, both Benjamin Franklin and Pennsylvania officials referred to a peaceful but unauthorized wave of immigration into their state as an "invasion."

We also learned that during the Founding era, migrants entering a country illegally were considered, or treated as, "alien enemies." They were not accorded the same rights as "alien friends." It made no difference whether an illegal migrants' country of origin was friendly or hostile.

Finally, we examined Founding-era international law to determine the sorts of tools a sovereign may use to fight a defensive war. Not surprisingly, these included barriers to thwart invaders.

So based on our findings, it appeared that Texas was on sound constitutional ground when invoking its defensive war powers to justify building a barrier—at least until one considers the Rivers and Harbors Appropriation Act.

The Court's Decision

Under that law, if the Rio Grande is "navigable" at the point where Texas constructed its barrier, then a conflict arises between congressional exercise of the Commerce Power and state exercise of defensive war powers.

In United States v. Abbott, the court avoided that conflict. In an opinion written by Judge Don R. Willett, the court concluded that the Rio Grande was not navigable in the area of the barrier, because the river above the city of Roma had never been a "highway of commerce." Although there was some evidence that a ferry had crossed the river near Eagle Pass, Judge Willett held that ferries crossing rivers merely cover gaps in land routes. A ferry may indicate that a lake is navigable, but "Lakes are obviously not rivers."

Chief Judge Priscilla Richman concurred in the decision, but would have left open the possibility that adequate proof of a ferry route could show navigability.

Judge Ho's Opinion

Judge James C. Ho wrote a concurring-and-dissenting opinion focusing on the state right of self defense. He argued that the U.S. government's request for a preliminary injunction should have been dismissed because when a state, in good faith, claims it has been invaded and invokes its war powers, the legality of its decisions are non-justiciable political questions:

Supreme Court precedent and longstanding Executive Branch practice confirm that, when a President decides to use military force, that's a nonjusticiable political question not susceptible to judicial reversal. I see no principled basis for treating such authority differently when it's invoked by a Governor rather than by a President. If anything, a State's authority to "engage in War" in response to invasion "without the Consent of Congress" is even more textually explicit than the President's.

In Judge Ho's view, however, "good faith" decision making is a prerequisite to non-justiciability. In this respect and in some other respects, his analysis is similar to ours. We wrote:

"Insurrection" and "invasion" not only trigger the federal government's duty under the [Guarantee] Clause, but also trigger exercise of state war powers. If the terms are too vague for courts to define for federal purposes, then they also are too vague for courts to define for state purposes. If [Guarantee] Clause cases are held to be non-justiciable because the Constitution commits the decision of whether and how to protect states against invasion to the political branches of the federal government, then the Constitution even more clearly commits (as demonstrated by the Self-Defense Clause) the determination of whether a state has been "Invaded" or in "imminent Danger" to the state government.  If redressibility issues impede justiciability in [Guarantee] Clause cases, then they could also impede justiciability when a state has gone onto a war footing and raised an army.

To be clear: If federal officials are proceeding in good faith to crush an insurrection or repel an invasion, the courts should not second-guess their tactics.  But judicial intervention is appropriate when federal officials utterly neglect their duty or adopt measures so plainly insufficient as to demonstrate a lack of good faith effort.

Judge Ho's concurrence matched our conclusions in another respect as well: Both he and we doubted whether a federal law, even if clearly contradicting the right to state self-defense, could take priority over that right. ("[F]ederal statutes," he wrote, "ordinarily must give way to federal constitutional rights.") This makes sense: Self-defense is inherent in sovereignty, and the Supreme Court has defended less important aspects of state sovereignty from otherwise-valid congressional action. Examples include the protection of a state's decision on where to locate its capital and protection of state officials from federal "commandeering."

Judge Andrew S. Oldham also concurred, primarily to dispute Judge Ho's foray into constitutional issues. Judge Oldham rested his conclusion solely on a finding of non-navigability.

The Dissents

In his dissent, Judge Stephen A. Higginson argued that the federal government should be able to rely on ferry traffic across a river to prove the river's navigability.

Judge Dana M. Douglas's dissent challenged the majority's evidentiary conclusions on navigability, maintaining that the federal government had presented ample evidence that the Rio Grande near Eagle Pass qualified as navigable. She also concluded that once Congress has an opportunity to respond to an invasion, state war powers cease:

Clause 3 provides that a state may engage in war without consent of Congress only when it is "actually invaded, or in such imminent Danger as will not admit of delay." . . .  See, e.g., Articles of Confederation of 1781, art. VI, para. 5 (limiting a state's power to engage in war "till the united states in congress assembled can be consulted"); Robert G. Natelson & Andrew T. Hyman, The Constitution, Invasion, Immigration, and the War Powers of States, 13 Brit. J. Am. Legal Stud. 1, 17 (2024) (noting that, in regard to state war powers, the Constitution resulted in "a balance between federal and state prerogatives roughly similar to that under the Articles of Confederation") . . . .

In other words, because the scope of state war power under the Constitution is roughly equal to the scope under the Articles, and because the Articles required consultation and/or consent by Congress, then state war power under the Constitution is similarly limited.

Unfortunately, the publication she relied on—ours—directly contradicted her conclusions. We wrote that under the Articles of Confederation, states "retained virtually unlimited flexibility to engage in defensive land war—even after Congress had been consulted—except for power to strike pre-emptively at non-Indian enemies."

More importantly, we found that the Constitution had removed the Articles' constraints on state defensive war:

[O]n the land side, the Constitution preserved general state control over their militias while providing that "No State shall, without the Consent of Congress . . . keep Troops . . . in time of Peace . . . or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay." This limitation omitted the Articles' contingent requirement of consultation with Congress. (Italics added.)

We have written to Judge Douglas advising her of the discrepancy.

####

Rob Natelson is senior fellow in constitutional jurisprudence at the Independence Institute in Denver and a former constitutional law professor at the University of Montana. He is the author of "The Original Constitution: What It Actually Said and Meant" (3rd ed., 2015).

The post United States v. Abbott and State War Powers appeared first on Reason.com.

Plaintiffs The Pines Church and its lead pastor, Matt Gioia, looking for a new space to accommodate their growing congregation, requested a twelve-month lease to hold Sunday services at Hermon High School. The Defendant Hermon School Department's School Committee, after meeting and discussing the challenges associated with such a relationship, did not make a motion to vote on the requested twelve-month lease. Furthermore, the Committee members refused to second a motion to vote on a six-month lease. Ultimately, the Committee voted to offer Plaintiffs a month-to-month lease.

Plaintiffs filed this civil action, alleging that the School Committee's refusal to extend a long-term lease was motivated by animus against their sincerely held religious views …. The School Department offers a competing characterization of events, maintaining that the School Committee's decision was influenced by concerns about entering into a long-term lease agreement.

Before the Court are the parties' competing motions for summary judgment. Plaintiffs rely on the relatively blatant bias and the inferences that arise from the interrogatories posed by one Committee member who demanded to know from Pastor Gioia the Church's "position" on a spate of religious, political, and cultural flashpoints before evaluating whether to extend a lease on behalf of a publicly funded school.

Plaintiffs also rely on a somewhat more tepid bias, sanitized through fear-of-association comments by others, along the lines that association with the Church may not fit with the Committee's "goals" and may therefore create a "negative image" by not comporting with the School Department's "mission" and evidently its own beliefs. This evidence certainly is probative of Plaintiffs' position that the School Committee's refusal to offer Plaintiffs a lease was motivated by unconstitutional considerations, such as animus toward the Church's orthodox religious beliefs.

For its part, the School Department counters that the School Committee's decision, save for the one Committee member's bill of particulars put to the Pastor, simply resulted from humdrum, benign space and cost concerns, although that narrative is far from conclusive based on the summary judgment record. These competing characterizations of the Committee's motivations form the most conspicuous reason I deny summary judgment to the parties in favor of a jury trial.

More on the facts of the case:

At the November 7, 2022, School Committee meeting, Gioia gave a presentation to the Committee. To signify the Church's intent to invest in the Hermon community, Gioia offered to pay $1,000 per month, which was $400 more than the School Department's proposed monthly rent.

The following day, School Committee Member Chris McLaughlin emailed The Pines Church and explained that he had "a few follow-up questions for" Gioia "that occurred to [him] after the presentation." Gioia responded, asking that McLaughlin funnel his questions through Superintendent Grant. McLaughlin emailed Superintendent Grant and wrote that he wanted to get a better sense of how the Church "approaches issues of diversity, equity, and inclusion" and "[the Church's] messaging around some key issues relevant to marginalized communities." McLaughlin was "curious" about whether "the Pines Church" is "receptive of same-sex marriages?" He asked if "they consider marriage only to be between 1 man and 1 woman?" "In addition to" his "question on marriage," McLaughlin was "wondering if" Pastor Gioia "can share more information on where the Pines Church stands on" the following issues:

• "Access to safe and affordable abortion";
• "Access to gender affirming medical care";
• "Conversion therapy for LGBTQIA+ individuals (youths and adults)"; and
• "Inclusive sexual education and access to birth control for youth."

On November 10, Superintendent Grant forwarded these questions to Pastor Gioia, who did not respond. There is no evidence suggesting that other Committee members were involved in McLaughlin's inquiry or knew about it.

On December 12, 2022, the School Committee met to consider the Church's lease request. The parties offer competing narratives of what was said during this meeting.

Plaintiffs claim that one of the Committee members questioned how the lease would "fit" with the "Committee's 'goals'" and that Hermon High School Principal Brian Walsh and other Committee members commented that the School Department's association with the Church might create a negative image. According to Plaintiffs, Principal Walsh insinuated that the School Department could not associate themselves with the Church because its religious and political beliefs do not align with the School Department's mission and apparently its conflicting beliefs. Lastly, Plaintiffs assert that the Superintendent and the Committee members did not identify any scheduling conflicts with Plaintiffs' requested lease. The School Department refutes this description.

The parties agree that the Committee members [also] discussed school-sponsored activities taking priority, space in the parking lot, and staffing issues, including the need to have the high school space cleaned on Sundays….

And some excerpts from the court's analysis:

The School Department places great weight on the undisputed fact that the School Committee offered Plaintiffs a month-to-month lease. From there, the School Department reasons that a jury could not find that the Committee's refusal to offer a lease was based on improper considerations since the Committee was willing to enter into a month-to-month lease agreement with Plaintiffs.

In the context of the School Department's Motion, the record must be viewed in the light most favorable to the Plaintiffs' cause. A reasonable jury could find that the Committee's unwillingness to enter into a twelve-month lease agreement with Plaintiffs, evinced by none of the Committee members being willing to even second the motion to offer a six-month lease, was based on impermissible considerations, such as a fear of association, which Principal Walsh and other Committee members allegedly expressed. In short, whether the Committee members acted with improper motives when considering Plaintiffs' lease request remains in dispute, so the School Department's Motion is denied.…

{Evidently, the parties have conducted discovery and filed their competing Motions without considering exactly what must be proved under § 1983 to support a finding of unconstitutional municipal action. With the discovery process having closed in December 2023, the examination into the Committee members' subjective motives is over outside of calling them as witnesses at trial. Having not addressed the requirements of § 1983 …, both parties' analyses regarding Plaintiffs' constitutional claims are incomplete and fatal to their attempts to resolve this case short of trial….

In any event, Plaintiffs have come forward with enough evidence such that the accompanying reasonable inferences yield a genuine factual dispute as to whether the School Committee's decision was based on an impermissible motive. Plaintiffs' case does not solely rely on McLaughlin's questions, which, as the School Department conceded at oral argument, give rise to an issue of fact of whether McLaughlin had an improper motive. Additionally, Plaintiffs assert that "one committee member said that leasing to the Church did not fit the Committee's goals," and that Principal "Walsh even insinuated that" the School Department "could not associate themselves with the Church because their religious and political beliefs do not align with" the School Department's "mission." Lastly, Plaintiffs claim that "[o]ther committee members and Principal Brian Walsh made discriminatory comments about the Church by suggesting" that the school's "association with the Church and its religious beliefs would create a negative public image." Plaintiffs do not identify which School Committee members made these statements or how many School Committee members in total made similar statements, but at least three School Committee members are implicated. This is just shy of a majority, but it suggests that "at least a significant bloc of" the Committee members may have acted with improper motives. Furthermore, based on Plaintiffs' assertion that Walsh—the Principal of Hermon High School—made discriminatory comments by suggesting that associating the high school "with the Church and its religious beliefs would create a negative public image," it is possible that other Committee members might have been influenced by Walsh's comments. Moreover, a jury could consider whether Plaintiffs are similarly situated to the organizations that use—but do not rent—school facilities in evaluating the veracity of the School Department's asserted reasons for declining to enter into a long-term lease with Plaintiffs.}

{The School Department's proffered transcript of the meeting (which was offered in opposition to Plaintiffs' Motion, but not in support of the School Department's Motion) might corroborate Gioia's recount of the meeting. According to the transcript, McLaughlin asked how the lease "ties in with the [Committee's] goals" and how the lease would "bolster" the community. Committee member Eva Benjamin asked whether the Church would "use the high school's address" to advertise and promote the Church, and after Superintendent Grant answered yes, she asked if "that would create any confusion or conflict in the community." When asked about possible scheduling conflicts with school-related activities, Principal Walsh said: "If you put our high school's name with a church or another organization with different beliefs than the school has, I see that as a problem we're having."

McLaughlin asked Principal Walsh about whether students expressed any opinions about the lease, and Walsh responded that "a number of students" asked him "'Why would we have the church if we don't own that church? Are they going to use Herm[o]n High School's name? What if we disagree with their mission?'" Committee Member Haily Keezer did not "see how them using the address so people can find it has anything to do with affiliation with the school," and she said, "So it sounds like what you're saying is, you don't want them to say, 'Herm[o]n High School.' You don't want them to associate with that." Principal Walsh said that he did not "want it looking like Herm[on] High School is sponsoring a church. That's where—again—this is where the blur comes in. So again, that's something you guys ensure."} …

Nothing in the Constitution prevents the School Department from deciding that they will not enter into any long-term lease agreements. But once the School Department has opened itself up to possible lease agreements, it cannot turn a religious group away simply because of its religious character. Thus, the question here is, as I have explained above, whether the Committee acted with improper motives when declining to extend Plaintiffs a long-term lease agreement, thereby penalizing religious activity.

The post Lawsuit Over Alleged Discriminatory Refusal to Let Church Lease School Property on Weekends Can Go Forward appeared first on Reason.com.

Reasonableness is to be assessed in light of the purpose of the forum, which here is to "communicate and interact with citizens," and to "encourage respectful and constructive dialogue" through the public's comments. Reasonableness in this context is thus necessarily a more demanding test than in forums that have a primary purpose that is less compatible with expressive activity, like [speech by attendees at a] football stadium …. In service of those purposes, NIH's off-topic restriction furthers the "permissible objective[s]," of creating comment threads dedicated to each post's topic and allowing the public to engage on that topic, instead of being distracted or overwhelmed by off-topic comments.

But NIH must "draw a reasonable line,"  informed by "objective, workable standards," between what is considered on-topic and what is considered off-topic. "Although there is no requirement of narrow tailoring," the government "must be able to articulate some sensible basis for distinguishing what may come in from what must stay out." This NIH has not done.

In the context of NIH's posts—which often feature research conducted using animal experiments or researchers who have conducted such experiments—to consider words related to animal testing categorically "off-topic" does not "ring[ ] of common-sense." For example, consider NIH's July 20, 2021 Instagram post, which featured a photo of the eye of a zebrafish. The caption read, in part: "This picture of an anesthetized adult zebrafish was taken with a powerful microscope that uses lasers to illuminate the fish." It is unreasonable to think that comments related to animal testing are off-topic for such a post. Yet a comment like "animal testing on zebrafish is cruel" would have been filtered out because "animal," "testing," and "cruel" are all blocked by NIH's keyword filters.

The government admits that animal testing comments would be on-topic for that post and instead argues that the off-topic rule is still reasonable because a reasonable policy may be both over- and underinclusive. That argument assumes the zebrafish post is an outlier. But the record indicates otherwise. A substantial portion of the NIH posts included in the stipulated record either directly depict animals or discuss research conducted on animals. To say that comments related to animal testing are categorically off-topic when a significant portion of NIH's posts are about research conducted on animals defies common sense.

Worse, the government fails to provide any definition of "off-topic" in its Comment Guidelines, to its social media moderators, or even in this litigation. See Oral Arg. Tr. 29:4–7 (NIH arguing that "off topic" is a "commonly understood" term but providing no explicit definition); id. at 29:20–21 (NIH stating that "[t]here's nothing in the comment guidelines that define[s] what off topic means"); id. at 54:22–55:25 (NIH stating its moderators use their "experience"). And without such guidance, in this context at least, it is far from clear where the line between off-topic and on-topic lies.

Take another recurring example from the record: An NIH post highlighting a study by a researcher who regularly conducts experiments on animals but did not conduct any such experiments in the particular study highlighted.

One could argue that a comment criticizing that researcher's general use of animal testing is on-topic, because the post introduced the researcher as a "topic" of the post. But one could also reasonably think that such a comment is off-topic because the specific study highlighted is the relevant "topic," and the study itself did not involve animal testing. Simply announcing a rule against "off-topic" comments does not provide "objective, workable standards" to guide either NIH's social media moderators or the public as to how to divine "what may come in from what must stay out."  Though we have never required a speech restriction to demonstrate "perfect clarity," the problem with NIH's off-topic rule goes "beyond close calls on borderline or fanciful cases." Moreover, while NIH claimed in this litigation that there was an "alarming number of repetitive, off-topic" comments about animal testing, NIH provided no line (either to us or to its own social media moderators) demarcating what is an acceptable number of off-topic posts and what is too much.

"It is 'self-evident' that an indeterminate prohibition carries with it '[t]he opportunity for abuse, especially where [it] has received a virtually open-ended interpretation.'" It is perhaps no surprise then that NIH's moderators originally added terms like "PETA" and "#stopanimaltesting" to the keyword filters which were then, during this litigation, removed once NIH realized those terms "may have signaled a certain viewpoint." The district court forgave these keyword choices as "an overzealous attempt by a NIH social media manager to tamp down irrelevant posts." To us, however, these missteps are confirmation that NIH's policy does not "guide[ ]" its social media managers with any "objective, workable standards." That undermines the reasonableness of the NIH policy.

NIH's off-topic policy, as implemented by the keywords, is further unreasonable because it is inflexible and unresponsive to context. In American Library Association, for example, even though the pornography filters erroneously blocked some websites that did not show pornographic content, the Supreme Court held that the policy was reasonable in part because library patrons could easily disable the filtering software by asking a librarian to unblock the site either temporarily for their own use or permanently for use by others.

By contrast, NIH's moderation policy lacks comparable features. The keyword filters apply automatically to comments on all NIH posts. They do not account for the topic of any given post or the context in which a comment is made—for example, a long comment that is generally responsive to the post would be filtered out if it uses any one of the keywords. Further, NIH does not employ any manual review of comments to restore otherwise on-topic comments that have been removed, turn off its filters when it posts content that is likely to make certain keywords relevant, or even routinely review its keyword list to consider whether its keywords should be removed (at least absent a lawsuit). Users seemingly have little, if any, ability to ask NIH to restore their comments; indeed, they typically are not notified when their comments are filtered out. The permanent and context-insensitive nature of NIH's speech restriction reinforces its unreasonableness, especially absent record evidence that comments about animal testing materially disrupt NIH's ability to meet its objective of communicating with citizens about NIH's work.

Finally, NIH's off-topic restriction is further compromised by the fact that NIH chose to moderate its comment threads in a way that skews sharply against the appellants' viewpoint that the agency should stop funding animal testing by filtering terms such as "torture" and "cruel," not to mention terms previously included such as "PETA" and "#stopanimaltesting." The right to "praise or criticize governmental agents" lies at the heart of the First Amendment's protections, and censoring speech that contains words more likely to be used by animal rights advocates has the potential to distort public discourse over NIH's work. The government should tread carefully when enforcing any speech restriction to ensure it is not viewpoint discriminatory and does not inappropriately censor criticism or exposure of governmental actions.

For all of these reasons, we hold that NIH's off-topic restriction, as currently presented, is unreasonable under the First Amendment. We therefore do not separately address whether the specific keywords used to implement the off-topic rule are, by themselves, viewpoint discriminatory….

PETA was represented by Stephanie Krent, Ashley Ridgway, Katherine A. Fallow, Alexia Ramirez, and Jameel Jaffer.

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To the untrained eye, there was nothing unusual on October 5, 2022, near mile marker 77 on Interstate 85. But when two deputies from Greenville County, South Carolina, saw a blue Tesla come into view, they sprang into action.

The vehicle was not speeding or driving recklessly. It had no broken lights or expired tags, nor had the car been reported stolen. What it did have was out-of-state plates on a rental car.

This is enough to trigger a traffic stop during Operation Rolling Thunder, the annual five-day law enforcement blitz that turns a 20-mile stretch of freeway between Charlotte, North Carolina, and Atlanta, Georgia, into a gauntlet for travelers.

No Drugs, No Problem

Finding a pretext for pulling a driver over is easy. "If us officers stay behind you long enough, we can find a reason to pull you over," a Washington state officer explains in a viral video that got her suspended. The excuse to stop the Tesla in South Carolina was "driving in the left lane while not actively passing."

The next goal, after stopping the Tesla driver, was to articulate probable cause to search it. This requires more than a traffic violation. Officers need a reasonable belief that a crime has occurred, so they claimed they could smell marijuana through the vehicle's open window.

Once inside the car, they found no marijuana or narcotics of any type, nor did they find stolen merchandise, fake IDs, weapons, or anything else illegal. All the deputies found was an unspecified amount of cash, which is not a crime to carry.

The driver and her passenger tried to explain, saying they were moving to Atlanta to start a hair business, and they would later fly back to Charlotte to pick up a car in the shop. If the deputies doubted this story, they could have continued investigating. But law enforcement agencies that want to keep cash do not need proof of wrongdoing.

Highway Robbery

A maneuver called civil forfeiture allows the government to take and permanently keep any property it seizes—no arrest or conviction necessary.

Agencies don't even have to identify a suspect. They are supposed to link seized property to criminal activity, but most of the time, they don't even have to prove anything by any standard in court.

Unlike criminal cases, civil forfeiture requires property owners to pay for their own attorney, which many cannot afford. Most cannot navigate the system by themselves either. Because of these hurdles, people frequently cut their losses and walk away, allowing the government to win. This is the case 98.6 percent of the time at the U.S. Department of Homeland Security, which waits on standby to take possession of cash seized during Operation Rolling Thunder.

Even if property owners make it to trial, they still face long odds. It's their word against that of law enforcement officers, who typically testify that property owners fit the drug courier profile for boilerplate reasons such as carrying cash in envelopes or vacuum-seal pouches. 

Almost anything can justify civil forfeiture. One Florence County deputy cited rubber bands as suspicious during a bus search in October 2022. Another officer faulted a driver for simultaneously talking too much and not enough. "While being vague about his trip, [the driver] would overexplain other things," the officer wrote.

Lighting a cigarette during one stop was considered suspicious. So, too, was smelling like cologne, avoiding eye contact, being "preoccupied looking for the rental agreement," and having a cluttered vehicle that appeared to be "lived in."

Participating agencies can keep up to 100 percent of the proceeds seized through civil forfeiture. If the federal government gets involved, through a process called "equitable sharing," their cut is typically at least 20 percent.

The Tesla travelers did not even receive a traffic citation but still lost her property. The travelers were free to go after Homeland Security arrived, but not with their money.

See Something, Seize Something

This incentive to police for profit is huge. Participants from 11 agencies grabbed $968,611 during Operation Rolling Thunder in 2022. This comes to $194,000 per day or more than $8,000 per hour. This is the pattern during Operation Rolling Thunder.

Officers took four bundles of currency from one driver after searching his vehicle and finding nothing but THC vape pens. The police let him go without charges after he signed a roadside abandonment form, relinquishing his claim to the money, which he said came from gambling.

In two other cases, officers found cash on buses and seized the currency without arresting anyone. The police claim to be fighting the War on Drugs, but they grab cash wherever they can find it without any investigation into possible drug crimes.

When the clock is ticking, the police policy is simple: If you see something, seize something.

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Not only have we adopted more criminal laws at an astonishing clip, but the punishments our criminal laws carry have also grown markedly. Beginning in earnest in the second half of the 20th century, legislatures began to adopt laws that had, as Judge Jed Rakoff has noted, "two common characteristics: they imposed higher penalties, and they removed much of judicial dis-cretion in sentencing." Notable among these laws were statutes imposing mandatory minimum terms of imprisonment for certain crimes.

Today, sentencing changes like these can propel some sentences into the stratosphere. A defense attorney in Florida told The Economist that, looking at his clients' prison terms, it appeared to him that the United States was conducting "an experiment in imprisoning first-time non-violent offenders for periods of time previously reserved only for those who had killed someone." One of his clients who had been convicted of fraud was sentenced to 845 years. "I got it reduced to 835," the lawyer said with a sigh. A group that looked across state prison systems found "a consistent upward trend in the amount of time people spend in state prisons" and that the "longest prison terms are getting longer." Another group found that one out of every seven of those now incarcerated is serving a life sentence—more people in total than were serving any sentence in 1970. And while crime tends to be a "young man's game," 30 percent of those serving life sentences were found to be over the age of 55.

Thanks to developments like these, the United States is now a world leader when it comes to incarceration. Our incarceration rate is not only eight times as high as the median rate in western European democracies, it is higher than the rates found even in Turkmenistan and Rwanda. As in those of many states, federal prisons have been operating for years around or above 100 percent capacity. And those who emerge from our prisons often confront collateral consequences that haunt them for years—including the loss of voting rights, licenses, public benefits, jobs, and access to housing.

Just how new is all this? For a good portion of the 20th century, incarceration rates in this country were pretty flat—so much so that, as the Georgetown law professor David Cole has explained, some criminologists imagined that they'd always be the same. From the 1940s to the 1960s, the prison population actually decreased. But since the 1970s, it has "mushroomed." In all, more than a million Americans today are behind bars. When those on parole or probation are included, the Department of Justice estimates, one out of every 47 adults is under "some form of correctional supervision."

Nor do the numbers tell the whole story. Much has been written about how, when the number of crimes increases and the punishments they carry grow more severe, respect for criminal law as a whole decreases. As far back as 1967, a presidential commission convened to study the nation's criminal justice system warned that a "substantial cost of overextended use of the criminal process is the risk of creating cynicism and indifference to the whole criminal law." As the late legal scholar William Stuntz once put it, "too much law amounts to no law at all," for "when legal doctrine makes everyone an offender, the relevant offenses have no meaning independent of law enforcers' will. The formal rule of law yields to the functional rule of official discretion."

Take what happened during the COVID-19 pandemic as a microcosm. Before the pandemic, many legislatures across the country adopted laws granting executive officials discretion to declare states of emergency. Many governors, mayors, and others deployed those emergency powers during the pandemic and used them to announce their own new rules. Some observers defended the rules as essential; others questioned them. Either way, the rules often shifted from week to week and from town to town in ways difficult for people to track. In some jurisdictions, people were arrested or criminally charged for doing what at any other time could only be described as "living life." One researcher looked into the practices of a single city and found that one man had been cited for "sitting in front of his home listening to music," another for "being on a city street unnecessarily with two other individuals," and one group for "milling around aimlessly." Many of the targeted individuals were members of less powerful constituencies or minority groups. Government officials targeted churches but not favored businesses. Early in the pandemic, Time pointed to a study finding that "people of color were 2.5 times more likely to be punished for violations of COVID-19 orders than white people."

Much more could be (and has been) said about the hidden costs of expanding the reach of criminal law and the wreckage it can leave behind for individuals, their families, and their communities. But consider just one man's story. As a young man George Norris fell in love with orchids. Eventually, he quit his job as a construction worker with the hope of turning his passion into a living. He worked hard, traveling to Peru, Ecuador, and Mexico in search of exotic plants, building his business slowly over time. Eventually he made a name for himself, collectors increasingly turned to him, and his small business began to flourish. Then one day in October 2003, his life turned upside down.

That day, six federal agents dressed in black body armor and bearing firearms pulled up to his home in three pickup trucks. Two went around the back of the house while another approached the front door. When George opened the door, the agents announced that they were executing a search warrant and swept in, ordering George to sit in the kitchen while an agent watched over him. His wife was out at the time, but a neighbor soon alerted her about the brewing trouble. (Apparently agents had been asking passersby what they knew about "the criminal activity" going on at the house.) When she called her husband, she found him "frightened" and "confused"; "there was no telling what this was about."

Mrs. Norris later testified that the agents "ransacked" their home, dumping drawers full of belongings onto the floor, before carting away 37 boxes of the couple's possessions, including Mr. Norris' computer. It took about five months for the Norrises to learn that George was under investigation for importing orchids without proper documentation. After federal authorities indicted him on seven counts, George surrendered to officials, who placed him in handcuffs and leg shackles—by that point he was 67 years old—and confined him in a cell with three other arrestees. One was suspected of murder, two of dealing drugs. When he told his cellmates he was in for orchids, they erupted with laughter. One quipped: "What do you do with these things, smoke 'em?"

George tried to fight, but the legal bills racked up. Eventually, he changed his not-guilty plea to guilty. "I absolutely hated that," he later said. "The hardest thing I ever did was stand there and say I was guilty to all these things. I didn't think I was guilty of any of them." He was sentenced to 17 months in prison. (The government had asked for about double that time.) He was then and forever labeled a federal felon. He reported to prison in January 2005, was temporarily released while an appellate court heard his case, then returned to prison to serve the remainder of his term. For 71 days, officials reportedly segregated him in solitary confinement (though as it turned out, he was actually with two other inmates thanks to overcrowding). Finally, George was released in April 2007.

"The hardest part," his wife later testified, was that "I lost the man I married. He came home from prison and he ate and he slept and he sat on the couch and looked at the TV, but he wasn't really watching it. It was like having him in a coma, almost. He wouldn't water a plant, he wouldn't call the grandkids, he wouldn't invite a friend over, he didn't want to go out to dinner. Nothing."

The family struggled with their finances, having used their savings to pay for George's defense. George's business was done, his greenhouse abandoned; he simply didn't have it in him anymore. "I don't sleep like I used to; I still have prison dreams," he later told an interviewer. And then in a quiet voice he added, "It's utterly wrecked our lives."

Of course, not every federal felon is like George Norris. Many sitting behind bars are serving time for violent crimes or other conduct that most would recognize as reprehensible. Doubtless, too, new criminal laws are sometimes needed to address new social developments. And surely the federal government has a role to play in the criminal field, including to thwart criminal schemes that cross state lines or to secure fundamental rights protected by the federal Constitution. But are more criminal laws and longer sentences the answers to every problem?

This article is adapted from Over Ruled: The Human Toll of Too Much Law by permission of Harper.

The post America Criminalizes Too Much and Punishes Too Much appeared first on Reason.com.

The Houston Police Department halted more than 260,000 investigations between 2016 and 2023 because of a lack of personnel. Now, department leaders say they will try to catch up on those investigations, especially the 4,017 rape cases that were put on hold. Police officials said they did not realize just how often the "S.L." tag, for "Suspended–Lack of Personnel," was applied to cases until a home invasion and sexual assault in September 2023. Physical evidence recovered from that scene matched that of a rape kit from a September 2022 assault. Detectives found that the earlier case had been marked S.L. even though the victim gave police her attacker's name, description, and vehicle description.

The post Brickbat: No Need To Hurry appeared first on Reason.com.

Technically, Biden and Harris are probably calling for a statute that would unconstitutionally limit the voting rights of Supreme Court justices to 18-year terms in violation of Article III of the Constitution. I base this inference on my knowledge of the proceedings of President Biden's Supreme Court Reform Commission, since Biden's July 29th op-ed and speech provided no specifics. The Biden-Harris proposal of July 29th reflects the fact that a solid majority of voters oppose court packing, but voters like the idea of Supreme Court term limits by a large margin. Term limits on Supreme Court justices could be legally imposed by constitutional amendment, which would require a bipartisan consensus, and, if the term limit were long enough, it might be somewhat reconcilable with judicial independence. In reality, the Biden-Harris proposal is both a disguised court packing plan, which voters rightly oppose, and it is also unconstitutional and the greatest threat to judicial independence since President Franklin D. Roosevelt tried unsuccessfully, in 1937, to increase the size of the Supreme Court from 9 to 15 justices.

Biden tipped his hand that he is asking for a statute imposing an 18-year term limit on the voting rights of Supreme Court justices in cases or controversies before the Supreme Court because, in his July 29th proposal, he called for a constitutional amendment to overturn a recent Supreme Court case that he disagreed with, but he pointedly did not call for a constitutional amendment to enact an 18-year term limit on Supreme Court justices' voting rights on cases before the Supreme Court. Biden also did not specify whether such a package would apply retroactively to the nine current Supreme Court justices or prospectively, as some members of his Presidential Commission on Supreme Court reform have suggested it should. President Biden, and some members of his Commission, seem to think that the mere passage of a statute and not a constitutional amendment is all that is needed to eliminate the voting rights of Supreme Court justices once they have served for 18 years. I am not aware of any Republican member of Biden's Commission or of any right of center legal scholar or lawyer who currently thinks that what Biden-Harris are contemplating is constitutional.

How would the Biden-Harris plan work in practice if the Democrats win the 2024 election this November 5th? Imagine that sometime after noon on January 20, 2025, Senate Democrats, if they are still in the majority, eliminate the filibuster for a Supreme Court packing effort, disguised as an 18-year term limits bill on voting rights of Supreme Court justices on cases or controversies before the Supreme Court, which requires 60 votes to end debate. Then imagine that Kamala Harris has been elected president, that the Senate has ended up tied 50 to 50 as happened four years ago in the election of 2020, and that Kamala Harris's Vice President holds the tie breaking vote, enabling Supreme Court packing to pass in the Senate by a partisan vote of 51 to 50. Finally, imagine that Democrats win a slim majority in the House of Representatives. The Biden-Harris court packing statute, disguised as an unconstitutional 18-year statutory term limit on Supreme Court justices voting power would become a law awaiting judicial review as to its constitutionality.

All of this could easily happen, and with the retirement of Senators Joe Manchin and Kyrsten Sinema there are probably no Democrats left in the Senate who would oppose the abolition of the filibuster if it stood in the way of enacting such a statute. Based on their voting records between 2021 and 2023, when the Senate was last evenly divided, and fresh off a successful 2024 reelection campaign, Montana Senator Jon Tester, Ohio Senator Sherrod Brown, Pennsylvania Senator Bob Casey, Wisconsin Senator Tammy Baldwin, and Nevada Senator Jacky Rosen would be highly likely to join the rest of their party. If red-state Senate Democrats do not intend to join the Biden-Harris court packing bandwagon, they should publicly and loudly denounce the Biden-Harris court packing plan right now, before the November 5th election, and commit to voting against it.

Although the details remain to be spelled out, the immediate effect of an unconstitutional retroactive court packing law, disguised as a term limits law, would be to remove as voting members of the Supreme Court, on cases before that Court, three out of the six of the moderate, libertarian, and conservative Republican-appointed current life-tenured Supreme Court Justices who have served for more than eighteen years: Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito. Strikingly, no progressive or Democratic-appointed Justices would be removed. Such a law would then allow President Harris and a Democratic Senate to appoint three new progressive justices—one for each of the removed justices who have served for longer than 18 years. The number of justices would also technically increase from 9 to 12, although the 3 term-limited Justices would no longer have a vote on cases before the Supreme Court. This combination is what makes the Biden-Harris proposal, if retroactive, a court packing plan and not a term limits plan.

To be sure, the new progressive justices, in turn, would be unconstitutionally term limited to 18 years. But this would be a long time far into the future—in 2042. Meanwhile, the law would immediately remake the voting membership of the Supreme Court from a 6 to 3 moderate, libertarian, and conservative Republican-appointed majority, into a Supreme Court with a 6 to 3 Progressive Democratic-appointed majority, and three Republican-appointed members without a vote on cases before the Supreme Court: Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito. President Harris's court packing bill, if it applied retroactively, would change the Supreme Court from a 6 to 3 majority of voting moderate, libertarian, and conservative Republican-appointed Justices to a 6 to 3 majority of voting progressive Democratic-appointed Justices through her new appointees. Thus, a retroactive court packing statute, disguised as an 18-year term limit on Supreme Court justices, would unconstitutionally give Democrats a 6 to 3 voting majority on the Supreme Court perhaps until 2042.

A prospective court packing law that simply added three new 18-year term limited justices, for each justice who has served more than 18 years, would lead to a 12-member Supreme Court that is tied 6 to 6. Either way, the statute Biden and Harris have in mind is a court packing law and not an 18-year term limits law. I am basing my discussion of what Biden and Harris may have in mind on conversations with key members of President Biden's Supreme Court Reform Commission, a number of whom are close personal friends. Either way, whether it is retroactive or not, the term limits statute the Biden Commission on Supreme Court Reform proposal favored, which never made its way into the public eye, is unconstitutional. Perhaps President Biden meant to put forward this proposal in his second term, which he will no longer serve due to his withdrawal as a candidate for President in 2024.

This proposed Biden-Harris "term limits" / court packing plan described above is the greatest threat to judicial independence since President Franklin D. Roosevelt tried unsuccessfully to pack the Supreme Court in 1937. His proposal would have increased the number of justices from 9 to 15—6 justices for each of the then-9 justices who were over the age of 70. The Court's membership has been fixed at 9 justices since 1869—a period of 155 years. Other than FDR's unsuccessful 1937 court packing plan, and some short-term court packing during the immense crisis of the Civil War, no Supreme Court packing law has ever passed in 235 years of American history. The size of the Supreme Court did increase from 6 justices at the founding, to 7 and then 9, before 1861, as the population and number of states in the union increased exponentially. None of those increases were motivated by a desire to pack the Supreme Court outright, as is explained in Joshua Braver, Court Packing: An American Tradition?, 61 Boston College Law Review 2747 (2020). While I think that what FDR tried to do in 1937 was also unconstitutional, I will confine my comments today to addressing the constitutionality of what I know to be the plan for statutory court-packing as term limits on justices' voting, which the Biden Commission on Supreme Court Reform considered.

The present nine life-tenured justices would be duty-bound to hold statutory term limits schemes, whether retroactive or prospective, unconstitutional. The term of office and powers, including the power of voting on cases before the Supreme Court, of life tenured Supreme Court can no more be altered by statute than can be the term of office or powers of the President, the Vice President, Senators, or Representatives, or of any state elected officials. Congress could not by statute take away the Vice President's tie breaking vote when the Senate is equally divided. Biden and Harris, of all people, should understand that, having served both as Vice Presidents and Senators.

The insurmountable constitutional and legal problem with President Biden's Supreme Court term limits statute in any form is that Article III, Section 1 of the Constitution says explicitly that:

"The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour …." This clause, on its face, renders any term limits, retroactive or prospective, on the Supreme Court judges unconstitutional. Such term limits cannot be achieved by the subterfuge of eliminating voting rights on cases of Supreme Court justices but not the justices' title, for reasons implicit in U.S. Term Limits Inc. v. Thornton, 514 U.S. 779 (1995) (limit on eligibility to be on the ballot is a subterfuge for an unconstitutional term limit).

Since 1761, British law has defined "good behaviour" to mean life tenure absent conviction of a felony. The Framers of the U.S. Constitution clearly understood it to mean at least that too, with a felony on its own probably insufficient absent a special impeachment and conviction proceeding in addition. That is also how tenure during good behavior has been widely understood by Americans, including American Presidents, from 1789 until President Biden's speech on July 29, 2024.

The only clause in the Constitution that even comes close to empowering Congress to legislate as to the Supreme Court reads as follows in relevant part (emphasis added):

The Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution … all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Congress thus does have the power to make "necessary and proper laws for carrying into execution" the judicial power of the life tenured justices and judges. Congressional power over the judiciary under this Clause has, however, been construed to be limited by the critical principle of judicial independence, which is the right way in which to construe it. See Plaut v. Spendthrift Farm Inc., 514 U.S. 211 (1995) (opinion of the court by Scalia, J). I think, as Plaut ruled, that the Necessary and Proper Clause does not allow the Congress to retroactively require courts to effectively reverse themselves on previously adjudicated cases, which is merely an implication of the principle of judicial independence. Much less does it allow Congress to effectively nullify Supreme Court Justices' life tenure by curtailing the justices' voting rights on cases before the Supreme Court after 18 years when the President and Congress are "displeased" with the Court's decisions.

Some too-clever-by-half law professors (to some extent including me, 22 years ago) have claimed that proposals of the type considered by the Biden Supreme Court Reform Commission are not really an attack on the Justices' life-tenure. They argue that from 1789 to 2024, Supreme Court justices have held two federal, judicial offices: the first deciding cases that come before the Supreme Court, and the second riding circuit or hearing cases on the lower federal courts. Congress first curtailed and then eliminated circuit riding in the Nineteenth Century at the request of the Supreme Court justices themselves when it created many lower federal court judgeships. But, even today, Supreme Court justices are also circuit justices who hear requests for stays from their home circuits. They can also decide federal court of appeals or district court cases in any circuit when they are designated to do so by a lower federal court chief judge.

Yet the abolition of circuit riding was constitutional for the same reason the Supreme Court upheld the abolition of 16 federal court of appeals judgeships created by the lame duck John Adams Administration and a lame duck Federalist Congress in February of 1801. See Stuart v. Laird, 5 U.S. (1 Cranch) 299 (1803). Congress can abolish a level of inferior court judgeships, the inferior judges of which have tenure during "good behaviour," and it can stop Supreme Court justices from hearing cases on inferior courts, but it cannot redefine "good behaviour" to constitute voting rights on the Supreme Court for only the first 18 years of a Supreme Court justice's service.

The law professor proponents of statutory term limits claim that Congress could retroactively redefine the office of Supreme Court judge to clarify that justices vote only on Supreme Court cases for the first eighteen years after their appointment as Supreme Court judges, and then for the rest of their lives they have tenure during good behavior as circuit court judges who still have the title of Supreme Court judge but not the power to vote on cases before the Supreme Court. But this position is in my now considered judgment a mistaken view. I have changed my mind on this in the last 22 years, as I will explain further below. Everyone has long understood that the primary responsibility of the "office" of Supreme Court Justice is to serve as the final arbiter who votes in cases or controversies properly before the Supreme Court.

Moreover, the office of "judge of the supreme court," unlike the office of circuit judge, which Congress created by statute in 1789, is one of the very few offices created by the Constitution, itself, and not by a federal statute. This is made clear by its mention in the Appointments Clause, which explicitly says that: "[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law."

Congress has no power by statute to alter this constitutionally created and tenured office or its powers, an office and powers that are currently held by nine life-tenured men and women. In this office, which the Constitution itself creates, those nine Justices have the duty (in Latin, officium, from which the English word "officer" is derived) to vote on all cases or controversies before the Supreme Court. Similarly, Congress cannot alter the terms of offices, or the powers of those who hold such offices, as the Members of the House of Representatives, the Members of the Senate, the President, the Vice President, presidential electors, the Chief Justice of the United States, and ambassadors and other public ministers and consuls. The Supreme Court has also correctly rejected efforts by State legislatures to impose term limits on members of Congress notwithstanding the state legislatures' express and residual authorities to regulate elections and ballot access under the Tenth Amendment. See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995).

All offices of the United States other than the ones noted above (except for the Speaker of the House of Representatives and the President Pro Tempore of the Senate) are created by Congress by statute and can be term limited by Congress; but that's not so for any "supreme or inferior" federal court judgeships. Congress can no more change the term of the "office" or the voting rights of Supreme Court justices or "Judges" by statute than it can do so as to the term of office or the powers of the President, the Vice President, Senators, or Representatives. Nor can the states change the term of office of any federal officials by, for example, effectively imposing term limits on their federal Senators and Representatives. See U.S. Term Limits.

The American people adopted the Twenty-Second Amendment to limit U.S. presidents to no more than two elected terms or a total of ten years in office. This was an exceptionally wise and bold move, which exempted from the two-term limit the then-serving President, Harry S. Truman. Just as it was necessary to pass a constitutional amendment to limit presidents to two terms prospectively, it is also necessary to pass a constitutional amendment to term limit or change the voting powers of Supreme Court justices, and a constitutional amendment would also be necessary to change the term of office or powers of the Vice President, or of Senators or of Representatives. No-one thought, in 1947, that Congress could by statute pass as "necessary and proper" a law that carried into execution the President's "four-year term of office" by adding the limit that he could serve for only two four-year terms. The Framers of the Constitution considered these sorts of ideas and rejected them out of hand, as the words of the Constitution show. Nor did anyone think that such a statute could have left Franklin D. Roosevelt with the title, but not the powers, of the presidency, when he began his third term as President in 1941, while some other individual also called the President somehow had all the powers that belonged to FDR under the Constitution.

The Biden-Harris plan is thus unconstitutional and should not be taken seriously by anyone. And it is also bad public policy for at least five reasons.

First, it would in practice be the end of judicial independence, which has been essential to the rule of law and the endurance of the American experiment. Instead, it would hopelessly politicize the Court, both immediately and in the long term. The new Court majority would owe their jobs to the current President and Congress far more directly than the does the current majority of Supreme Court justices. The next time Republicans win the presidency and simple majorities in both Houses of Congress, they would simply repack the Supreme Court themselves.

Such a move by Biden and Harris, with the certainty of a tit for tat by Republicans, is a great threat to our constitutional republic. What the Democrats do without bipartisan support in 2025, the Republicans will certainly do again without bipartisan support whenever they get a trifecta. It is no exaggeration to say that in short order this would end the 235-year American experiment with constitutional democracy.

A second policy problem, considered by Biden's Supreme Court Reform Commission, is that when that plan is fully implemented, it would provide that one of the nine seats on the Supreme Court would open every two years over an eighteen-year cycle. This would give every two-term president four seats to fill, which is almost always enough to tip the balance on the Supreme Court. As of 2024, we have had fifteen presidents who have served eight or almost eight years in office. They include George Washington, Thomas Jefferson, James Madison, James Monroe, Andrew Jackson, Ulysses S. Grant, Grover Cleveland, Theodore Roosevelt, Woodrow Wilson, Franklin D. Roosevelt, Harry S. Truman, Dwight Eisenhower, Ronald Reagan, Bill Clinton, and Barack Obama.

What would it be like to live in a country which has had fifteen major shifts in constitutional caselaw instead of, or possibly in addition to, the perhaps five or six major shifts in caselaw that our life tenured Supreme Court has produced? The Supreme Court would become much like the National Labor Relations Board, which is quickly dominated by labor unions during Democratic Administrations and by the Chamber of Commerce during Republican Administrations. So much for the rule of law and the Constitution. What is next? Abolishing the fifty states or the Senate by statute?

A third policy problem that bears noting is that the Biden-Harris term limit of 18 years would have cut short the tenure of many Justices long admired by Progressives, among others Thurgood Marshall, Louis Brandeis, Joseph Story, William J. Brennan, Jr., John Marshall Harlan the elder, Oliver Wendell Holmes, Hugo Black, John Marshall, and John Paul Stevens.

Do Biden-Harris, and Democratic Senate candidates in red states like Montana and Ohio, really want to cut short the judicial careers of all people like this? After all, many Supreme Court justices are said by progressives to "grow in office." That would happen to a much lesser degree with a statutory term limit of 18 years on the service of Supreme Court justices.

A fourth policy problem with the Biden-Harris plan is that twice in American history when one party controlled the presidency, the Congress, and the Supreme Court the results were catastrophic. In 1944, when New Deal Democrats controlled the presidency, Congress, and the Supreme Court, they abused their power in Korematsu v. United States, 323 U.S. 214 (1944). Six of the eight Democratic appointees on the Supreme Court voted to let President Franklin D. Roosevelt send 100,000 Japanese American citizens to concentration camps solely because of their race.

An earlier abuse of power occurred in the late 1790's when the Federalist Party controlled the presidency, the Congress, and all the federal courts. Between 1798 and 1801, Federalist Party justices and judges appointed by Federalist Party Presidents, George Washington and John Adams, used the Sedition Act of 1798 passed by a Federalist Party Congress to jail Democrats for, among other things, calling President Adams "pompous," "foolish," "silly," and a "bully." The courts jailed and fined citizens and even a congressman from Vermont, even though the speech in question was clearly constitutionally protected under the First Amendment.

The fifth and final public policy problem is that in arguing for an 18-year term limit for U.S. Supreme Court justices, President Biden gives great weight to the fact that other constitutional democracies have term limits or mandatory retirement ages on their "equivalents" to our Supreme Court justices. Biden misses, however, the fact that the United States differs greatly from all of those other much less free, much less wealthy, and much less populous constitutional democracies. From 1789 to the present, the United States has been "a shining city on a hill," which all of the other constitutional democracies formed since 1875 have strived imperfectly to emulate. Millions of Southern, Eastern, and Central Europeans; Arab and Sub-Saharan Africans; West, South, and East Asians; and Central and South Americans would all come to live in the United States, if they legally could do so, while virtually no Americans, including oppressed Black Americans, try to leave our country.

I suspect that judicial life tenure is one of the reasons why the United States is freer than any other constitutional democracy. I also suspect that the high level of certainty in U.S. law, especially Supreme Court caselaw, has reduced the risk factor in investment in the United States. This in turn explains why the United States has the highest GDP per capita of any of the G-20 nations, which are constitutional democracies.

Salman Rushdie could publish The Satanic Verses in the United States and be confident that he would not be prosecuted for doing so in 20 years. Sadly, this is not the case in Canada, Germany, France, Brazil, India, or many other constitutional democracies, in some of which, like India, I have been told by scholars that Rushdie's book is banned. Elon Musk can start SpaceX in the United States and be confident that it would not be nationalized with inadequate just compensation in twenty years. Sadly, this is not the case in many other constitutional democracies.

Our life tenured Supreme Court, and the certainty that it creates have played a central role in establishing the liberty and prosperity evidenced by our unequaled GDP per capita among the G-20 nations. I lay out the evidence for this claim in 700 pages in a two-volume recently published book series, The History and Growth of Judicial Review: The G-20 Common Law Countries and Israel (Oxford University Press 2021) and The History and Growth of Judicial Review: The G-20 Civil Law Countries (Oxford University Press 2021). The research I did for these two books caused me to rethink my earlier support, as a policy matter, for Supreme Court term limits of 18 years accomplished by constitutional amendment or statute. See Steven G. Calabresi & James Lindgren, Term Limits for the Supreme Court: Life Tenure Reconsidered, 29 Harv. J. of L. & Pub. Pol. 769 (2006), and a 2020 op-ed in The New York Times. I once in 2002 signed an op-ed with Professor Akhil Reed Amar endorsing statutory 18-year term limits, but I recanted that view in my 2006 law review article with Lindgren, writing that statutory term limits were unconstitutional and unwise.

The other constitutional democracies that have term limits or mandatory retirement ages on their Supreme Courts or Constitutional Courts—their equivalents to the U.S. Supreme Court when it comes to having the power of judicial review—all give much more power to those "courts" than the U.S. Constitution gives to the U.S. Supreme Court. All of these foreign "courts" have the power to issue advisory opinions; lack a strict standing doctrine, like the one set forth by the U.S. Supreme Court; or allow citizen/taxpayer standing, which is not allowed in the U.S. and which hugely broadens the range of issues which a Supreme Court or Constitutional Court can rule on. Several foreign Supreme or Constitutional Courts have the power to declare constitutional amendments unconstitutional. Several also allow their current justices or judges to select their successors without meaningful input from elected officials.

This medieval guild system of incumbent judges selecting their judicial successors resembles the medieval guild system of U.S. law schools where faculty members select their own successors, a job which faculties do not do very well. In contrast, U.S. Supreme Court justices are selected by democratically elected officials through presidential nomination and senatorial confirmation. This reduces the counter-majoritarian difficulty, which judicial review creates.

In short, the reason why so many foreign countries have term limits, or age limits, and the U.S. Supreme Court justices do not, is because the foreign equivalents to our Supreme Court justices are significantly less constrained in other ways. They are therefore more in need of additional constitutional restraint than is the U.S. Supreme Court because they are not really "courts" as Americans have always understood that word.

Court packing, or term limits, would sharply undermine the independence of our judiciary. It's unconstitutional, and it's bad policy. I hope that Senators of both parties speak out against it.

The post Biden-Harris on Supreme Court Term Limits appeared first on Reason.com.

In this week's The Reason Roundtable, editors Matt Welch and Nick Gillespie welcome not just one but two special guests from The Dispatch. In this convivial Roundtable crossover episode, Jonah Goldberg and Kevin D. Williamson ruminate on Kamala Harris' veep options, identity politics, and drug legalization.

04:54—Kamala Harris' potential running mates

20:09—Identity politics across both major parties

36:40—Weekly Listener Question

56:16—This week's cultural recommendations

Mentioned in this podcast:

"Josh Shapiro Is Kamala Harris' Best Bet for Veep," by Robby Soave

"Trump and Harris Are Just Making It Up as They Go," by Eric Boehm

"J.D. Vance Has Changed a Lot Since the Days of Hillbilly Elegy," by Steven Greenhut

"Democratic Gubernatorial Candidate Who Defended COVID Lockdowns in Court Now Says They Were a Mistake," by Eric Boehm

"Pennsylvania's Democratic Governor Is Threatening To Veto His Own School Voucher Plan," by Eric Boehm

"Majority of Public Comments Support Descheduling or Legalizing Marijuana," by Joe Lancaster

"Don't Blame Decriminalization for Oregon Drug Deaths," by Jacob Sullum

"Glenn Loury on Economics, Black Conservatism, and Crack Cocaine," by Nick Gillespie

"Paris Spent $1.5 Billion Cleaning Poop Out of the Seine, and It's Still Too Dirty for Olympic Swimming," by Natalie Dowzicky

"Full Interview with Nick Gillespie (How the World Works)," by Kevin Williamson

"Faisal Saeed Al Mutar, Melissa Chen: Bringing Enlightenment Values to the Middle East," by Nick Gillespie

Send your questions to roundtable@reason.com. Be sure to include your social media handle and the correct pronunciation of your name.

Today's sponsors:

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Audio production by Ian Keyser; assistant production by Hunt Beaty.

Music: "Angeline," by The Brothers Steve

• Video Editor: Ian Keyser
• Producer: Hunt Beaty

The post Weighing Kamala Harris' Veep Options appeared first on Reason.com.

Last week, the Biden administration announced that it would unveil a second attempt at issuing blanket student loan forgiveness within the next few months. The announcement comes more than a year after its first attempt was blocked by the Supreme Court.

"The Biden-Harris Administration made a commitment to deliver student debt relief to as many borrowers as possible as quickly as possible," said Education Secretary Miguel Cardona in a statement last Wednesday. "And today, as we near the end of a lengthy rulemaking process, we're one step closer to keeping that promise."

The announcement builds on a release in April of draft rules that aim to enact student loan forgiveness primarily by expanding existing loan forgiveness programs. The Education Department says it has begun notifying borrowers about the coming rules and informing them about a deadline to opt out of forgiveness. 

The proposed rules target specific groups of borrowers, including borrowers who now owe more than they originally took out in loans due to accumulating interest, borrowers who have been in repayment for decades, and those who are eligible but not enrolled in existing forgiveness programs. Borrowers who enrolled in low-value degree programs, such as those that "failed to provide sufficient financial value, or that failed one of the Department's accountability standards for institutions" are also eligible for new forgiveness efforts. 

Last week's announcement also stated that those eligible would most likely receive forgiveness automatically, with no application or additional steps required.

If enacted, the rules could end up affecting even more borrowers than would have been affected by the Biden administration's first forgiveness plan. The Education Department predicts that if the proposed rules go into effect, the Biden administration would have made over 30 million borrowers eligible for forgiveness through its efforts over the last three years. In contrast, Biden's first attempt at blanket student loan forgiveness was predicted to impact just 27 million eligible borrowers.

"If finalized as proposed, these new rules would authorize relief for borrowers across the country who have struggled with the burden of student loan debt," reads last week's statement. "The Biden-Harris Administration has taken historic steps to reduce the burden of student debt and ensure that student loans are not a barrier to educational and economic opportunity for students and families."

The Education Department predicts that the finalized rules will be released sometime in the fall. However, with the election in November looming, it's doubtful whether the department can actually provide forgiveness before the end of Biden's term. And considering that legal challenges are almost certain to follow any attempt to enact large-scale loan forgiveness, it's unclear if there is any realistic chance that the Biden administration can enact this plan. At the moment, these latest efforts might be best thought of as a last-minute political stunt designed to energize young, college-educated voters rather than an earnest policy effort.

The post Biden Administration Says It Will Finalize Second Attempt at Blanket Student Loan Forgiveness This Fall appeared first on Reason.com.

Two police officers in Watonga, Oklahoma, are under state investigation after body camera footage showed them slamming a father to the ground while he was taking his son for an early morning walk.

The Oklahoma State Bureau of Investigation (OSBI) confirmed to local news outlets that it's investigating whether the two Watonga officers used excessive force when they violently detained John Sexton on the morning of July 4.

The incident has led to hundreds of calls from outraged citizens to the police department, local news outlets, and the county sheriff, who has publicly called on the officers to be placed on leave.

Sexton was walking with his 6-year-old son, who has autism, around 6 a.m. when he was stopped by two Watonga police officers.

Watch the video below:

Father body slammed and arrəsted for taking "suspicious" early morning walk with his 6 year old son

OK officers arrəsted the man while walking with his son because he did not provide ID upon demand.

Do you think this was excessive? pic.twitter.com/BG1HGPGLpZ

— TaraBull (@TaraBull808) August 3, 2024

"Found it a little bit suspicious, just the walking around," one of the officers said.

"Walking around is a little bit suspicious?" Sexton replied.

"Technically not really," the officer said, "but, I mean, it is pretty early in the morning. Just wondering what was going on."

The other office then asked Sexton for his ID.

"I don't need to show my ID," he responded.

Sexton is correct. Oklahoma is not a "stop and identify" state, where police can demand the name of pedestrians, and even in those states, officers need a reasonable suspicion that the person is involved in a crime.

Nevertheless, police around the country continue to abuse their authority and arrest people for asserting their rights. In 2022 for example, a pair of Florida sheriff's deputies were demoted for arresting a legally blind man who lawfully refused to give his ID.

The Watonga offices appear similarly ignorant. One threatens to arrest and jail Sexton for failing to identify himself, "because I've identified that you've been walking around here at 5:30 in the morning."

"Yeah, we do that," Sexton replied.

"No, you're not. Give me your ID," the officer demanded.

Sexton said he left his ID at his house and repeated, correctly, that Oklahoma doesn't require him to identify himself.

One of the officers then tried to detain Sexton, who pulled away and attempted to record the incident with his cellphone. The officer then grabbed Sexton and swung him to the ground while Sexton's young son started wailing.

Sexton was briefly detained before being released without being charged. He has since filed a complaint with the Watonga Police Department, and the release of body camera footage of the incident has outraged residents.

Blaine County Sheriff Travis Daugherty told local news outlet KOCO News that his office received over 200 calls about the incident. Daugherty also said one of the officers involved was a former deputy in his office but had been demoted and eventually left to join the Watonga Police Department.

"The deputies that were underneath him, they had lost faith in him as their leader. Yeah, and so I demoted him back later," Daugherty said.

Lack of central databases of police disciplinary records and poor background checks lead to problem officers bouncing from department to department, leaving a trail of complaints and lawsuits in their wake.

Daugherty also sent a letter to residents pushing for the officers to be placed on leave until the investigation is complete.

"This is not a matter of me deciding if they are guilty or not; this is for the citizens to know that somebody is listening, and I hope to bring peace of mind and put citizens at ease to know that Watonga is doing everything they can to ensure the safety of the Blaine County Citizens," Daugherty wrote in the letter. "I feel the best course of action now is to remove these officers from the equation until the District Attorney's Office and city leaders decide what the best outcome will be."

In a July 29 press release, the City of Watonga said it was aware of Sexton's complaint and that the chief of police had requested the OSBI to investigate. It declined to comment until the completion of that investigation.

"As part of our commitment to integrity, we take any allegations seriously and are committed to transparency and accountability in our operations," the press release states. "Until the investigation is complete, and while following state law related to personnel matters, we will refrain from providing additional comments to preserve the integrity of the process."

Meanwhile, Sexton told local news outlets that his son was heavily traumatized by the event.

"He's been a cop for Halloween for the last two years," Sexton told KOCO News. "That's what he's been wanting to be when he grows up. That's what he says, and now he's scared of them."

The post Oklahoma Cops Under Investigation for Slamming Innocent Dad to the Ground for 'Suspicious' Walk With Son appeared first on Reason.com.

Moral panic about sex work leads to law enforcement practices that reach far beyond anyone engaged in or with erotic labor. The latest example comes from San Diego County, California, where cops are putting up a creepy surveillance tower under the auspice of stopping sex sellers and sex buyers from meeting.

The prostitution surveillance tower, stationed along National City's Roosevelt Avenue, will record video of anyone who happens to be in the area.

Normalizing Warrantless Surveillance

A supporter of the surveillance tower told a local CBS affiliate that it will help reduce prostitution by recording the license plate numbers of people who enter the area to pick up sex workers.

Schemes to catch people who want to pay another consenting adult for sex are a waste of money and manpower and a violation of privacy, free association, and bodily autonomy, of course. But even if you think that punishing prostitution customers (or sex workers themselves) is a swell idea, it's hard to see how the surveillance tower makes any sense.

You can't charge someone for simply picking another person up off the street, even if police think the person on the street looks like a sex worker. Even if money visibly exchanged hands—well, it's not a crime to give someone cash. Unless the entire sexual exchange happens right in front of the cameras, it's hard to imagine on what basis cops could possibly make any charges stick.

Besides, the tower is very visible and local media have been publicizing it. Smart sex workers and their customers will simply move to another, less visible area. If the surveillance tower has any impact at all, it will be to drive prostitution from one part of the city to another. That's it.

It seems clear that the idea here isn't actually cracking down on prostitution. It's just a way for authorities to look like they're doing something about sex trafficking while further normalizing the idea of conducting broad, warrantless surveillance of everyone.

So Many Sex-Trafficking Myths

Local reporting on the new surveillance tower has been heavy on human trafficking myths and dubious statistics. Citing a group called The Ugly Truth, Fox 5 San Diego suggested that "there are over 3,000 to 8,000 sex trafficking victims in the county each year."

And on what data does The Ugly Truth base this? Its website doesn't say. But considering that that's vastly more victims than we see in trafficking arrests across the whole country in a year, and considering the fact that "sex trafficking stings" in California and elsewhere routinely turn up few or no victims, I'm going to guess this data is bogus, if it exists at all.

The Ugly Truth's website also states that there are "approximately 18,000 victims in the U.S." If we take that at face value (and again, it's dubious), that would mean that around 17 to 44 percent of all U.S. trafficking victims are in San Diego County. Why, it's almost as if these numbers are completely made up…

Such sketchy figures are par for the course when it comes to activism and reporting about sex trafficking.

Fox 5 also claims that the "the average age of entry into sex trafficking is 16" and that prostitution is "an $800 million industry locally." It does not cite any sources for these statements.

Claims like these tend to be based on shoddy studies put out by anti-prostitution activists and from groups whose funding depends on proving that sex trafficking is a major issue. For instance, there's a persistent claim that the average age of entry into prostitution or the average age at which someone becomes a trafficking victim is somewhere between 13 and 16. Here's what sex worker Maggie McNeill told Reason about this "fact" back in 2014:

There's a researcher named Melissa Farley who does an awful lot of these kind of studies to provide numbers for the anti-prostitution people. And on her site she traced this supposed number of average of 13 to several old studies which all drew back to a study done here in LA actually in the early 80's—in '82. And that study found the average age of entry for underage sex workers—not for all sex workers, but only for underage ones—was about 16. In a different part of the study, they listed 13 as being the average age of first sexual contact. First kiss, first groping in a car, first whatever. Farley seems to have conflated the two numbers to represent that 13 as being the age not of first sexual contact, but of first accepting money for it. Even so, she still was only claiming that that was the age of origin for underage sex workers. Normal distortion, the gossip game syndrome, has changed that from underage to average of all.

Glenn Kessler at The Washington Post has fact-checked many statistics like these, systematically dismantling claims about the average age of entry into prostitution, the revenues generated by sex trafficking, human trafficking across the U.S.-Mexico border, and the number of total trafficking victims and child trafficking victims. These articles are a bit old by now, but common claims about sex trafficking are still rooted in the same shoddy data Kessler started tracing nearly a decade ago, so I highly recommend checking out his work.

The FBI Goes to Comic Con

Thankfully, there seem to be fewer nonsense statistics about sex trafficking in the media now than a decade ago, when trafficking panic was reaching a peak. But coverage of the National City surveillance tower serves as a good reminder that debunked myths are still out there—and still being used to justify police antics that otherwise might creep people out.

And while sex trafficking panic is arguably less omnipresent now than it was a decade ago, its press coverage should remind us how institutionalized this panic has become.

Authorities overseeing old-school vice stings routinely call them "human trafficking operations" or "sex trafficking stings" now, and reporters and people on social media just casually parrot this language. See, for instance, a recent announcement from Caflironia Attorney General Rob Bonta, who alleged that "sex traffickers capitalize on large events like Comic-Con to exploit victims" (never mind that these sorts of claims around big events have been debunked again and again) and bragged that "an investigation by the San Diego Human Trafficking Task Force" led to "14 individuals [being] arrested."

Local, national, and even international media have run with Bonta's framing in their headlines. "14 Arrested at Comic-Con In Anti-Human Trafficking Sting," NBC reported. "Fourteen arrests in undercover sex trafficking sting at San Diego Comic-Con convention," Sky News said.

If you read a few paragraphs down into Bonta's press release, you'll see that no sex trafficking or labor trafficking arrest resulted from this trafficking sting. The 14 people arrested were picked up for trying to pay another adult for sex. That other adult, however, turned out to be an undercover cop.

The FBI, Homeland Security Investigations, and the Naval Criminal Investigative Service assisted in these efforts.

This is the sort of vice sting that cops have been doing from time immemorial—and which many people started seeing as a waste of taxpayers' resources when it was done simply to arrest adult sex workers or their would-be clients. So now, authorities dress up their prostitution stings in the language of stopping sexual exploitation and slavery.

In this case, authorities also pretended to be prostitution clients and contacted sex workers. But instead of calling this what it is—a sex worker sting—they say they're recovering "potential victims of trafficking." If you frame all sex workers as potential trafficking victims, then you can call luring them to police under false pretenses a rescue mission, even if all that happens once they're in custody is they get "offered services." (That is, they get the phone numbers of some local charities.)

And while it's unclear if the "victims" here were arrested, this isn't uncommon in these sorts of operations, with police justifying it by saying they need to arrest them in order to save them.

The Comic Con operation did find one 16-year-old selling sex. (A minor selling sex is legally considered to be a sex trafficking victim, even if there is no trafficker.) Helping minors who are selling sex—whether they're actually being "trafficked" or not—is a good goal, of course, and people will point to this one teen as evidence hat the whole operation was a success. But arresting would-be sex buyers had nothing to do with finding this teenager; you didn't need to do one to do the other. And is the best way to help teenage sex workers really to terrify them in a sting and then turn them over to child welfare agents? Shelters and social services for victims—teen or adult—seem like a much more effective and humane approach.

More Sex & Tech News

• The Department of Justice is suing TikTok, claiming the company has violated the Children's Online Privacy Protection Act. Much of the complaint turns on the idea that TikTok should magically know whether any user is under age 13, even when users lie about their age or sign in with credentials from another website. The Justice Department also alleges that TikTok collected too much data on users it knew were under 13, and it objects to the fact that the company wouldn't delete minors' accounts upon parental request unless parents certified under penalty of perjury that they were in fact the users' parents.

• In a new report titled Abortion in the USA: The Human Rights Crisis in the Aftermath of Dobbs, Amnesty International shares stories from pregnant women in states where abortion is banned.

• The Consumer Product Safety Commission says Amazon is legally liable for recalling products sold by third parties.

• Some New Jersey lawmakers want to require adult-oriented websites to verify visitor ages. Meanwhile, a measure sponsored by Assemblyman Michael Inganamort (R–Morris) would require computer manufacturers to block porn sites unless a user pays a $20 fee, and to block "any website that facilitates prostitution."

• Another blow to "net neutrality": The U.S. Court of Appeals for the Sixth Circuit "blocked the Federal Communications Commission's reinstatement of landmark net neutrality rules, saying broadband providers are likely to succeed in a legal challenge," reports Reuters. The court had already delayed the rules—which were initially adopted under former President Barack Obama then rescinded by former President Donald Trump—after the commission voted in April to bring them back. The court on Thursday said "it would temporarily block net neutrality rules and scheduled oral arguments for late October or early November on the issue, dealing a serious blow to President Joe Biden's effort to reinstate the rules," Reuters reports.

Today's Image

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It's OK to calm down about the economy. Yes, Friday's unemployment news was bad. Yes, the NASDAQ and Dow Jones neared correction territory on Friday morning. And yes, the Sahm Rule Recession Indicator has now been triggered. Odds are, though, a recession is not imminent. 

Here are three reasons why, in descending order of optimism. One, recent growth has been strong. Two, the economy has been near full employment for a while, and some kind of job growth slowdown is almost inevitable. Three, we're past the window where Federal Reserve actions can influence the election, though its recent behavior is still worrying.

Last week, the media's manic mood swing was on the exuberant side from news of a strong 2.8 percent gross domestic product (GDP) growth in the second quarter of 2024, which ended on June 30. This was a surprise improvement on the previous quarter's 1.4 percent growth. A normal reading is around 2 percent. Better, most of that growth was in the private sector, especially in consumer spending and inventory investment.

The current quarter's GDP growth estimate will come out on October 30. It would take a drastic swing to move from 2.8 percent to negative in just one quarter, though it has happened before. It typically takes two consecutive quarters of negative growth for the National Bureau of Economic Research to declare a recession, though its official standard is to call it as they see it.

The unemployment rate went up from 4.1 percent in June to 4.3 percent in July. June's reading snapped a 30-month streak of unemployment at or under 4 percent. This was the longest such streak since the 1960s.

For context, anything under 5 percent is considered pretty good. The eurozone's unemployment rate is currently 6 percent and often tops 10 percent, even in good times.

When an economy is essentially at full employment, a slowdown in job growth isn't necessarily cause for worry. The economy still has 8 million job openings, and the labor force still grew by 114,000 jobs. That annualizes to more than a million more jobs per year. 

That is slower than population growth, which isn't ideal. The labor force participation rate is also still below prepandemic levels. But a sane immigration policy combined with labor reforms like loosening occupational licensing requirements would fill more of those job openings while creating more opportunities for workers who are still outside the labor force.

The Federal Reserve's recent actions spark some worry. The Fed has spent the last two-and-a-half years walking back its panicked overreaction to COVID-19, which caused high inflation in the first place, along with a bipartisan deficit spending explosion. Inflation is finally slowing and getting back close to its 2 percent target, down from its 9.2 percent peak.

The trouble is that Fed Chairman Jerome Powell indicated that the Fed will stop focusing solely on inflation and will now pay attention to the labor market as well. The Fed has a dual mandate that tasks it with both keeping inflation low and keeping employment high. These can contradict each other, as Powell might soon find out.

If unemployment continues to worsen, look for the Fed to counteract that with stimulus in the form of interest rate cuts and monetary expansion. The tradeoff to this stimulus is higher inflation—exactly what the Fed has been fighting.

While an expected interest rate cut in September isn't a big deal by itself, if it's the start of a larger stimulus campaign, any short-term economic boost will come at the cost of a slowdown later.

The Fed's actions have lag times ranging from about six months to 18 months, so anything it does now will not impact the election. This is good news for the Fed's independence, but it does not inspire faith in Powell's commitment to fighting inflation. It would be better for the Fed to stay focused on inflation. Monetary policy is a poor tool for job creation. Entrepreneurs have a much better track record.

As usual, the big picture is a mix of short-term pessimism and long-term optimism. Whether or not the current recession doommongering comes true, the long-term trend of increasing superabundance will hold. That's as good a reason for calm as any.

The post Recession Is Not Inevitable, Despite Stock Market Slump appeared first on Reason.com.

The first domino: A bad U.S. economic outlook, reflected in Friday's jobs report, helped prompt major stock sell-offs globally over the weekend.

"Japanese stocks collapsed on Monday in their biggest single day rout since the 1987 Black Monday sell-offs," reports Reuters, with the Nikkei 225 index falling 12.4 percent and the Topix index falling 12.2 percent. The Kospi index in South Korea fell more than 10 percent. Equity markets felt the pain in Taiwan, Australia, Singapore, Hong Kong, and China, though to a lesser degree. "At one point, the plunge in Japanese and Korean stocks tripped a 'circuit breaker' mechanism that halts trading to allow markets to digest large fluctuations," reports The New York Times. "But even after those mandatory breathers, the sell-off in stocks seemed to accelerate. Jitters spread to the debt market, prompting a halt in trading in Japanese government bonds as well."

Wall Street's "fear gauge"—the VIX—jumped to its highest level since 2020, when the pandemic prompted a wild market fluctuation. "The market response is a reflection of the deteriorating U.S. economic outlook," Jesper Koll, a director at financial services firm Monex Group, told the Times. "It was a New York sneeze that forced Japanese pneumonia."

The U.S. jobs report, released Friday, found that hiring slowed significantly in July. Unemployment continued its slow creep upward—4.3 percent, the highest since October 2021—and wage growth eased a bit. The jobs report also revised the May and June numbers downward, by a combined 29,000 jobs, indicating that the July downshift did not come out of nowhere. It also "stoked fear of a coming recession" due to something known as the "Sahm Rule," named for economic Claudia Sahm, who identified in 2019 a useful recession indicator that our July jobs report has unfortunately met (more on that from Reason's Eric Boehm).

Inflation has showed plenty of signs of cooling a bit, responding to Federal Reserve rate hikes, but the jobs report means a rate cut "could be on the table" as soon as September, according to Fed Chair Jerome Powell.

In other words, the aspirational "soft landing"—a cooling down of inflation without triggering a recession—may not in fact be materializing. And these American warning signs are leading to global ripple effects.

Bloomberg's Joe Weisenthal has, I think, the smartest and most concise take on what's going on, for those who indulge:

10 THOUGHTS ON TODAY'S BIG MARKET SELOFF

In today's 5 Things newsletter, I jotted down a bunch of random stuff about this moment in stocks, crypto, FX, and macro.

Here they are

1) It was clear instantly on Wednesday that Powell was going to be offsides this market: pic.twitter.com/iJ6ipo7Grc

— Joe Weisenthal (@TheStalwart) August 5, 2024

Scenes from New York: Will Rudy Giuliani's real estate save him?

QUICK HITS

• The U.S. government believes Iran and Hezbollah will retaliate against Israel for the recent assassinations of Hamas leader Ismail Haniyeh in Tehran and Hezbollah leader Fuad Shukr in Beirut.
• Per tabloid reporting, which was partially confirmed by the campaign, Kamala Harris' husband, Doug Emhoff, had an affair during his first marriage (not to Harris). The woman he had an affair with allegedly became pregnant and did not keep the baby, though the campaign has not acknowledged or confirmed that part.
• "Belgium's Olympic committee announced Sunday that it would withdraw its team from the mixed relay triathlon at the Paris Olympics after one of its competitors who swam in the Seine River fell ill," reports the Associated Press. "After a spring with an abnormal amount of rainfall, tests of the river's water found that the levels of E. coli bacteria were more than 20 times higher than what World Triathlon considers acceptable," wrote Reason's Natalie Dowzicky last week. "But the mayor of Paris, Anne Hidalgo, still jumped into the Seine earlier this month in an effort to instill confidence that the waterway was just fine. But a small dip is very different from submerging yourself for hours of racing."

This is the most French possible thing that could have happened when Paris hosted the Olympics:

Running with a really stupid idea because it sounds cool, then somehow ending up fucking over the Belgians. https://t.co/K6Id4CUVV5

— Tom (@Lawmadillo) August 5, 2024

• Fun fact:

Nirvana's Nevermind was released 12,000 days ago. Its release date is closer chronologically to Fidel Castro taking control of Cuba than to today.

— Dan Szymborski (@DSzymborski) August 1, 2024

The post Markets in Panic appeared first on Reason.com.

This is part one of Operation Shakedown, a series about heavy-handed traffic enforcement tactics and property seizures in Spartanburg County, South Carolina. Click here to read part two.

In Spartanburg County, South Carolina, on Interstate 85, police officers stop vehicles for traveling in the left lane while not actively passing, touching the white fog line, or following too closely. This annual crackdown is called Operation Rolling Thunder, and the police demand perfection.

Any infraction, no matter how minor, can lead to a roadside interrogation and warrantless search. However, a 21-month fight for transparency shows participating agencies play loose with South Carolina's Freedom of Information Act (FOIA), which requires the government to perform its business in an "open and public manner."

Motorists must follow state laws with exactness. But the people in charge of enforcement give themselves a pass.

Deny, Deny, Deny

The drawn-out FOIA dispute started on October 11, 2022, less than one week after a five-day blitz that produced nearly $1 million in cash seizures. Our public-interest law firm, the Institute for Justice, requested access to incident reports for all 144 vehicle searches that occurred during the joint operation involving 11 agencies: The Cherokee, Florence, Greenville, and Spartanburg County sheriff's offices; the Duncan, Gaffney, and Wellford police departments; the South Carolina Highway Patrol, Law Enforcement Division, and State Transport Police; and the U.S. Department of Homeland Security.

Our intent was simple. We wanted to check for constitutional violations, which can multiply in the rush to pull over and search as many vehicles as possible within a set time frame. South Carolina agencies have conducted the operation every year since 2006, yet no one has ever done a systematic audit.

Rather than comply with its FOIA obligation, Spartanburg County denied our request without citing any provision in the law. We tried again and then recruited the help of South Carolina resident and attorney Adrianne Turner, who filed a third request in 2023.

It took a lawsuit to finally pry the records loose. Turner filed the special action with outside representation.

Key Findings

The incident reports, released in batches from March through July 2024, show why Spartanburg County was eager to prevent anyone from obtaining them.

• Over 72 percent of vehicle searches during Operation Rolling Thunder in 2022 produced nothing illegal. Officers routinely treated innocent drivers like criminals.
• Carrying any amount of cash is legal, but officers treated currency as contraband. The records describe no single case in which officers found a large amount of cash and did not seize it. All money was presumed dirty.
• Officers pressured property owners to sign roadside abandonment forms, giving up claims to their cash on the spot.
• South Carolina residents mostly got a pass. Officers focused on vehicles with out-of-state plates, rental cars, and commercial buses. Over 83 percent of the criminal suspects identified during warrantless searches lived out of state. Nearly half were from Georgia.
• Black travelers were especially vulnerable. Nearly 74 percent of the suspects identified and 75 percent of the people arrested were black. This is more than triple the South Carolina black population of 25 percent.

Working in the Shadows

While these records shine a light on police conduct, still more secrets remain.

By policy, the Spartanburg County Sheriff's Office and partner agencies do not create incident reports for every search. They only document their "wins" when they find cash or contraband. They do not document their "losses" when they come up empty.

Thanks to this policy, Spartanburg County has no records for 102 of the 144 searches that occurred during Operation Rolling Thunder in 2022. Nowhere do officers describe how they gained probable cause to enter the vehicles where nothing was found. The police open and close investigations and then act like the searches never happened.

This leaves government watchdogs in the dark—by design. They cannot inspect public records that do not exist. Victims cannot cite them in litigation. And police supervisors cannot review them when evaluating job performance.

Even if body camera video exists, there is no paper trail. This lack of recordkeeping undercuts the intent of FOIA. Agencies dodge accountability by simply not summarizing their embarrassing or potentially unconstitutional conduct.

The rigged system is rife with abuse. Available records show that officers routinely order drivers to exit their vehicles and sit in the front seat of a patrol car. If people show signs of "labored breathing," "nervousness," or being "visibly shaken," the police count this toward probable cause.

Officers overlook that anxiety is normal when trapped in a police cruiser without permission to leave. Even people who value their Fourth Amendment right to be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" can break under pressure and consent to a search.

If travelers refuse, officers can bring K9 units to the scene for open-air sniffs. Having no drugs in the vehicle does not always help. False positives occurred during Operation Rolling Thunder, but the lack of recordkeeping makes a complete audit impossible.

Intimidation, harassment, and misjudgment are easily hidden. The police tell travelers: "If you have nothing to hide, you should let us search." But when the roles are reversed and the public asks questions, agencies suddenly want to remain silent.

The post Operation Rolling Thunder: The Shocking Truth Behind Spartanburg's Traffic Stops appeared first on Reason.com.

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North Carolina is one of the few states to keep detailed statistics on homeschoolers—who are famously resistant to scrutiny, and for good reason—and officials in the state recorded an interesting development this year. After dipping from a pandemic-era high when public schools were closed or generally making a poor job of remote learning, the ranks of homeschoolers have again begun to rise. With census figures showing similar growth elsewhere, we have further evidence that DIY education is here to stay.

Homeschooling Surges Again

In the Statistical Summary for Homeschools 2023–2024, compiled by the state's Department of Administration, the number of registered K–12 homeschools in North Carolina stands at 96,529. Each school can serve more than one student, and the estimated number of homeschooled K–12 students is 157,642. That's down from the peak of 112,614 registered homeschools serving an estimated 179,900 students during the chaos of 2020–2021, but up from 94,154 registered homeschools and 152,717 students last year. Before the pandemic, in 2019–2020, 94,863 homeschools served 149,173 students.

For K–12 private schools, enrollment is up from 126,678 in 2022–2023 to 131,230 in 2023–2024. In 2019–2020, before the pandemic, North Carolina private schools had 103,959 students enrolled.

By contrast, traditional public school enrollment is declining.

"Traditional public schools have 1,358,003 students in 2023-24, losing 0.4% of students from last year to this year and down 3.6% overall from before COVID-19," according to Chantal Brown of EducationNC, which covers education issues in the state. "Charter schools have 139,985 students in 209 schools in 2023-24, gaining 4.9% over last year."

North Carolina isn't alone. In May, Carly Flandro of Idaho Education News found, based on Census Bureau Household Pulse Survey data, "about 6% of Idaho students were home-schooled, on average, during the past two school years. And the state data that is available shows increases since the height of the pandemic. At the same time, public school enrollment dipped this year for the first time since the 2020-21 school year."

Newsweek's Suzanne Blake added that Texas also saw a rise in homeschooling in a continuation of a trend that began "even before the pandemic."

A National Taste for DIY Education

In fact, the Census Bureau's Household Pulse Survey, which takes a continuing series of snapshots of data over the course of each year, shows a national increase among the ranks of homeschooled students from roughly 3.6 million in 2022–2023 to about 4 million this past year (there's variation depending on the snapshot you examine, so it's best to look for averages). Meanwhile, public school enrollment declines.

Based on average of survey data from 2022–2023, Johns Hopkins University's Homeschool Hub, which compiles information about DIY education, estimates that 5.82 percent of American K-12 students were homeschooled that year. Of course, that's down from the height of the pandemic when public schools closed or just dropped the ball.

"In the first week (April 23-May 5) of Phase 1 of the Household Pulse Survey, about 5.4% of U.S. households with school-aged children reported homeschooling," the Census Bureau reported of comparing data from the spring of 2020 to the fall of that year. "By fall, 11.1% of households with school-age children reported homeschooling (Sept. 30-Oct. 12)."

But before the pandemic, the folks at the Homeschool Hub remind us, "homeschooled students between the ages of 5 and 17 made up 2.8% of the total student population in the United States in 2019." That means that, while a lot of families that took to homeschooling out of necessity returned to familiar public schools when they could, enough stuck with it to more than double the number of homeschooled kids. With COVID-19 and intrusive public health policies largely a bad memory, homeschooling continues as an increasingly popular practice as a matter of choice.

Fleeing Public Schools…

In a June article about declining public school enrollment in EducationWeek, Mark Lieberman explained that about half of the loss can be attributed to population changes as the number of kids declines, but about 20 percent fled to private alternatives and another 20 percent turned to homeschooling. (Another 10 percent are unaccounted for, though some probably skipped kindergarten and others may be in DIY arrangements such as homeschooling and microschools, but unreported.)

Lieberman delved into the school choice programs that let education funds follow students to the options of their choice rather than being assigned to brick-and-mortar public schools. But he didn't examine what might drive families to abandon the familiar for education alternatives the require greater dedication and commitment.

Disappointment with schools' pandemic responses clearly played a role in driving many families to try educating their own kids—and many liked the experience. But so do endless battles over how kids are taught and, especially, what is incorporated in the lessons presented to them by often deeply politicized schools. To please one faction of parents with spin that they like is to inherently alienate others.

…To Escape Pointless Conflicts

"Schools in many parts of the U.S. have become a battleground and parental involvement is one of the topics at the center," ABC News reported last September. "Fights in school board meetings, including in Chester County, [Pennsylvania] have erupted over how race, sexual orientation, gender and other topics are brought up, or taught, in the classroom."

Families can fight school administrators and other parents in struggles that inevitably leave those on the losing side unhappy with lesson content. It makes sense for those who lose to withdraw their children from the public schools in favor of lesson plans and approaches that meet their standards. For that matter, it's tempting for even those on the winning side to forego the curriculum wars and just pick the education they like for their kids without battling their neighbors. Why argue with your ideological opponents over what should be taught when you can ignore them and teach your kids what you please?

"When parents can choose where and how their children will be educated, they're no longer at the mercy of politicians and bureaucrats," the Cato Institute's Colleen Hroncich wrote in 2022. "That means they don't have to rely on political battles when it comes to education."

That's undoubtedly a big part of the impetus for recent school choice victories that expand options for families, as well as decisions parents and students make to embrace those options. Homeschooling and other education alternatives are on the rise because they're liberating, and they work.

The post Homeschooling Grows as an Escape from Failing Schools and Curriculum Fights appeared first on Reason.com.

For the past year, New York City-based political strategy firm Mercury Public Affairs has lobbied Chicago Mayor Brandon Johnson on economic and labor issues. And beginning in 2024, it has also consulted for his political fund. According to the Chicago Tribune, there are no state or city ethics rules that prohibit a political group from helping an elected official raise money at the same time it is lobbying him.

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French and Gorsuch had an extended discussion of what was learned from the COVID cases. In truth, we need to reflect a lot more on that period than we have. So many of us (present company included) made some terrible decisions. Our faith in the power of government and self-professed "experts" was largely misplaced. And nothing that has happened since the pandemic has restored my faith. Chief Justice Roberts's "super-precedent" in South Bay has not aged well. I have to imagine that distrust was lurking in the background of Loper Bright.

I found the most enlightening exchange to turn on collegiality. I think that is a term that many people use to mean different things. It was well known that Justices Scalia and Ginsburg were dear friends, and often socialized together. They were collegial. But did RBG ever persuade Scalia to change his mind, at least on a big case? Probably not. Does that mean they were not collegial?

Of late, Justice Kagan has been pushing the latter conception of collegiality–that it entails having an open mind, and a willingness to be persuaded. I have to imagine this push is part of her effort to corral Justice Barrett's votes at every opportunity. If there is any common thread with Joan Biskupic's reporting, is that Justice Kagan flipped Justice Barrett in several cases. I've yet to see any indication that a conservative Justice has flipped a liberal member of the court to reach a conservative outcome. Flipping is not ambidextrous–it only works on the left.

I for one, reject the notion that collegiality entails a willingness to reconsider your views. It is always a judge's role to find the truth, and determine the best answer to a particular legal dispute by his or her best lights. And that process primarily entails weighing the arguments advanced by counsel, and deciding which side should prevail. To be sure, judges on a multi-member court will lobby one another for this position or that position. And to maintain relations, it is important to be willing to listen. But I do not think collegiality requires anything more than listening. Indeed, there are problems with this sort of ex-post lobbying that happens after the briefs are submitted and arguments conclude. Perhaps the parties have obvious rejoinders to some post-hoc position raised, but there is no chance to discuss it. The vote at conference reflects an assessment of the actual case, as it is presented. But when votes change after conference, invariably, it will be because of some newly-determined facet of the case that the parties did not have the chance to address. The Court could always order re-briefing and re-argument, but alas, the pattern has been to simply decide cases on grounds that would be entirely foreign to the lower courts. NetChoice and Moyle comes to mind.

David French poses this question to Justice Gorsuch, which he sort-of-answers, indirectly.

French: Justice Kagan gave some remarks to the Ninth Circuit recently where she talked about this issue of collegiality within the court. There's been some friendships, for example, most famously of Justice Ruth Bader Ginsburg and Justice Antonin Scalia. Also recently, Justice Sonia Sotomayor gave a speech in which she said some really kind things about Justice Clarence Thomas and the way that he interacts with court personnel.

But Justice Elena Kagan said something interesting. She said the collegiality that America should be looking for — and I'm paraphrasing — is not "Do we go to the opera together?" but "Are we open to each other?" Are we collegial enough to where we are open to each other? What is your temperature check on the collegiality of the court?

Gorsuch: Well, you're not going to drag me to an opera, David.

French: I wasn't expecting to.

Gorsuch: There's a lot in that question.

French: Yeah.

Gorsuch: I don't know whether you want me to talk first about the court.

French: Let's go first with the court and then with the culture.

Gorsuch: Sure. So with the court, I think it is important that we're friends and that we enjoy each other's company. We have a nice dining room upstairs. Lovely dining room, but it is the government, and we bring our own lunch. And oftentimes you'll see the chief justice with a brown bag and a peanut butter and jelly sandwich. OK. Those moments are important. They're human. But I also take the point that collegiality in a work environment means being able to work together well. And can I share just some numbers with you that I think tell the story on that?

Gorsuch goes on to explain that the Court decides many cases unanimously, and that he often votes for the "liberal" side of the case. And he says those unexpected coalitions are evidence of "collegiality."

Gorsuch: We decide the 60, 70 hardest cases in the country every year where lower courts have disagreed. That's the only point to get a case to the Supreme Court. We just want federal law — largely our job is to make sure it's uniform throughout the country, and if the circuit courts are in agreement, there's very little reason for us to take a case, unless it's of extraordinary importance.

So most of the work we do is when lower court judges disagree about the law. Magically, I think in this country there are only about 60 or 70 cases. You could argue a little bit more, a little bit less, but there aren't thousands of them. They're very few in number.

There are nine of us who've been appointed by five different presidents over the course of 30 years. We have very different views about how to approach questions of statutory interpretation, constitutional interpretation about political disagreements or interpretive methodological disagreements. Yet we're able to reach a unanimous verdict on the cases that come before us about 40 percent of the time, I think it might have been even higher this last term. I don't think that happens automatically.

I think that's the product of a lot of hard work. I think that's proof of collegiality. OK? That is what we do and we do well. Now people often say, "Well, what about the 6-3s?" Fair enough. Fair enough. But that's about a third of our docket. And it turns out they aren't always what you think they are. About half the 6-3s this last term are not the 6-3s you're thinking about.

Okay, Gorsuch does not actually answer the second part of Kagan's question. The fact that the Justices vote in unusual ways reflects the fact that all of the Justices are, to various extents, heterodox. They are not–contrary to what you might read–ideologues. Trust me, if we had an actual MAGA Court, things would look very different. But Gorsuch does not even hint that collegiality requires a willingness to be persuaded. It is the facts of a case, and the arguments advanced by counsel, that determine the unusual lineups.

I would like this same question posed to Justice Barrett. I think she might see things differently.

French also asked about Justice Kagan's ethics proposal. Gorsuch explains that the facts changed since Kagan's speech. Namely, President Biden wrote a pointless op-ed and Senator Schumer introduced a nuclear bill.

French: We're running out of time, so I do want to get to a couple of other questions. One, Justice Kagan also raised this interesting idea regarding ethics. And she talked about that the Supreme Court has a code of ethics that she appreciates, but she also talked about the possibility of enforcement through — and I'll read the quote here, one moment — "If the chief justice appointed some sort of committee of highly respected judges with a great deal of experience, with a reputation for fairness, you know, that seems like a good solution to me."

And a reason for that, the creation of sort of an outside judicial panel would, part of it would be to protect the court, to provide an outside voice that could not only adjudicate potentially valid claims but also debunk invalid accusations. And she made it clear she was speaking only for herself. What's your reaction to that concept?

Gorsuch: Well, David, since that talk, there's been some developments in the world, and this is now a subject that's being intensely discussed by the political branches, and I just don't think it would be very useful for me to comment on that at the moment.

In hindsight, would Kagan still have given her remarks, knowing what would come the following week? Or perhaps Kagan knew what was coming, and gave her remarks to shift the Overton Window? We are working with a crafty, plugged-in operator here, so be skeptical. How does that work for collegiality?

The post Justice Gorsuch Explains What Collegiality Means appeared first on Reason.com.

Lost amid the drive to expand alcohol delivery in the wake of COVID-19 has been the corresponding push—actually starting even before the pandemic—to allow more types of stores to sell alcohol. While more and more states have allowed grocery stores to sell booze in recent years, these efforts have been fiercely resisted by independent liquor store owners who claim that their small businesses will be forced to shutter if large chain retailers are suddenly able to sell alcohol.

Up until now, these debates have largely been devoid of actual data, but new empirical research has been published showing that grocery store alcohol sales don't really impact mom-and-pop liquor stores after all. At long last, this is one protectionist argument that can finally kick the bucket—if only policy makers will let it die.

Currently, 11 states still forbid wine from being sold in grocery stores while four still prohibit beer. In recent years, states as politically diverse as Mississippi, Connecticut, and Maryland have considered bills to expand wine and/or beer to their grocery store outlets, only to be met with a tidal wave of opposition. Any place where such reform legislation appears, it is immediately opposed by liquor stores in the state—sometimes called "package stores"—which already sell wine and beer and want to prevent any grocery store from becoming their new competitors in the market.

The impact of this protectionism extends far beyond the alcohol market, as well. It is why less populated states that restrict grocery store booze, such as Mississippi, have only one Costco and one Whole Foods in the entire state—and zero Trader Joe's outlets. These stores often depend on their alcohol selections, including their private-label alcohol offerings, to make their business models viable in more locales. Restricting grocery store booze can actually lock entire food stores out of a state.

This setup works just fine for liquor store owners. As one store owner claimed when discussing a Mississippi reform bill: "out of state retail corporations harvest money that could be recirculating in our local economies….Big out-of-state grocery and box retailers have had years of practice of profiting off the destruction of public health in other states." He went on to note that alcohol markets are "unable to regulate themselves without being destructive to public health and safety" and that if alcohol consumption increased, it would put "undue burden" on taxpayers, public safety officials, and the health care industry. One would be hard-pressed to find a business owner who so loathes the very product he sells, but these arguments are sadly par for the cronyist course when it comes to blocking grocery store booze sales.

While it is unclear how one might go about "harvesting" money, it is clear what this package store owner is really concerned about: protecting his bottom line. Unfortunately, package and liquor store lobbying associations are extremely influential in many states, which leads to reform efforts silently dying in committee year after year.

That's why states like Oklahoma and Colorado have opted for ballot initiatives to expand grocery store alcohol sales, as consumers overwhelmingly are in favor of it. But even successful ballot initiatives have not ended the debate, as a group of Colorado legislators introduced a bill in this year's legislative session to overturn the state's wine-in-grocery-stores ballot initiative (which only went into effect in 2023).

The main argument in favor of this repeal bill? "I don't want to see the independent liquor stores put out of business. They are owned by diverse entrepreneurs—50 percent are women- and minority-owned businesses—and provide jobs," said Colorado state Rep. Judy Amabile, a Boulder area Democrat who cosponsored the legislation. 

In other words, Justice Antonin Scalia's famous quip about the notorious Lemon test in Supreme Court jurisprudence—analogizing it to "some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried"—could just as readily apply to antigrocery alcohol claims.

After years of scaremongering and anecdotal supposition about whether grocery stores will or will not kill off mom-and-pop booze stores, facts have finally been injected into the debate by FMI, a food industry group. A new FMI paper by Vincenzina Caputo of Michigan State University studies the impact of Tennessee's 2016 reform that allowed wine to be sold in grocery stores in the Volunteer State. The paper compared the number of liquor licenses in post-2016 Tennessee with a hypothetical "synthetic version" of Tennessee in which the reforms were never passed. (This was done via a weighted average of control states that did not pass wine-in-grocery-store legislation.)

The report—a copy of which I obtained from FMI—shows just 62 fewer liquor stores selling wine in postreform Tennessee compared to the nonreform synthetic version of Tennessee—a result which was found to be not statistically significant. Overall, the quantity of liquor stores selling wine in Tennessee increased from 505 stores in 2004 to 733 in 2022, and liquor stores still held the greatest number of wine-selling licenses in the state in the postreform years. 

Further, the Tennessee wine-in-grocery-store reform accounted for a 23 percent increase in wine sales tax volume for the state—undermining the idea that chain stores "harvest" away money from local economies and the tax base.

These results show that our favorite mom-and-pop shops can do just fine in the wake of grocery stores being allowed to sell alcohol. In fact, many of these smaller stores have found a niche specializing in craft beer or hard-to-find wines and liquor that grocery stores have little interest in carrying, a point that both independent store owners and economists have made.

This new research provides a much-overdue corrective to the protectionist claims that small liquor stores have been peddling for years. Now lawmakers just need to listen.

The post Grocery Store Booze Doesn't Hurt Mom-and-Pop Stores appeared first on Reason.com.

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"All you need, besides the cocaine, is a lighter, water, baking soda, some Q-Tips, high-proof alcohol, a ceramic mug, and a piece of cheesecloth or an old T-shirt," writes Glenn Loury in his riveting Late Admissions: Confessions of a Black Conservative. The book is surely the only memoir by an Ivy League economist that includes a recipe for crack cocaine along with technical discussions of Karl Marx, Ludwig von Mises, Friedrich Hayek, and Albert O. Hirschman.

Born in 1948 and raised working class on Chicago's predominantly black South Side, Loury tells a story of self-invention, ambition, hard work, addiction, and redemption that channels Benjamin Franklin's Autobiography, Richard Wright's Native Son, Saul Bellow's The Adventures of Augie March, and Milton Friedman's Capitalism & Freedom. An alternative title might have been "Rise Above It!," the slogan of a pyramid-scheme cosmetics company on which he squandered his savings as a young man in Chicago.

Now a chaired professor at Brown University and the host of The Glenn Show, a wildly popular YouTube offering, Loury worked his way through community college, Northwestern, and a Massachusetts Institute of Technology Ph.D., became the first tenured black economist at Harvard, emerged as a ubiquitous commenter on race and class in the pages of The New Republic and The Atlantic, was offered a post in the Ronald Reagan administration, and was then publicly humiliated after affairs, arrests, and addiction all became public, threatening the end of his professional and personal life. With the support of his wife, Linda Datcher Loury (herself a highly regarded economist), Alcoholics Anonymous (A.A.), and colleagues, Loury managed to rise above it and not just rebuild his academic reputation and relationships with his children, but also gain a unique perspective on economics, individualism, and community.

Reason: When you say you are a black conservative, what does that mean?

Glenn Loury: Well, I think of a few things. One of them is thinking that markets get it right in terms of the resource allocation problem and that the planning instinct and centralized, politically controlled interference in theeconomy is suspect. Of course, there are exceptions. The general predisposition is that I like prices. I like laissez faire. AndI think the first and second fundamental theorems of welfare economics are true, that we get efficient resource allocation when we allow the interplay of self-interest. You know, classical liberal stuff.

That makes you a libertarian, not a conservative.

Well, I was going to go the Edmund Burke route. I was going to say not discarding everything that's been handed to me from the past generations. Respect for tradition, reverence for some of these things that we've been handed down. So when people can't define who's a man and who's a woman, I hold my wallet. I'm a little bit skeptical about this nouveau thing.

But the "black conservative" comes out of I think a reflex or reaction to the dilemma that we African Americans face as the descendants of slaves, a marginal population disadvantaged in various ways and struggling for equality, dignity, inclusion, freedom.

I think there's a trap in that situation: the trap of falling into a status of victim and of looking to the other, the white man, the system to raise our children and deliver us from the challenge which everybody faces of living life in good faith, of, as Jordan Peterson puts it, standing up straight with your shoulders back. Of confronting the reality that there's some stuff that nobody can do for you. This posture of dependence, these arguments for reparations, this invocation of structural and systemic [racism], when the real questions are of responsibility and role.

In your book you cover your education in economics, but it's also a memoir that traffics a lot with addiction, both with drugs and sex. Can economics explain addictive behavior and self-destructive behavior?

Well, I think of the late Gary Becker. He has a paper on addiction. And I think of George Stigler and Becker's classic paper "De Gustibus Non Est Disputandum"—about taste there can be no dispute. They do it all in terms of intertemporal preferences, where you build up a taste for certain kinds of pleasures, and you invest in them.

Did they get it right?

No, I don't think they got it right. I thought it was reductive, closed off. [It's an] "everything's going to be optimization; we just have to find the right objective function" way of looking at the world. I much prefer [game theorist and Nobel laureate] Tom Schelling's engagement with the problems of self-command, as he called it, and addiction, which was understanding the conflict within the single individual who at one point in time would want not to smoke or to use cocaine, but at another point in time would find themselves, notwithstanding their understanding that this is not good for them, being compelled to do it nonetheless, and the strategic interaction between those two types within the same person.

Some critics of capitalism say that drug addiction is the apotheosis of capitalism, that it creates a bunch of things that enslave people. But your story, in one way, is about learning self-command and control over self-destructive behaviors. Is there a larger lesson from your struggles with addiction and your ultimate triumph over it?

Yeah, A.A. saved my life. That therapeutic community, that halfway house I lived in for five months in 1988: They saved my life. I went to meetings faithfully for years. And I abstained. I was clean and sober for five years. But I eventually drifted away from the A.A. abstinence philosophy.

I did have a period where I was very religious. I was born again. This initiated during the period when I was struggling to recover from drug addiction but persisted long after I was out of the woods. It changed my perspective. The hope, the whole experience of going through rehab and what they did, it quieted me down. I started reading the Bible even before I was professing genuine religious conviction. I started memorizing passages after I began to confess some belief, going to meetings, living within myself, a kind of humility. I'm not in control. Let go and let God.

What is the work that you're most proud of as an economist?

I think my best technical paper was published in Econometrica in 1981. It's called "Intergenerational Transfers and the Distribution of Earnings." It applied what at the time were state-of-the-art technical methods in dynamic optimization and the behavior of dynamic stochastic systems to the problem of inequality. It formalized the idea that young people depend on the resources available to their parents, in part, to realize their productive potential as workers and economic agents. Investments made early in life by parents in children affect the productivity of children later in life. That productivity is also dependent on other factors beyond parental control that are random, but it depends on the resources that are available. There cannot be perfect markets to allow for borrowing forward against future earnings potential, so as to realize the investment possibilities. If a parent doesn't have the resources to fund the investment themselves, there's no place to go to borrow to get piano lessons for a kid who might develop into a virtuoso pianist.

As a consequence, inequality has resource allocation consequences. Some parents have a lot of resources; others have very little. But the kids all have comparable potential, and there's diminishing returns to investing in kids. The net result is that if you could move money from rich parents to poor parents and indirectly move investment in kids from rich families to poor families, the loss in the former would outweigh the gain in the latter.

Is that a rebuttal to the idea that you can rise above it on your own? Throughout your work you make a case that if we want a more equitable society, we have to do something to help kids whose parents don't have any resources.

I see them as two different realms of argument about human experience. On the one hand, I'm talking about how there can be market failures and incompleteness and informational impact. Illness and externalities and property rights are unclear, and things like that. And you can make arguments about a minimal role for government intervention to deal with public goods problems and environmental externality problems and perhaps market failures.

On the other hand, if I'm talking to an individual about how to live their life, about whether or not to delegate responsibility for their life to outside forces or to live in good faith, to take responsibility for what you do, that's existential, almost spiritual. It's how to be in the world as opposed to how the world works.

You're on college campuses now, and campuses are more fraught than they ever have been. Do you feel like that message has disappeared?

I think so, especially with the debate that's going on presently about the war in Gaza and the campus protests occupying spaces and setting up tents on the campus green and canceling graduations and seizing buildings and engaging in civil disobedience and whatnot.

But that all comes in the aftermath of the culture war that we've been fighting about critical race theory and diversity, equity, and inclusion. These arguments have been around for a while, and I've tended to be on the side of suspicion of the so-called progressive sentiment. There's too much focus on race and sex and sexuality as identities in the context of the university environment, where our main goal is to acquaint our students with the cultural inheritance of civilization. Their narrow focus on being this particular thing and chopping up the curriculum to make sure that it gets representative treatment feels stifling to me, especially if you let that spill over into what can be said.

The therapeutic sentiment. The kids have these sensibilities. We have to be mindful of them. We don't want to offend. We don't want anyone to be uncomfortable. No, the whole point is to make you uncomfortable. You came thinking something that was really a very superficial and undeveloped framework for thinking; I'm going to expose you to some ideas that run against that grain, and you're going to have to learn how to grapple with them. And in your maturity, you may well return to some of these, but you will do so with a much firmer sense of exactly what it is that you're affirming. I want to educate you. I don't want to placate you. I'm not here to make you feel better.

I do think there's too much reliance on system-based accounts and much less of an embrace of responsibilities that we as individuals have in our education, our politics, our social and economic lives.

What is the case against affirmative action?

The case against affirmative action: It's unfair to people who are disfavored. They didn't do anything to be in the group that you decided you wanted to put your thumb on the scale for. It has concerning incentive problems. If you belong to the favorite group, it's OK to have a B average and be in the 70th percentile of test takers. And you can get into UCLA or Stanford or Yale if you're black. But if you're white, you better have an A-minus average. And you'd better be at the 90th percentile of the test takers.

The systematic implementation of affirmative action amplifies the concerns that one might have about stigmatizing African Americans who would be presumed to be beneficiaries. This is the classic complaint of [Supreme Court Justice] Clarence Thomas, that his Yale law degree isn't worth anything because it's got an asterisk on it because of affirmative action.

There's something undignified about not being held to the same standard as other people and everybody assuming that because of the sufferings of your ancestors you're somehow in need of a special dispensation.I don't regard that as equality. You're not standing on equal ground when you're dependent upon such a dispensation. In the case of affirmative action, it's a Band-Aid. You're treating a symptom and not the underlying cause. The underlying reality is there are population differences in the express[ed] productivity of the agents in question. The African Americans, on average, are producing fewer people in relative numbers who are exhibiting these kinds of skills that your instruments of assessment are intended to measure. And if you don't remedy that problem, you're never going to get truly to equality.

Where are these population differences coming from? Is it primarily an effect of cultural change? Is it inherited differences in economic status and opportunity? Is it genetic?

I don't think it's genetic, though I can't rule out that genetics could have an effect. I'm just not persuaded by the evidence of the early childhood developmental stuff. I don't underestimate the differences in the effectiveness of primary and secondary education. This is not just race. This is race and class and geography and whatnot. I think we'd do ourselves as a society a lot of good if we were to follow the sort of wholesale reform movement in K-12, including charter schools and more competition to the union-dominated public provision sector of that part of our social economy.

But culture is a tough one. I give a lot of evidence indirectly in my memoir about the effects of culture on life experience. The culture that nurtured me coming up in Chicago had its positives. It also had its norms, values, ideals, what a community affirms as being a life well lived, how people spend their time, about parenting, things of this kind.

I read this book by two Asian sociologists, Min Zhou and Jennifer Lee, called The Asian American Achievement Paradox, and it attempts to explain, based on interview data from a couple hundred families in Southern California, how it is that these Asian communities are able to send their youngsters to places like Harvard and Stanford in such large numbers. And it basically makes a cultural argument. One of the chapters is entitled "The Asian F." It turns out that the Asian F is an A-minus, according to some of their respondents. I don't think you can discount the importance of that kind of cultural reinforcement, because at the end of the day what matters is how people spend their time.

You're a critic of race-based policies, but you also get kind of pissed when people dismiss the black experience. You say being a black American is a part of your identity. Is there a way for us to bring our individual cultural and ethnic heritage to the conversation that doesn't divide us or put us in one group or another?

We all have a story. We all have a narrative and a cultural inheritance. And yet underneath we are kind of all the same. Our struggles are comprehensible to each other, and our triumphs and our failures are things that we can relate to as human beings. And that's how we should be relating to each other.

I'm in my 70s now, and I've just written a book about my life. So who am I? What does it amount to? I'm the kid that really did grow up immersed in an almost exclusively black community on the South Side of Chicago. The music that I listened to, the food that I ate, the stories that I was told and that I told to my own children in turn. These things are related to the history, the struggles and triumphs, the dreams and hopes of African-American people. That's a part of who I am. And it annoys me when people attempt to say "get over it" to me. They're not respecting me when they tell me that race is not a deep thing about people.

It's a superficial thing, I grant you that. I grant you the melanin in the skin, the genetic markers that are manifest in my physical presentation, don't add up to very much. But the dreams of my fathers and others, the lore, the narrative about who "we" are, that's not arbitrary and it's not trivial. And it seems to me sociologically naive in the extreme to just want to move past that. That's a part of who people actually are.

But I struggle with this, because I also want to tell my students not to wear that too heavily, not to let it blinker them and prevent them from being able to engage with, for example, the inheritance of European civilization in which we are embedded. That's also your inheritance. Tolstoy is mine. Einstein is mine. And yours. I want to say to youngsters of whatever persuasion: Don't be blinkered. Don't be so parochial that you miss out on the best of what's been written and thought and said in human culture.

This interview has been condensed and edited for style and clarity.

The post Glenn Loury on Economics, Black Conservatism, and Crack Cocaine appeared first on Reason.com.

First, Gorsuch strongly intimates that the Dobbs leak did not come from his chambers. I doubt any NMG clerks lawyered up, or refused to turn over their devices:

Did the Covid pandemic and the 2022 leak of the Dobbs abortion ruling change how the high court operates? Not much, apparently. "Unsurprisingly, the court has taken more security precautions with respect to its internal drafts," Justice Gorsuch says. He declines to detail what he told his clerks about the leak. "I can tell you," he says, in a low steely voice, "that it was very important to me that anybody who works for me was totally cooperative with the investigation. And they were."

Second, Gorsuch seems to appreciate the interminable round-robin format:

Oral arguments, influenced by pandemic teleconferences, have become "a little more leisurely." Lawyers now get two minutes to speak and settle in before the interrogating begins, which Justice Gorsuch says he loves: "They're all overcaffeinated and underslept, and they have a point they want to make." At the end, each justice is given a turn for final queries. "You don't have to elbow your way in," he says. "You never leave oral argument thinking, gosh, there's a question I wanted to ask."

I am not a fan. Then again, I'm not the one trying to ask questions.

Third, Gorsuch does not like his own writing:

Then comes the work of drafting rulings, where Justice Gorsuch says his colleagues shine. "I think we have an unusually large number of very gifted writers on the court right now," he says. "I'm not patting myself on the back. I put myself kind of in the middle of the pack, frankly." Asked if he has a favorite of his opinions, he answers without pausing to think: "Nope. I hate 'em all. Do you like reading your old writing?" Sometimes the job requires it. "Inevitably I think, ah, I wish I'd said this differently, ah, I didn't explore that enough."

I agree, and would put Gorsuch around the middle of the Court with writing prowess. My current top three are Roberts, Kagan, and Barrett. But Gorsuch writes in his own distinct tone, which works for him. On that point…

Fourth, Gorsuch states that he writes his own opinions. This is not surprising, since his tone is so distinctive, term-after-term:

What is his drafting process? "I like to have a law clerk do something," Justice Gorsuch says, even if he ultimately follows the practice of his old boss, Justice Byron White: "He'd say, write me something. And he'd read it. And then he'd throw it away. And then he'd write his own thing." This isn't to say the clerks are wasting time: "It's informative to see how another mind might approach the problem."

But then Justice Gorsuch sits down to write a complete draft himself. "It's a pretty intense, lock-yourself-in-a-room-with-the-materials process," he says. "At the end of the end of the end of the day," he says, repeating himself for emphasis, "I'm the one who took the oath, right? And I have to satisfy myself, that I've gone down every rabbit hole, and I understand the case thoroughly, and I'm doing my very best job to get it right."

I appreciate that Justice Gorsuch is now writing books at a regular clip. It is unfortunate that Gorsuch's royalties pale in comparison to his colleagues'. But that shouldn't matter. Gorsuch is writing about important legal topics, in much the same way that Justices Scalia and Breyer did. Gorsuch is trying to affect the long-term legal conversation. The other Justices are trying to… well, write about themselves.

For what it's worth, Gorsuch seems to identify as a libertarian-but-not-a-nut:

Whatever the cause, he worries that the U.S., with its accumulated statutory commands and regulatory crimes, is on the far side of what one might call the legal Laffer curve. "Too little law poses problems," he says. "I love my libertarian friends, but I am not with them on anarchy, OK? Law is essential." And yet: "Too much law actually winds up making people fear law rather than respect law, fear their institutions rather than love their institutions."

I can relate.

The post Some Highlights From Justice Gorsuch's WSJ Interview appeared first on Reason.com.

Despite an authoritarian regime's efforts to obstruct free and fair elections, Venezuelans turned out in large numbers to vote for their president last Sunday, hoping for change amid widespread political repression and a humanitarian crisis. The U.S. is deeply implicated in this turmoil, as the disputed election results underscore significant geopolitical stakes and can have a significant impact on American interests.

A government-controlled electoral commission declared Nicolás Maduro the winner of the election, claiming he received 51 percent of the votes. Yet exit polls and tallies by the opposition indicate that over 70 percent of Venezuelans supported the opposition candidate, Edmundo González.

Governments around the world have denounced the election as fraudulent and demanded evidence of Maduro's claimed victory. Leaders such as Argentine President Javier Milei and Italian Prime Minister Giorgia Meloni have expressed their solidarity with the Venezuelan people's desire for change. 

U.S. Secretary of State Antony Blinken has echoed these concerns, claiming that the election results do not reflect the true will of the Venezuelan people. On Thursday, Blinken affirmed that the U.S. recognizes González as the legitimate winner of the Venezuelan elections.

Even left-wing governments like Brazil and Colombia are pressing Maduro to substantiate his claim of victory, but no such proof has emerged. In a bigger turn of events, the Carter Center, one of the few entities invited to observe the Venezuelan election, condemned the electoral commission for its lack of transparency. 

Protests erupted nationwide in response to the disputed election, with thousands taking to the streets. Several statues of former socialist president Hugo Chávez were toppled in the unrest. Clashes with security forces have resulted in hundreds of arrests and at least 17 deaths. 

Strategic Concerns for the U.S.

Supporting the democratic aspirations of Venezuelans is crucial for U.S. interests. A free Venezuela will address key U.S. policy concerns such as the rise in illegal migration, untapped market opportunities, the growing influence of Iran and China in the region, and security risks for international commerce in the region.

Should Maduro remain in power, migration to the United States from Venezuela is expected to surge. Surveys show that over 40 percent of Venezuelans plan to leave the country if Maduro continues as president. This potential influx of refugees could strain U.S. immigration systems and social infrastructure, posing a major humanitarian and logistical challenge.

American firms will also miss out on substantial business opportunities in Venezuela if Maduro stays in power. The country's vast reserves of oil and uranium represent untapped markets that could enhance U.S. energy security. Investing in Venezuela's oil industry could help diversify energy sources and reduce dependency on unstable or unfriendly regions, leading to more stable energy prices and a reliable supply of oil for the U.S. market. 

Maduro's continued rule will also likely increase the presence of U.S. adversaries such as Russia, Iran, and China in the region. Iran plans to expand trade with Venezuela to $20 billion per year, China is heavily investing in the country, and Russia has signed multiple military agreements with the South American country. As Venezuela continues to distance itself from the democratic world, one can only expect these relationships to strengthen. And having a rogue state relatively close to the U.S. border represents security concerns to American businesses and international trade in general. 

To address these challenges, American policy makers need to adopt a more strategic approach. The current administration has focused on negotiating sanction relief for the Maduro regime in exchange for promises to hold free and fair elections. But this has proven insufficient, producing no positive changes in Maduro's behavior.

A new foreign policy approach should include a reassessment of institutions such as the United Nations and the Organization of American States. For years, these institutions have systematically failed to uphold the rule of law and human rights in Venezuela. Additionally, U.S. policy makers should establish measures to prevent regimes from exploiting international treaties and cooperation agreements. This includes sectors like finance and energy, where regimes have undermined democratic nations' interests. Finally, the methodology and effectiveness of sanctions should be reassessed. Despite a series of sanctions imposed by the U.S. on countries like Venezuela, Russia, and Iran, the International Monetary Fund projects economic growth for all these nations in 2024.

Failure to address these issues risks empowering autocrats around the world, jeopardizing U.S. national security, economic performance, and diplomatic standing.

The post Maduro Is Bad for Venezuela and Bad for the U.S. appeared first on Reason.com.

More than half of Americans believe the First Amendment can go too far in the rights it guarantees, according to a new survey from the Foundation for Individual Rights and Expression (FIRE), a First Amendment–focused nonprofit.

The survey, released on Thursday, asked 1,000 American adults a range of questions about the First Amendment, free speech, and the security of those rights. Fifty-three percent of respondents agreed with the statement "The First Amendment goes too far in the rights it guarantees" to at least some degree, with 28 percent reporting that it "mostly" or "completely" describes their thoughts.

Americans were further divided along partisan lines. Over 60 percent of Democrats thought the First Amendment could go too far, compared to 52 percent of Republicans.

"Evidently, one out of every two Americans wishes they had fewer civil liberties," Sean Stevens, FIRE's chief research adviser, said on Thursday. "Many of them reject the right to assemble, to have a free press, and to petition the government. This is a dictator's fantasy."

Further, 1 in 5 respondents said they were "somewhat" or "very" worried about losing their job if someone complains about something they said. Eighty-three percent reported self-censoring in the past month, with 23 percent doing so "fairly" or "very" often.

Just 22 percent of respondents said they believed the right to free speech was "very" or "completely" secure. But despite these concerns, over a third said they trusted the government "somewhat," "very much," or "completely" to make fair decisions about what speech is deemed "intimidating," "threatening," "harassing," and "indecent," among other labels.

In all, almost 7 out of every 10 respondents agreed that America is going in the wrong direction when it comes to free speech—though it's not clear whether respondents think our culture and government are becoming too tolerant, or not tolerant enough, of controversial speech.

This latest survey indicates that many Americans are concerned about the security of free speech rights, yet also eager to censor speech they personally find distasteful.

"Americans have little tolerance for certain forms of protected speech and a lot of tolerance for unprotected conduct, when it should be the other way around," Stevens said. "This poll reveals that the state of free speech in America is dire."

The post More Than Half of Americans Think the First Amendment Provides Too Many Rights appeared first on Reason.com.

The post Today in Supreme Court History: August 3, 1994 appeared first on Reason.com.

Before Mariupol, before Gaza, before Hiroshima and Nagasaki and Dresden and the Blitz, there was Guernica. The little Basque town in northern Spain was once the byword for state cruelty following the 1937 bombing of Guernica during Spain's civil war—an unprecedented air attack on a populated city that shocked the global conscience and inspired Pablo Picasso's most famous work, Guernica.

An atrocity is a weird thing for a place to be famous for, but neither tourists nor locals seem very fazed. Guernica, the painting, is such an abstract depiction of civilian suffering that visitors have no problem posing in front of it. Guernica, the town, is a center of Basque culture. For Basques (who know it as Gernika), the violence that moved Picasso nearly a century ago is merely one chapter in a long history of resilience in their quest for freedom.

Predating the Roman Empire and even the Celtic civilization before it, people along the Bay of Biscay have spoken Basque, a language with no known living relatives. Empires have risen and fallen, but Basque Country has preserved its unique culture and laws. From medieval times onward, Spanish monarchs would swear to uphold Basque traditions under a sacred tree in Guernica.

"It is a republic; and one of the privileges [Basques] have most insisted on, is not to have a king," wrote American Founder John Adams in 1786. "Another was, that every new lord, at his accession, should come into the country 
in person, with one of his legs bare, and take an oath to preserve the privileges of the lordship."

More than a century of Spanish revolutions and crackdowns gradually eroded Basque autonomy. Then, in July 1936, the pro-fascist Gen. Francisco Franco launched a mutiny against the Third Spanish Republic. In a bid for Basque support, the besieged Republicans quickly restored self-government to the region. By April 1937, Guernica was the last pro-Republican community standing between Franco's forces and the major city of Bilbao. With German and Italian air support, Franco moved to take the town.

"Guernica, the most ancient town of the Basques and the centre of their cultural tradition, was completely destroyed yesterday afternoon by insurgent air raiders," reported British war correspondent George Steer a day after the first wave of bombers struck. "In the form of its execution and the scale of the destruction it wrought, no less than in the selection of its objective, the raid on Guernica is unparalleled in military history."

"Guernica was not a military objective," Steer continued. "The object of the bombardment was seemingly the demoralization of the civil population and the destruction of the cradle of the Basque race."

Steer's report shocked Picasso, who had been commissioned by the Spanish Republic to make a display for the World's Fair in Paris. He abandoned his previous plans and painted Guernica within a few weeks. The artist's dramatic response to this tragedy—which was controversial at the time seeing as the World's Fair was meant to be a feel-good cultural exhibition—was showcased next to photos of dead children and propaganda films about Franco's cruelty.

What was once "unparalleled" too soon became routine. Following the raid on Guernica, the Imperial Japanese military launched a massive invasion of Shanghai. (A photo of a Chinese boy in the rubble, titled "Bloody Sunday," became another symbol of the brutality of air wars.) World War II saw air warfare escalate dramatically, culminating in hundreds of thousands killed in carpet bombing, firebombing, and atomic bombing.

Today, Guernica is a sleepy, peaceful town. Franco's death in 1975 marked Spain's return to a constitutional monarchy, restoring significant political autonomy to the Basque people. The Guernica town hall flies both a Spanish flag and a Basque flag while most other buildings don't bother with the Spanish one. A nearby gift shop sells Basque nationalist souvenirs—keychains with Basque crosses, fridge magnets with pastoral scenes—while Basque-language punk rock emanates from the speakers.

A replica of Guernica sits near the holy tree where the (now elected) leader of Basque Country once again takes the oath of office, and tourists flock to take photos next to the mural. What was once a jarring disruption to cultural tradition is now cultural tradition itself.

The post Guernica's Recovery From Ruin appeared first on Reason.com.

Vice President Kamala Harris is expected to announce her running mate next week. She is reportedly considering several governors who theoretically appeal to moderate voters in the swing states: Pennsylvania Gov. Josh Shapiro, Minnesota Gov. Tim Walz, and Kentucky Gov. Andy Beshear. Arizona Sen. Mark Kelly and Transportation Secretary Pete Buttigieg are also in the mix.

Which of these individuals would be best from a libertarian perspective is not as clear cut as it was on the Republican side, where North Dakota Gov. Doug Burgum was obviously better than the alternatives. (Unfortunately, former President Donald Trump selected Ohio Sen. J.D. Vance, whose distinguishing feature is his contempt for libertarian economic policies.) Nevertheless, it's possible to parse them.

First, the national figures. Unlike the other names on the list, Buttigieg is actually a member of the current administration and has been responsible for implementing federal policies. Unfortunately, his tenure as Transportation secretary will not be remembered as particularly libertarian. While he has signaled openness to tearing down bureaucratic "barriers" in the wake of transportation-related disasters, he has not made any serious attempts to grapple with said bureaucracy. On the contrary, when things have gone wrong, he has reserved most of his ire for private companies like Southwest Airlines and Norfolk Southern, rather than the outdated and meddlesome regulators who make their jobs more difficult.

Buttigieg comes across as a technocrat rather than a progressive: He appears to believe that smart, capable people like himself should run the government and make things more efficient. When he pursued the presidency in 2020, liberal news site Vox described him as a "product of the meritocracy" and did not intend it as a compliment. He enrages the left, but this does not make him a friend to liberty, amusing though it is. His foreign policy views also seem somewhat more hawkish than other standard-issue Democrats, which is not an improvement.

Then there's Kelly. As an astronaut and the husband of former Rep. Gabby Giffords (D–Ariz.)—who was grievously wounded after being shot in the head by a deranged gunman—he is certainly an inspiring figure. However, his political positions are mostly in line with his party. He has voted in support of President Joe Biden's approved policies 95.5 percent of the time. On energy and environmental issues, he has deviated from the progressive wing of the party: He opposes the Green New Deal and has voted in favor of increased oil drilling in the Gulf of Mexico. On the other hand, he is one of the more outspoken Democrats on gun control.

Arizona's U.S. senators have tended to be more individual-minded, bipartisan, and independent: see Kyrsten Sinema. For those reasons, Kelly might be slightly preferable to some of the other options.

Now for the governors. Walz and Beshear were both elected in 2018 and thus have longer records than Shapiro, who became governor of his state just last year. Alas, their tenures are not particularly inspiring, as both of them overlapped with the COVID-19 pandemic—providing an opportunity to implement policies that were anathema to liberty.

Walz implemented many of the same heavy-handed, liberty-infringing mitigation policies as other blue state governors; he also maintained a government hotline for people to call and report their neighbors for violating social distancing rules. When Republicans complained about it, he replied: "We're not going to take down a phone number that people can call to keep their families safe." This alone should be disqualifying.

For his part, Beshear attempted to keep lockdowns, mask mandates, and school closures in place—well into the pandemic. In fact, he reimposed masks on public school students in August 2021, saying, "We are to the point where we cannot allow our kids to go into these buildings unprotected, unvaccinated and face this delta variant." This is also disqualifying.

It's nice that Walz and Beshear are supportive of legalizing, or at least decriminalizing, marijuana. But it's hard to look past the whole wrestling-masks-onto-5-year-olds thing. The best thing to be said for them is that they are not Michigan Gov. Gretchen Whitmer.

That leaves Shapiro, who has had mercifully less time in office to do things that would offend libertarians. To his credit, he has supported several encouraging initiatives. One of his first actions after taking office was to eliminate the college degree requirement for government jobs. He also made some small progress on reforming the state's occupational licensing system. He is a supporter, to a degree, of school choice; he ultimately vetoed a voucher bill after facing significant pressure from teachers unions, however.

Given how popular he is in Pennsylvania—a must-win state for Harris—Shapiro has emerged as the likeliest veep pick in recent days. Like Buttigieg, Shapiro seems to make the far-left very upset: The New Republic called him "The One Vice Presidential Pick Who Could Ruin Democratic Unity." While that sounds entertaining enough, the main knock on him from the left is that he harshly condemned the recent pro-Palestinian protests on college campuses and is vocally supportive of Israel. For libertarians who would like to see the U.S. become less involved in Middle Eastern affairs and stop spending American tax dollars on costly foreign wars, these are reasonable concerns.

At the same time, it's hard to imagine Vice President Shapiro steering a markedly different course on foreign policy than any of the other options; on most other issues, he is slightly better. All this contributes to a weak—very weak—libertarian preference for Shapiro.

The post Josh Shapiro Is Kamala Harris' Best Bet for Veep appeared first on Reason.com.

Update: About 14 hours after Rittenhouse shared his video explaining his support for Ron Paul, declaring that "you must stand by your principles," he announced that he spoke "with members of the Trump's [sic] team" and that he is now "100% behind Donald Trump."

"A lot of people are upset that I said I'm going to be writing in Ron Paul for president of the United States, and that is true. I will be writing in Ron Paul." So said Kyle Rittenhouse in a recent video posted to X. A lot of people, it appears, are indeed upset. Should they be?

Rittenhouse catapulted to national attention in 2020 when, at age 17, he armed himself, traveled to Kenosha, Wisconsin, during a night of riots and civil unrest, and shot three men, killing two. It was always Rittenhouse's contention that he'd acted in self-defense, and his arrest galvanized many in the conservative movement who said the prosecution was motivated not by justice but by the political moment. Supporters helped raise $2 million for Rittenhouse's bail, and he ultimately attracted the attention of former President Donald Trump, who defended him while in office and who hosted Rittenhouse at Mar-a-Lago after leaving the White House.

So one of the primary reactions to Rittenhouse's choice for president is that he's guilty of betrayal. Trump and the MAGA movement had his back when his life took its most dire turn, the thinking goes, so Rittenhouse owes them his loyalty at the ballot box. That general sentiment is summed up aptly by the one-and-only Catturd: "I can stomach a lot of things—but backstabbing millions who supported you at your lowest point. Then turning on Trump right after he got shot," he said in a viral post. "Can't stomach it—won't put up with it—forgotten forever."

In other words, Rittenhouse is allegedly in debt to Trump and his followers for supporting his claims of innocence. He was acquitted in 2021 of all charges, including first-degree reckless homicide, two counts of first-degree recklessly endangering safety, first-degree intentional homicide, and attempted first-degree intentional homicide. That was the right decision. And it was the one the jury came to because that is what the evidence clearly supported. The right to self-defense is not selectively available to people with certain views. Rittenhouse owes no one a thing for not getting convicted of charges that prosecutors should not have brought to begin with.

So why did Trump fail to gain Rittenhouse's support? "Unfortunately, Donald Trump had bad advisers making him bad on the Second Amendment, and that is my issue," he said in his video. "If you cannot be completely uncompromisable on the Second Amendment, I will not vote for you." Trump's record includes a bump stock ban, which Reason's Jacob Sullum noted turned "peaceful gun owners into felons by fiat," and his support for red flag laws. Those moves may not be deal-breakers for many people, including other staunch supporters of the Second Amendment. They apparently are for Rittenhouse. It's his one vote, and he can do with it what he wants.

Yet his announcement also elicited what has become the predictable response, on both the left and the right, to similar defections from the mainstream: You're helping elect the other guy. For one, that vastly overstates the power of a vote—an unpopular thing to say, sure, but true nonetheless. And it's particularly true for Rittenhouse, who lives in the Dallas–Fort Worth area; if he's casting his vote there, I'm going to go out on a limb and assume it will not derail Trump's electoral victory in Texas, which is almost assured.

But even if it were true that Rittenhouse's vote would have some sort of Earth-shattering effect on the outcome of the 2024 election, a vote is earned. It's an expression of support. If neither mainstream option can produce a platform that is sufficiently palatable to someone, they certainly have the prerogative to make that known—by supporting someone else or, gasp, not voting altogether.

After all, no one is entitled to your vote. They're not entitled to it simply because they're a member of a particular political party, and they're not entitled to it for supposedly being less bad than the other side. And they're certainly not entitled to it just because they said supportive things about you in a time of need.

The post Nobody Owes Trump Their Vote. Not Even Kyle Rittenhouse. appeared first on Reason.com.

After black-clad demonstrators protested Donald Trump's inauguration in an "Anti-Capitalist/Anti-Fascist Bloc" march on January 20, 2017, federal prosecutors in Washington, D.C., charged more than 200 of them with rioting. While 21 defendants pleaded guilty, all of the other cases ended in acquittals, mistrials, or charges dismissed with prejudice. One reason for that fiasco, according to recently filed disciplinary charges, was the discovery that the federal prosecutor who oversaw the cases persistently withheld exculpatory evidence and repeatedly lied about it to judges and defense attorneys.

In a "specification of charges" filed with the D.C. Court of Appeals Board of Professional Responsibility last month, Disciplinary Counsel Hamilton P. Fox III alleges that Jennifer Kerkhoff Muyskens, who is now a federal prosecutor in Utah but previously worked at the U.S. Attorney's Office for the District of Columbia, violated six rules of professional conduct while trying to convict "DisruptJ20" protesters, including many who had not participated in vandalism or violence. Muyskens "knew that most defendants did not commit violent acts themselves," Fox notes, but "she argued that these defendants were still liable for felony rioting and felony property destruction because they joined a criminal conspiracy to use the protest march to further the violence and destruction that occurred."

To support that theory, Muyskens presented video of a DisruptJ20 planning meeting that had been clandestinely recorded by an "operative" from Project Veritas, a conservative group that frequently has been accused of using misleadingly edited videos to portray progressive and leftist organizations in a negative light. Although Muyskens "understood Project Veritas had a reputation for editing videos in a misleading way," Fox says, she initially concealed the source of the video, saying in court that "who provided it is irrelevant." And although Muyskens "knew that Project Veritas had omitted and edited some of its videos" before releasing them, Fox adds, she "did not request or obtain Project Veritas's missing videos or unedited footage."

According to Fox, Muyskens and Metropolitan Police Department (MPD) Detective Greggory Pemberton edited the meeting footage in ways that bolstered the prosecution's case, and Muyskens covered up the extent of those edits. Fox says Muyskens also withheld Project Veritas videos of other DisruptJ20 meetings that would have been helpful to the defense, pretending that they did not exist. And she allegedly concealed the fact that Pemberton, in testimony to a grand jury, had erroneously identified one of the DisruptJ20 defendants as a woman who appears in the video of the planning meeting.

According to the Supreme Court's 1963 ruling in Brady v. Maryland, due process requires prosecutors to share potentially exculpatory evidence with the defense. Fox says Muyskens violated that rule by excising footage and withholding videos that could have been useful in rebutting the prosecution's case.

The material that Muyskens and Pemberton excised from the planning meeting video included footage that would have revealed its provenance. They also cut footage of a phone call in which a Project Veritas infiltrator told a colleague, "I don't think they know anything about the upper echelon stuff."

The excised footage "revealed that the video was filmed as part of Project Veritas's infiltration of DisruptJ20, which tended to undermine the credibility and reliability of the government's evidence," Fox writes. "In addition, the operative's post-meeting report indicated that some DisruptJ20 protest organizers did not know anything about plans or decisions that were being made by an 'upper echelon.' This lack of knowledge supported the non-violent defendants' theory that, assuming a plan to riot existed at all, only a small group was involved, which they knew nothing about. Alternatively, if the operative was discussing protest organizers being unaware of Project Veritas's 'upper echelon' plans, the statements supported…claims that Project Veritas conspired to frame DisruptJ20 defendants for third-party violence, including by possibly inciting violence themselves. Both judges who later considered the issue…found that the complete, unedited footage was exculpatory."

The videos that Muyskens withheld included evidence that, contrary to the prosecution's narrative, the DisruptJ20 protest was supposed to be peaceful. Those videos "were exculpatory," Fox explains, "because they showed that DisruptJ20 planning meetings consistently involved training and instructing protesters how to participate in its unpermitted 'Actions,' including the anti-capitalist march, as non-violent protests, using nonviolence and de-escalation techniques, which supported the non-violent defendants' claim that their intent was merely to peacefully protest."

The undisclosed videos also "showed Project Veritas operatives discussing their infiltration operation of DisruptJ20, which supported the defense's theory that Project Veritas conspired to blame DisruptJ20 for others' misconduct," Fox notes. "For example, the undisclosed videos showed Project Veritas operatives discussing—before the Inauguration protests—how they were providing information on DisruptJ20 to the FBI, how there was likely to be violence from 'outside influencers,' and how DisruptJ20 would 'catch the blame' for outsiders' misconduct because the FBI was 'going to say' that they incited it."

In court, Fox says, Muyskens "falsely said that the government had made only two edits, which were both to redact the identity of the videographer and an undercover officer," and "that, other than the two redactions, the defense had the same videos as the government." She "falsely told the court that she had provided defense counsel with 'the full entirety of those videos from that day.'"

According to Fox, "Pemberton testified falsely that Project Veritas had produced only the four disclosed video segments of the [planning meeting video]" and that "the only editing the government did was to combine the first three video segments into one exhibit to be played at trial." Muyskens and Pemberton "did not disclose how they had edited the original videos they received from Project Veritas," and they did not "disclose that they had omitted from discovery many other videos Project Veritas videos of DisruptJ20's planning meetings."

Muyskens told a judge that Project Veritas had "provided unedited video" at Pemberton's request and that "we posted the video" to the discovery portal. Those statements, Fox says, "were false and misleading." Muyskens also "falsely said that other than redacting the identities of the Project Veritas operative and [the undercover officer], 'the defense has the exact video we have.'" The judge "later found that [Muyskens] 'left a clear impression' that she had disclosed everything that Project Veritas had produced."

Muyskens told another judge that "the government had 'provided the clips as we have them'" and that "'the only editing' by the government 'was to combine the three clips' of the anti-capitalist 'breakout' into a single video exhibit for trial." Those statements also "were false and misleading," Fox says.

Muyskens eventually "acknowledged that the government had additional, undisclosed Project Veritas videos of DisruptJ20's planning meetings." But she "mischaracterized them and falsely suggested that they were irrelevant."

During the investigation of her conduct, Fox says, Muyskens "repeated her false statements and material omissions" regarding the video edits, the withheld videos, her suppression of "relevant information and evidence," her failure to produce grand jury transcripts from the misidentified defendant's case, her "misrepresentations and omissions to the grand jury, the defense, and the court," and her failure to "correct known misrepresentations to the court." She also "made additional false statements and material omissions to falsely explain her conduct." She claimed, for example, that the undisclosed videos "were irrelevant and did not discuss the anti-capitalist march."

Fox says Muyskens' actions violated the District of Columbia's Rules of Professional Conduct in half a dozen ways:

1. She allegedly violated Rule 3.3(a) by "knowingly making false statements, offering false evidence, and failing to correct material false statements to the court."

2. She allegedly violated three sections of Rule 3.4 by "obstructing the defense's access to evidence and altering or concealing evidence, or assisting another person to do so when she reasonably should have known that the evidence was or may have been subject to discovery; knowingly disobeying the court's direct orders to produce information in the government's possession without openly asserting that no valid obligation existed; and/or failing to make reasonably diligent efforts to comply with the defense's discovery requests."

3. She allegedly violated two sections of Rule 3.8 by "intentionally avoiding pursuit of evidence and information because it may have damaged the prosecution's case or aided the defense; and by intentionally failing to disclose to the defense, upon request and at a time when use by the defense was reasonably feasible, evidence and information that she knew or reasonably should have known tended to negate the guilt of the accused or mitigate the offense."

4. She allegedly violated Rule 8.4(a) by "knowingly assisting or inducing another to violate the Rules of Professional Conduct and/or doing so through the acts of another."

5. She allegedly violated Rule 8.4(c) by "engaging in conduct that involved reckless or intentional dishonesty, misrepresentations, deceit, and fraud, which misled the grand jury, the defense, the court, the government, and disciplinary authorities about the
evidence in the government's possession and the government's conduct."

6. She allegedly violated Rule 8.4(d) by "engaging in conduct that seriously interfered with the administration of justice."

Possible sanctions against Muyskens range from "temporary suspension of her law license to full disbarment," Washington City Paper notes. The Washington Post reports that lawyers for Muyskens did not respond to requests for comment and that "Pemberton also did not respond to an inquiry." The U.S. attorney's offices in D.C. and Utah "declined to comment." So did the MPD, which "would not say whether the department has opened an investigation of Pemberton, who now chairs the police labor union."

The failed prosecutions and the disciplinary charges against Muyskens are not the only embarrassments stemming from the Inauguration Day march. In 2021, the Post notes, "the D.C. government agreed to pay $1.6 million to settle two lawsuits" by protesters who argued that the police response to the DisruptJ20 march violated their First Amendment rights.

"It speaks volumes that the District has chosen to settle rather than defend MPD's obviously unconstitutional actions in court," Jeffrey Light, one of the protesters' attorneys, said when the settlement was announced. Scott Michelman, legal director at the American Civil Liberties Union of the District of Columbia, added that "MPD's unconstitutional guilt-by-association policing and excessive force, including the use of chemical weapons, not only injured our clients physically but also chilled their speech and the speech of countless others who wished to exercise their First Amendment rights but feared an unwarranted assault by D.C. police."

The post Prosecutor of Anti-Trump Protesters Allegedly Withheld Exculpatory Evidence and Lied About It appeared first on Reason.com.

New cert petition! In 2013, a Clovis, Calif. officer disclosed to a fellow officer that his girlfriend had filed a confidential domestic violence complaint against him—knowing full well that she was trapped in a room with him at that very moment. He then brutally attacked her. And though the Ninth Circuit ruled earlier this year that it was "obvious" that disclosing the report put her in grave danger, it granted the first officer qualified immunity anyway, finding that no factually identical prior case gave the officer fair notice the disclosure was unconstitutional. The decision reinforces a circuit split and also conflicts with Supreme Court precedent that says a factually identical case is not necessary in situations where an official has time and opportunity to deliberate (as opposed to a split-second decision on the use of force). Today, IJ asked the Supreme Court to weigh in.

Is school choice racist? Did it originate with post-Brown v. Board opposition to public school integration? Shameful mistruths! IJ Senior Attorney Michael Bindas takes to the Syracuse Law Review and sets the record straight.

Over at the Advisory Opinions podcast, IJ's Anthony Sanders indicts Justice Oliver Wendell Holmes Jr., who turns out to have been a bit of a bad egg Constitution-wise.

1. The USDA goes after Amazon for allegedly aiding and abetting violations of the Plant Protection Act and the Animal Health Protection Act because importers of illegal plant and animal products had them delivered through Amazon fulfillment centers. An ALJ agrees and fines the company $1 mil. D.C. Circuit: But SCOTUS has told us that aiding-and-abetting liability requires culpability. As for USDA's argument that its strict-liability reading of the statute is entitled to Chevron deference . . .
2. Fun fact: People for the Ethical Treatment of Animals once operated a blog called "The PETA Files," a name that apparently no one on their staff ever read out loud. But that's not the limit of their online presence—they also like commenting on the Facebook and Instagram pages of the National Institutes of Health. Seeking to moderate "off-topic" comments, NIH deploys a keyword filter, concealing comments containing words like "PETA," "cruelty," and "torture." PETA sues, alleging the filter policy violates the First Amendment. D.C. Circuit: And it does. NIH can exercise some moderation, but it has to draw reasonable lines, which the filter policy does not.
3. The DFINITY Foundation is a Swiss-based nonprofit that develops technology that enables the Internet Computer blockchain and its ecosystems, which are powered by novel "chain-key cryptography," allowing smart contracts to serve web directly to end users and mass market Web3 services to run entirely on-chain, all while being governed by a protocol-integrated DAO that decides using liquid democracy. Your summarist doesn't know what any of that means, but can confirm that the Second Circuit has rejected the Foundation's defamation lawsuit against financial analysts who speculated as to why the Foundation's cryptocurrency token lost 95% of its value within two months of its release.
4. North Carolina officer attempts to stop an allegedly stolen car, eventually blocking it into a dead-end section of a parking lot. Officer leaves his car while the driver of the stolen car tries to turn around and drive away. The officer fires one shot through the windshield and more shots through the passenger window, killing the driver. His estate sues for excessive force. District court: Dismissed; the claims in plaintiff's complaint are contradicted by bodycam footage. Fourth Circuit: They're not blatantly contradicted, and that's what it takes for video to torpedo an otherwise valid complaint. Case un-dismissed.
5. West Virginia officer seeks to stop motorcyclist whose passenger isn't wearing a helmet. The motorcyclist flees! But police soon have the pair (plus the motorcyclist's girlfriend) surrounded in their house. Was it a clearly established constitutional violation for officers to (allegedly) force their way into the home? Fourth Circuit: Indeed, the warrantless entry claim goes forward. But it was not excessive force to shoot the motorcyclist dead after he jumped out a window and pulled an AR-15 on an officer. Partial dissent: The officers should also have gotten QI for shooting the unarmed girlfriend, who jumped out after him.
6. Fifth Circuit: Do these tanker-truck drivers transport property in "interstate or foreign commerce" even though they only move crude oil inside Texas? Our precedent—which we very pointedly do not say is correct—requires us to say the answer is yes. Judge Oldham, concurring: And let's have a quick word about how bonkers that precedent is.
7. Allegation: After three youths driving in New Orleans ask an officer for his help in looking for a lost chihuahua, the officer gets a funny feeling and—along with another officer—tails the youths and orders them out of the car at gunpoint. Everything being in order, they're permitted to leave. Unreasonable seizure? Excessive force? Might be, says the Fifth Circuit, reversing the lower court's judgment in favor of the officers. Sadly, however, the panel also notes that it is unable to grapple with plaintiff's argument that qualified immunity sits on a throne of lies—only the Supreme Court can do that.
8. In 2021, Galveston County, Tex. officials redraw voting maps and eliminate the sole majority-minority district, where a combination of Black and Hispanic voters had outnumbered white voters. Fifth Circuit (en banc, 12-6): We overrule our precedent that had allowed coalitions of different minorities to bring voter dilution claims under Section 2 of the Voting Rights Act.
9. A fleet of airlines challenge a proposed DOT rule regulating how they disclose fees during the booking process and seek a stay while their challenge goes forward. DOT: Surely you can't be serious? Fifth Circuit: Don't call me Shirley. And if Congress had wanted to allow rulemaking in this area they would have said something about it. Stay granted.
10. Is the Rio Grande "navigable"? The en banc Fifth Circuit splits on this subject as it applies to a 1,000 foot stretch where Texas' governor installed some tethered buoys. The majority reverses a preliminary injunction but the full trial is still upriver. And one concurring judge says that if the governor thinks there's an invasion—like there was from 19th century cattle rustlers—courts must abdicate defer. Dissents: Haven't y'all read Gibbons v. Ogden?
11. New Orleans crime lab employee warns superiors that one of their drug tests is unreliable. They respond that the lab's employees will themselves be subjected to the potentially unreliable drug tests, and the employee asks to go on leave. His supervisor then goes to his home with two other armed officers to conduct a "wellness check," and they both force their way into the home and force him into a police car to take him to police headquarters. Employee sues, saying the home search and his seizure violated the Fourth Amendment. Qualified immunity? Fifth Circuit: No immunity for the supervisor, but the Nuremberg defense works for the two other officers.
12. Consider this timeline. 2018: Brentwood, Tenn. police detective gets a search warrant for a lawyer's private Facebook records. 2020: Lawyer learns of the search through discovery in a criminal proceeding against her. 2022: Detective testifies that one of the main reasons she got the search warrant was because the lawyer criticized the police, and the lawyer brings a First Amendment retaliation suit. Is the lawsuit timely under the one-year statute of limitations? Sixth Circuit (per curiam): Under our circuit's discovery rule, the lawyer knew about the search and who did the search in 2018, and that's enough to start the clock. Claim time-barred. (Any equitable-tolling argument was forfeited.) Concurrence 1: The real problem is just that the facts show the lawyer should have known in 2018 that she was being retaliated against. Concurrence 2: Our discovery rule seems wrong, and Supreme Court precedent says what matters is just whether the elements of the cause of action have occurred, whether or not the plaintiff knew about them.
13. Ohio school district prohibits students from intentionally using another's non-preferred pronouns that rise to the level of harassment. Parents with children in schools who believe that biological sex is immutable challenge the policy under the First Amendment. Sixth Circuit: You can use their names, thus avoiding pronouns, or not speak to them at all. No injunction. Dissent: The policy is a viewpoint-based regulation that compels students to speak in a manner with which they disagree, namely that biology doesn't determine gender. It should be enjoined.
14. Teen witnesses two assailants—one who is 320 pounds and one who is bald—commit a murder in Saginaw, Mich. in 2015. At a lineup, a police sergeant presents two suspects—neither of whom are bald or weigh anywhere near 300 pounds. The teen says they are not the assailants and later, at trial, testifies to the same. But wait! The sergeant produces a report saying that on the day of the lineup the teen did indeed finger the suspects, who spend over five years incarcerated before they're cleared. Sixth Circuit: Their fabrication of evidence and malicious prosecution claims against the sergeant can go forward.
15. Hamilton County, Ohio judge is indicted on multiple felony charges, including claims that she backdated documents to prevent appeals. Her 2014 trial attracts a great deal of interest; two people attending a pretrial hearing are arrested for taking pictures in the hallway (charges later dropped). They sue. Sixth Circuit (2018): No qualified immunity. Sixth Circuit (2020): Qualified immunity for all claims other than official-capacity claims. Jury (2022): One arrestee's rights were violated, and she gets $35k in damages plus $500k in attorney's fees. Sixth Circuit (2024, unpublished): The arrest was not in retaliation for protected conduct or caused by the county's failure to train its employees, so the jury verdict is reversed and money yanked. (The judge was convicted of improperly using her position to help her brother, spent 75 days behind bars, and saw her law license suspended.)
16. Portage County, Ohio woman left near dead with severe head injuries after a hammer attack. She first has no memory of what happened, but, after police show her a photo of a man who they say did it, she eventually (months later) says she knew all along that he did it. Suppress the identification? Ohio Court of Appeals (2018, over a dissent): Nah. The cop shouldn't have done that, but her identification of the man was nonetheless reliable. Sixth Circuit (2024, over a dissent): Calling the cop's procedures "'impermissibly suggestive' is a gross understatement." Habeas granted.
17. Listen, friends: We've all had that deposition where we thought opposing counsel crossed the line from zealous representation to unreasonable and obstructive conduct. Don't curse them out afterwards. Definitely don't physically push them. And definitely, definitely don't later tell the district judge you "unintentionally" brushed against them. Seventh Circuit: Sanctions award affirmed.
18. The Seventh Circuit voted to go en banc last year because its take on the Rooker-Feldman doctrine was a mess. After careful deliberation, the en banc court holds that the Rooker-Feldman doctrine is, in fact, a mess and that SCOTUS should really do something about that. In the meantime, if you add up the votes across three dueling en banc opinions, different parts of which are joined by different judges, the court reaches at least a few holdings about how it's going to apply Rooker-Feldman going forward, but, honestly, your summarist ran out of fingers trying to count the votes and respectfully refers you to the summary in Judge Hamilton's lead opinion, which we're sure is right.
19. Lobbying gets a bad rap, but, the Eighth Circuit reminds us, petitioning the gov't for a redress of grievances is, in fact, a core component of the First Amendment. As a result, Missouri's prohibition on former state legislators and staff working as lobbyists for two years after they leave office is subject to strict scrutiny, which it comes nowhere close to passing.
20. Allegation: Over the course of three days, pretrial detainee at White County, Ark. jail repeatedly alerts officers that a spider bite has caused an infection in his arm and hand, which are oozing pus and swelled to the size of a small watermelon. They ignore him. Eighth Circuit: We've previously held that ignoring a detainee's serious medical need for two days is unconstitutional. The lower court's denial of qualified immunity to the officers is affirmed.
21. Man suffering from mental illness calls Las Vegas police for help. Though he's unarmed and nonthreatening, two officers drag him to the ground and pin him down. He dies of asphyxiation. Officers: We stopped kneeling on him after he was cuffed; in the prior case at issue, officers continued pinning down the decedent after he was cuffed. Ninth Circuit: No need for a factually identical case here; he wasn't a threat. No qualified immunity.
22. Allegations: Georgia political candidate runs for city commission on a platform of "replac[ing] Caucasian employees with African Americans," including, specifically, the white city manager. He's elected, warns the city manager he'll be replaced with a Black city manager, and encourages the other Black commissioners to vote to do just that. The fired city manager is then told he can't return to his former position as finance director because he "did not look like" them. Eleventh Circuit: "The question for us is whether those allegations permit the inference that the City Commission fired McCarthy because he is white."
23. There are two things your summarist knows to be true: Defamation lawsuits draw more attention to the alleged defamation, and nobody is ever going to start referring to Twitter as X. Relatedly, the Eleventh Circuit (per curiam) holds that former Chief Justice of the Alabama Supreme Court Roy Moore cannot sue over tweets calling him a pedophile, which were inspired by multiple news reports of women who accused Moore of groping them while they were underage.
24. Each week, the federal courts of appeals decide cases with complicated facts featuring lurid tales of murder, mayhem, and misadventure. So when the Eleventh Circuit starts its opinion with "Warning: This is going to get messy," you know what you're going to get: an extended discussion of class-certification standards under Rule 23.
25. Defendant: Google had to pull my account information in response to gov't's "geofence" warrant, and I want all the evidence suppressed. Eleventh Circuit: Maybe it did. But the only account information Google actually turned over in response to that warrant belonged to your girlfriend's daughter, so you don't have standing to object.
26. Georgia prison officers invasively strip-search a woman visiting her inmate husband for seemingly no reason, violating prison policy in the process and dissembling about the incident afterwards. Woman sues under the Fourth Amendment, and officers assert qualified immunity. Eleventh Circuit: Strip searches are "embarrassing and humiliating," the Constitution requires that prison visitors can be subjected to them only if there is reasonable suspicion and the search is not more intrusive than necessary, and most circuits had held as much when this search occurred. But our circuit doesn't allow out-of-circuit precedent to clearly establish the law (or care that prison policy was violated), so the officers get qualified immunity. Concurrence 1: We should take this case en banc because our refusal to consider an out-of-circuit consensus goes against Supreme Court authority. Concurrence 2: K. Newsom, Considerations on Qualified Immunity, 44 11th Cir. L. Rev. 211 (2024).
27. One of the great joys of civil procedure is that you can, as in this Eleventh Circuit case, recite truly bonkers allegations about secret affairs with appellate judges and quid-pro-quo arrangements to spring criminal defendants and then just say there's no need to bother with any of it because the whole thing is barred by the Rooker-Feldman doctrine anyway.
28. Wayne County, Mich. sheriff's deputies seek to forfeit woman's car based on allegation that her passenger might have had drugs in the car at some previous time (no drugs were found). Michigan Supreme Court (over a dissent): To be forfeitable under the statute, a car has to be used to transport drugs for their sale or receipt. That didn't happen, so no forfeiture. (This is an IJ case.)

New case! In 2009, officials tried to install a new sewer line on Melisa and Michael Robinson's property, a small mobile home community they own and operate in Okay, Oklahoma. But they made a hash of it! They didn't grade the pipes properly, and sewage backed up into the homes. They hit an underground power line, killing the power and blowing out tenants' refrigerators and air conditioners. Moreover, officials never bothered to obtain the necessary easement or even notify the Robinsons before they started digging. All of which, after 13 years of litigation, led to the Oklahoma Supreme Court (and a jury) declaring the whole thing to be an unconstitutional taking. The Robinsons are now owed over $200k, but—and here's where IJ comes in—the town says it does not have to pay and that court-ordered judgments are merely unenforceable IOUs. Fiddlesticks! The Fifth Amendment is made of sterner stuff, and the gov't must pay for what it takes. Click here to learn more.

The post Short Circuit: A Roundup of Recent Federal Court Decisions appeared first on Reason.com.

Democrats in Congress have reintroduced a bill that would revive the ability to sue federal law enforcement officers for constitutional violations like excessive force, following a series of Supreme Court decisions that have made it practically impossible to do so.

Sen. Sheldon Whitehouse (D–R.I.) and Reps. Hank Johnson (D–Ga.) and Jamie Raskin (D–Md.) reintroduced the Bivens Act in the Senate and House, respectively, this week. The legislation would amend the Civil Rights Act of 1871—a federal statute that allows people to sue the government for civil rights violations—to include federal officials acting under the color of law, as well as state and local officials.

"Public officials at all levels of government, including law enforcement, should have a clear, fair standard of accountability when they break the law," Whitehouse said in a press release. "Our Bivens Act would end the confusing judicial precedent that for too long has prevented victims from holding federal officials accountable and securing compensation for constitutional violations."

In 1971, the Supreme Court ruled in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics that federal agents may be sued when they violate someone's rights. But subsequent Supreme Court rulings over the years have steadily narrowed the scope of so-called Bivens claims to the point where it's a dead letter.

In the most recent case, Egbert v. Boule, the Supreme Court ruled in 2022 that a bed-and-breakfast owner could not sue a Border Patrol agent who had allegedly assaulted him and then retaliated after he complained. Reason's Damon Root summarized the case: 

At issue were the actions of a border patrol agent who sought to question one of the guests at a Washington state bed-and-breakfast about the guest's immigration status. When owner Robert Boule told the agent, Erik Egbert, to leave his property, Egbert allegedly assaulted Boule. Then, when Boule complained about the alleged assault to the agent's superiors, Egbert allegedly retaliated by asking the IRS to investigate Boule, who was audited.

The Court ruled 6–3 that Boule could not bring a claim against Egbert for excessive force or First Amendment retaliation. 

That same term, the Court declined to hear petitions involving cases where a St. Paul police officer invented a fake sex-trafficking ring and jailed a teenage girl for two years on trumped-up charges and where a Department of Homeland Security agent allegedly tried to kill a man because of an argument involving his son.

As Reason's Billy Binion wrote at the time, "A federal badge will now serve as an impenetrable shield against civil liability for violating the same laws agents are charged with upholding."

That's not just the opinion of some whacky libertarians either. Federal Judge Don Willett complained in a 2021 opinion that the Supreme Court has gutted Bivens to the extent that "if you wear a federal badge, you can inflict excessive force on someone with little fear of liability."

The Bivens Act is supported by numerous civil rights and watchdog groups, including the American Civil Liberties Union, the Drug Policy Alliance, and the Project on Government Oversight.

The post New Bill Would Revive the Right To Sue Federal Cops for Constitutional Violations appeared first on Reason.com.

Less than a month after the attempted assassination of former President Donald Trump, the agency that failed to protect him from harm may get a bigger budget.

On July 13, when Thomas Matthew Crooks shot and wounded Trump during a campaign rally in Pennsylvania, Secret Service agents sprang into action, heroically shielding him from further harm and escorting him from the stage.

But subsequent reporting revealed that the incident was entirely preventable: Rally attendees alerted law enforcement to the presence of a suspicious person more than an hour before he started shooting, and they later saw him climbing on top of a building with a gun. "Trump was on stage for around 10 minutes between the moment Crooks was spotted on the roof with a gun and the moment he fired his first shot," the BBC reported.

After a particularly disastrous appearance before the House Oversight Committee, Secret Service Director Kimberly Cheatle resigned. Appearing before two Senate committees this week, acting Director Ronald Rowe Jr. testified that he was "ashamed" of the agency's failure.

Almost immediately after the shooting, a narrative emerged that the lapse owed to a lack of resources.

At a July 15 White House press briefing, a reporter asked Secretary Alejandro Mayorkas of the Department of Homeland Security—which oversees the Secret Service—"Is the Secret Service stretched too thin?"

"The Secret Service in—in times like this calls upon other resources and capabilities to handle a—a campaign of this magnitude," Mayorkas replied. "And I do intend to speak with members of the Hill with respect to the resources that we need."

"Our agency needs to be adequately resourced in order to serve our current mission requirements and to anticipate future requirements," Cheatle noted in her opening testimony before the House Oversight Committee on July 22. "As of today, the Secret Service has just over 8,000 employees," she told Rep. Stephen Lynch (D–Mass.). "We are still striving toward a number of 9,500 employees, approximately, in order to be able to meet future and emerging needs."

In a letter to Rowe this week, Sens. Chris Murphy (D–Conn.) and Katie Britt (R–Ala.)—respectively the chairman and the ranking member of the Senate Appropriations Subcommittee on Homeland Security—sought to understand the agency's financial needs as the subcommittee drafts an appropriations bill.

"Congress provided more than $190 million to the Secret Service in Fiscal Year 2024, specifically for protection requirements related to the 2024 presidential campaign, plus an additional $22 million above President Biden's budget request for protection-related travel costs," the senators wrote. "Despite this increase, in mid-June, prior to the attempted assassination, the Secret Service submitted a reprogramming notification to our subcommittee detailing its intent to shift $19 million to cover a shortfall for protection-related travel funding." This was in addition to the imminent addition of two vice presidential candidates and their families to the agency's protective purview, plus independent presidential candidate Robert F. Kennedy Jr., whom President Joe Biden added to the list after the shooting.

"As a result, the Secret Service is assuming new protection costs related to the campaign at a time when it already appears to lack sufficient resources to fulfill its protective mission," the senators continue.

But it's not at all clear that a lack of resources was the issue: The agency's budget in real numbers grew 55 percent over the last decade, to $3.62 billion, and its work force grew 33 percent from 2002 to 2019.

It is possible the agency may be stretched thin in its duties: The Secret Service is tasked by law with protecting not only the president, vice president, and their immediate families, but also former presidents, vice presidents, and their spouses for life, and their children until age 16. They also protect visiting heads of state and "other distinguished foreign visitors to the United States and official representatives of the United States performing special missions abroad when the President directs that such protection be provided."

"The Secret Service currently protects 36 individuals on a daily basis, as well as world leaders who visit the United States," Cheatle told the House Oversight Committee.

But that's not the agency's only job: Agents are tasked with investigating a number of financial crimes like counterfeiting, money laundering, and identity theft, as well as ransomware attacks, botnets, and "online sexual exploitation and abuse by predators and other criminals, sometimes for financial gain."

It's possible that the Secret Service is doing too many jobs for the amount of resources it enjoys. Perhaps many of its financial and investigative tasks should be shifted to the U.S. Treasury Department, which is where the Secret Service originated before Congress added presidential protection to its plate in 1901. The numbers demonstrate that the agency's problem is not purely financial.

But it's also worth keeping in mind that government agencies, by their nature, do too much, too poorly, and for too much money. The Secret Service, for all the nobility of its mission, is no exception.

The post Secret Service May Get Even More Money After Failing To Protect Trump appeared first on Reason.com.