Iran's parliament is set to pass a bill regulating how men dress in public, banning apparel that "is against public modesty, such as clothing that does not cover a part of the body lower than the chest or higher than the ankle." But the Basij, the nation's morality police, is already enforcing the law. They have been beating and arresting men caught wearing shorts in public, at a time when temperatures reaching 45° Celsius (113° Fahrenheit) and frequent power outages have led many men to wear shorts outside.

The post Brickbat: Who Wears Short Shorts? appeared first on Reason.com.

In her first economic policy speech as the 2024 Democratic presidential nominee, Kamala Harris rightly criticized Donald Trump for favoring steep tariffs, saying her Republican opponent "wants to impose what is, in effect, a national sales tax on everyday products and basic necessities that we import from other countries." But in the same speech, Harris pitched a half-baked idea that is just as economically dubious, promising to crack down on "price gouging" by the grocery industry.

That proposal is so misguided that it provoked undisguised skepticism from mainstream news outlets such as CNN, the Associated Press, The New York Times, and The Washington Post, along with criticism by Democratic economists. It showed that Harris joins Trump in pushing populist prescriptions that would hurt consumers in the name of sticking it to supposed economic villains.

"If your opponent claims you're a 'communist,'" Post columnist Catherine Rampell suggested, "maybe don't start with an economic agenda that can (accurately) be labeled as federal price controls." Harvard economist Jason Furman, who chaired President Barack Obama's Council of Economic Advisers, was equally scathing.

"This is not sensible policy, and I think the biggest hope is that it ends up being a lot of rhetoric and no reality," Furman told the Times. "There's no upside here, and there is some downside."

That downside stems from any attempt to override market signals by dictating prices. High prices allocate goods to consumers who derive the greatest value from them, encourage producers to expand supply, and spur competition that helps bring prices down.

Without those signals, you get hoarding and shortages. This is not some airy-fairy theory; it reflects bitter experience since ancient times with interventions like the one Harris proposes.

Consider what happened when President Richard Nixon imposed wage and price controls in the 1970s. "Ranchers stopped shipping their cattle to the market, farmers drowned their chickens, and consumers emptied the shelves of supermarkets," Daniel Yergin and Joseph Stanislaw note in their 1998 book on the rise of free markets.

Or consider what happened more recently with eggs. Thanks to avian flu, Furman noted, "egg prices went up last year" because "there weren't as many eggs," but the high prices encouraged "more egg production." If federal regulators had tried to suppress egg prices, they would have short-circuited that market response.

Harris, of course, says she would target only unjustified price increases, the kind that amount to "illegal price gouging" by "opportunistic companies." But as she emphasizes, there currently is no such thing under federal law, and any attempt to define it would be plagued by subjectivity and a lack of relevant knowledge.

The fact that Harris pins the sharp grocery price inflation of recent years on corporate greed suggests that her judgment about such matters cannot be trusted. Economists generally rate other factors—including the war in Ukraine as well as pandemic-related supply disruptions, shifts in consumer demand, and stimulus spending—as much more important.

High profits, in any event, are another important signal that encourages investment and competition. By forbidding "excessive profits," Harris' proposed price policing would undermine the motivation they provide.

According to the most recent numbers, the annual inflation rate dropped below 3 percent as of July. With inflation cooling, this might seem like a strange time for Harris to resuscitate an idea that was already proving disastrous thousands of years ago. But as the Times notes, her message "polls well with swing voters."

The broad tariffs that Trump favors, which Harris condemns as "a national sales tax" that would "devastate Americans," also poll well in the abstract. But they are popular only until voters consider the consequences.

In a recent Cato Institute survey, for example, 62 percent of respondents favored a tariff on "imported blue jeans," but that number plummeted when they were asked to imagine the resulting price increases. Harris likewise is counting on voters who like what she says but do not contemplate what it would mean in practice.

© Copyright 2024 by Creators Syndicate Inc.

The post Kamala Harris' 'Price Gouging' Ban: A New Idea That Has Failed for Thousands of Years appeared first on Reason.com.

From Free Speech Coalition, Inc. v. Rokita, decided Friday by Judges Frank Easterbrook and Amy St. Eve:

Indiana seeks a stay of the preliminary injunction that a district court entered preventing the enforcement of Ind. Code § 24-4-23, which requires web sites to limit minors' access to certain sexual materials.

Indiana's statute is functionally identical to one adopted by Texas. That statute has been held to be valid [by the Fifth Circuit, though the Supreme Court has agreed to hear the case]. Free Speech Coalition, Inc., which is a plaintiff in both the Indiana case and the Texas case, asked the Supreme Court to prevent enforcement of the Texas statute while that litigation continued. That application was denied, so the Texas statute is now in force.

We do not see any adequate reason why Texas's law may be enforced pending the [Supreme Court's] decision on the merits in Free Speech Coalition v. Paxton, while Indiana's may not be enforced. Functionally identical statutes should be treated the same while the Supreme Court considers the matter. Accordingly, Indiana's request for a stay is granted. The stay will remain in effect until the Supreme Court has issued its mandate in Free Speech Coalition v. Paxton.

Briefing in this appeal will be deferred until the Supreme Court has decided Free Speech Coalition v. Paxton.…

But Judge Ilana Rovner concurred in part (as to deferring briefing) and dissented in part (as to the stay of the trial court injunction):

I can certainly see the value in terms of judicial efficiency and deference in the approach taken by the majority here, and it has an intuitive appeal. Because of the opposite procedural postures of the two cases, however, granting the stay here upends the status quo and imposes a burden on the plaintiffs that cannot be justified by the Supreme Court's summary denial of the stay here.

The Fifth Circuit in Paxton held that the age-verification component of the statute was constitutional, and the plaintiffs did not seek a stay in that court. Therefore, the "status quo" at the time the Supreme Court was presented with the stay motion was that the statute was not enjoined and was being enforced—and the plaintiffs therefore were already subjected to its burdens. The Supreme Court's summary decision without any comment or dissent merely left the case as it found it, leaving the parties no worse off than they had been.

Here, in contrast, the district court held that the statute was unconstitutional, and granted a preliminary injunction, enjoining it on First Amendment grounds and denying the motion to stay that injunction. The result, of course, is that the Indiana statute has never been in force, unlike the Texas statute. We have not yet had the opportunity to consider the appeal on the merits, and therefore, the current state in our case is that the plaintiffs have not been required to comply with the burdensome requirements of the Act. If we were to alter that status quo, we should do so only by considering the stay on the merits and determining that a stay is appropriate under that analysis. Otherwise, we impose a cost on the businesses and individuals that have to comply with the Act, and curtail their First Amendment rights, based solely on an unreasoned stay denial even though the only court decision as to this Indiana statute held that the burden is unconstitutional. And such a precedent could have drastic consequences in a future case where the economic burden of a statute was even greater, by subjecting the parties to that burden while awaiting the Supreme Court's decision without ever considering the relative harms to the parties.

If we reached that conclusion after a careful analysis of the stay motion on the merits, the result would be justified. But to reach it for parity alone, when the cases are presented in opposite postures, accords too much weight to a one-sentence denial of a stay by the Supreme Court, and that is too thin a reed to support imposing what, in our case, have been deemed unconstitutional burdens. We should impose such burdens only after considering the standards appropriate to a stay appeal on the merits: the likelihood of success on the merits and existence of irreparable injury to the moving party, the injury to the other party if a stay is granted, and the public interest. The grant of a stay without proceeding through that analysis unjustifiably absolves the moving party of its burden of proof in its quest to upend the district court's denial of that stay.

A denial of a stay by the Supreme Court, which might turn on the relative harms to the parties and not the merits of the legal claim, is not a decision on the merits of the case, nor is a grant of certiorari. By granting a stay of the district court's injunction here, and allowing enforcement of a law deemed unconstitutional by the district court, we give the Supreme Court's stay denial an impact beyond its precedential value. One could as easily argue that the Court's grant of certiorari signals a concern with the Fifth Circuit's determination of constitutionality, and favors leaving the district court's determination in place. Either approach is problematic, because neither the summary denial of the stay nor the grant of certiorari is a decision on the merits, nor should they be treated as such.

Although I do not support granting the motion, I am sympathetic to the argument that sometimes the most prudent and respectful course is to hold an appeal in abeyance until the Supreme Court's ruling, particularly in a situation such as the one before us involving functionally-identical statutes. But a true abeyance here would be to freeze the proceedings in this case as is, retaining the status quo until the Supreme Court issues its decision. Holding proceedings in abeyance is also supportable, given that the grant of certiorari means that the likelihood of success component of the stay motion is up in the air. It is a legally-supportable approach that adequately defers to the Supreme Court's decision to consider the merits of the underlying issue here.

For that reason, if we choose not to consider the motion before us on the merits, the more supportable approach would be to suspend proceedings until the Supreme Court issues its ruling, as we have done numerous times where a pending Supreme Court case may be dispositive. Summarily granting the stay and upending the status quo, and allowing a statute that the district court has determined to be unconstitutional to take effect without holding the moving party to any burden of proof, should not be an option….

The post Interesting Stay Dispute in Seventh Circuit Minors'-Access-to-Porn Case appeared first on Reason.com.

This week's featured article is "The Fragile Generation" by Lenore Skenazy and Jonathan Haidt, originally published in the December 2017 print issue.

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</I>: The Fragile Generation appeared first on Reason.com.

Last week, the Trump campaign falsely asserted that "homicides are skyrocketing in American cities under Kamala Harris." On Tuesday, the campaign offered a more nuanced and sophisticated critique of crime data cited by the Democratic presidential nominee. But it still does not support the earlier claim, which is inconsistent with numbers from several sources.

A "memorandum" headlined "Joe Biden's Lies on Crime" (a title that makes you wonder whether Trump forgot who his opponent is) notes that the FBI changed its crime data collection methods in 2021, switching from the old Uniform Crime Reporting (UCR) program to the new National Incident-Based Reporting System (NIBRS). The transition, which was aimed at generating "new and better data," resulted in a big decline in the number of participating law enforcement agencies. According to the Bureau of Justice Statistics, the share of the population covered by participating agencies fell from the previous norm of about 95 percent to just 65 percent in 2021.

"The FBI's website reveals that the Q1 2024 data Joe Biden is citing comes from just 71% of the nation's law enforcement agencies," the Trump campaign says. "That means crime data from nearly one third of jurisdictions is missing." The overall NIBRS participation rate, which is relevant in assessing the FBI's final estimates for any given year, is higher: The FBI says 15,724 of 18,884 eligible agencies, or 83 percent, submitted data for 2022. The overall population coverage rate had risen to 85 percent by 2023. Still, the decline in participation since 2020 is a widely recognized problem.

The Trump campaign notes that "the FBI attempts to 'estimate' crime data for non-reporting agencies using a 'statistical weight' from reporting agencies similar in size and type"—a "practice of estimating crime numbers for agencies with missing data" that "has been going on since the 1960s." But historically, the missing data represented around 5 percent of the population, compared to 15 percent in 2023. A bigger gap magnifies the potential for error.

That is a perfectly reasonable point. But does it mean that homicides are, in fact, "skyrocketing"? No.

Nationwide, the FBI's preliminary numbers indicate, murders fell by 26 percent in the first quarter of this year compared to the same period last year. But other sources also report that homicides are falling this year, albeit by smaller percentages.

Based on a sample of 277 cities, AH Datalytics reports a 17.3 percent drop in murders so far this year, which is very large compared to historical trends. Most of these numbers come from "official" sources, meaning they were reported by local police departments or municipal governments. Some were compiled by state governments, and some came from local news outlets that track crime.

The Council on Criminal Justice (CCJ), based on data from 39 cities for the first half of 2024, reports that "most violent crimes," including homicide, "are at or below levels seen in 2019," the year before a huge spike in murders (which, as Trump wants us to forget, happened during his administration). The CCJ says the drop in homicides through June in "the 29 study cities providing data for that crime" was 13 percent.

According to a report from the Major Cities Chiefs Association (MCCA) that covers 69 cities during the same period, the total number of homicides fell by 17.4 percent. That is strikingly similar to the AH Datalytics estimate, although the latter analysis covers a lot more cities—including New York, which was not part of the MCCA sample but saw a 10 percent drop in homicides, according to AH Datalytics.

Instead of trying to defend its recent claim that "homicides are skyrocketing," the Trump campaign widens the focus, arguing that the National Crime Victimization Survey (NCVS), which includes crimes that are not reported to police, provides a more accurate picture of what is happening. The NCVS is not relevant in assessing homicide trends, since it does not cover homicides—the most serious violent crime and the one that is hardest to miss. And although the Trump campaign's criticism of the FBI numbers focuses on what happened in the first quarter of 2024, we do not yet have NCVS data for 2023, let alone this year.

The NCVS, like the FBI's system, has both strengths and weaknesses. But the Trump campaign deems it "by far the most credible and reliable barometer of crime nationwide." The NCVS, it says, "reveals that between 2020 and 2022 (the most recent year for which data is available), there was a 43% increase in violent crime, 58% increase in rape, 89% increase in aggravated assault, and a 56% increase in robbery."

Although these numbers omit 2023 and 2024, the Trump campaign wants us to believe they tell the true story of crime during the Biden administration. But the divergence between the NCVS and FBI numbers, especially in 2022, presents a puzzle that cannot be resolved simply by observing that the NCVS includes unreported crimes.

In 2002, when the FBI reported an overall 2 percent decline in violent crime, the NCVS results indicated a whopping 75 percent increase. Again, the latter number does not include homicide, which according to the FBI fell by 7 percent in 2022. But it does include respondents' reports of rape, which were up 58 percent, compared to the 6 percent drop estimated by the FBI; robbery, which rose by 47 percent according to the NCVS but only 1 percent according to the FBI; and aggravated assault, which more than doubled according to the survey but fell by 2 percent in the FBI's tally.

"Both too much and too little can be made of the divergence between the UCR and NCVS violent crime rates in 2022," the CCJ notes. "Divergent change in a single year should be viewed in the context of the similar long-term trends in the two indicators—and both sources show an appreciable decline in violent crime since the early 1990s." Still, "changes in the UCR and NCVS violent crime rates have rarely differed as much as they did" in 2022.

The 2021 changes in the FBI's reporting system and the concomitant decline in participation do not seem relevant here, since the participation rate was substantially higher in 2022 than it was in 2021. But if crime victims are increasingly disinclined to contact the police, that could help explain the striking 2022 divergence between the NCVS results and the FBI numbers.

According to the NCVS, the CCJ notes, "approximately 52% of serious violent crimes were reported to the police in 2021 and 48% in 2022, a relative decrease of nearly 8%. The decline in reporting crimes to the police was particularly large for aggravated assault, falling from 61% in 2021 to 50% in 2022, a decrease of 18%." But these changes in reporting behavior do not come close to fully accounting for the enormous differences between the NCVS and UCR numbers for 2022.

Beyond the difference between reported and unreported crimes, the NCVS and the FBI's system use different methods and measure somewhat different things. "As a household-based survey," the CCJ notes, "the NCVS does not include people who are homeless or those who live in institutions such as prisons, jails, and nursing homes. It also excludes crimes of violence against persons under 12 years of age. If persons included in the survey have experienced changes in violence that differ from the changes experienced by those excluded from the survey, that could help account for some of the divergence in violence rates."

The Bureau of Justice Statistics notes other possibly relevant differences between the two sources. For example, "the NCVS includes, but the [FBI system] excludes, attempted robberies, simple assault, [and] verbal threats of crime." The FBI system "includes, but the NCVS excludes, homicide, arson, commercial crimes, and human trafficking." The two sources also use different definitions of some crimes.

Another possible factor: While the FBI's 2022 numbers covered the calendar year, the 2022 NCVS asked about crimes experienced from July 1, 2021, through November 30, 2022. "Since the NCVS shows an increase in violent crime," The Marshall Project's Weihua Li and Jamiles Lartey suggest, "it's potentially because violent crime rates were higher in the latter part of 2021." They also note that "the victimization survey is historically much more volatile from one year to the next," suggesting "it may be influenced by statistical noise."

The Trump campaign describes the FBI's quarterly numbers as "garbage" and "fake statistics." But notwithstanding the preliminary nature of those numbers and the challenges associated with the transition to the new reporting system, they are broadly consistent, in direction if not magnitude, with what other sources indicate.

"Right now," Li and Lartey reported in June, "every source points to a decrease in violent crime." They quoted University of Miami criminologist Alex Piquero, an adviser to the CCJ Crime Trends Working Group, who said "the FBI's Q1 2024 data is incomplete, not inaccurate," adding: "There's no fudging of the numbers, and the drop is real. The question, of course, is how big that drop will be, and then how big that drop will be across crime types. That's the thing that we just don't fully grasp yet."

The post Trump's New, More Sophisticated Take on Crime Still Does Not Show 'Homicides Are Skyrocketing' appeared first on Reason.com.

Unsurprisingly, as the reigning World Cup champions, soccer is deeply embedded in Argentina's national identity. Players on the national team are praised as heroes by everyone, from die-hard fans to casual observers. Their trophies bring joy and a sense of triumph to a country that has seen much division and gloom in recent decades.

Sadly, recent victories could be the last blaze of a dying fire. Soccer (or as we call it, fútbol) in Argentina is in decline, exploited by nefarious interests—but President Javier Milei has a plan.

Until recently, domestic soccer clubs in Argentina had to be operated as nonprofits. An executive branch decree changed that, allowing clubs to become publicly traded companies. The change may spur lifesaving investment into Argentine soccer.

For fans of Argentina's national team and domestic league, this is good news.

Consider how many players are leaving Argentina to play elsewhere. In 2022, 5,000 Argentines were playing abroad, most of whom were promising players under the age of 20. Even among the 26 players on the World Cup-winning roster, only one came from a club in the Argentine league. The Argentine Football Association (AFA) is worried that players who start their careers overseas will choose not to represent their national team in international competitions. Even Lionel Messi, a dual national, was tempted to play for the Spanish national team before choosing to play for Argentina. AFA lives in constant fear of having a future world champion slip through their fingers.

What's causing this exodus of talent? While part of it is Argentina's general economic malaise, some, including Spanish La Liga President Javier Tebas, point a finger at AFA's narrow-minded refusal to allow private investment in the national soccer market. Tebas has said the Argentine team won the 2022 World Cup "despite AFA" because their players "were forged in European clubs."

Milei's reforms mean international companies could buy and sell teams, or invest in Argentina's striving clubs. An injection of foreign capital would be a boon not just to the clubs who'd be able to improve their capabilities and keep talented players at home, but also to the Argentine economy overall, as clubs expand and create more jobs with their newfound capital.

AFA leaders and some major teams denounced the reforms as a "privatization of football"—and if you know how the clubs currently work, it's easy to understand their resistance. 

In Argentina, soccer clubs are more than just sports teams. A club is like a church, a provider of all manner of cultural and educational services, a place for communities to share, for families to enroll their children and invest in their future—every young player's dream is to go pro and pay back his parents' sacrifice. While the clubs are already private nonprofits—an organizational model they're very defensive about—in reality, they are run by politicians, celebrities, and businessmen who use them to promote their public image. They keep governance opaque, convoluted, and unaccountable, cementing their power by making deals with barra bravas, powerful hooligan organizations that handle their illegal activities and intimidate opponents into silence—both within the clubs and in electoral politics.

Revenue from the domestic soccer league, such as TV rights money, is dispensed in a pyramid scheme with AFA President Claudio Tapia at the top, doling out favors to keep the clubs economically dependent. About 97 percent of clubs have, at some point, been on the brink of bankruptcy. This causes a vicious cycle: Teams in the league can't afford to keep promising players, who leave for foreign teams with deeper pockets, so the teams perform worse and earn less revenue.

In the late 1990s, Racing Club, one of the historic "Big Five" clubs, went bankrupt and was nearly liquidated. AFA authorized a special rescue plan that allowed insolvent clubs to contract private firms as management in exchange for financial salvage, copying previous experiences of successful entrepreneurial partnerships. Despite the plan's limited scope and the familiar cry of "veiled privatization," it performed so well that several clubs started contracting out their assets and are now faring consistently better than the rest. Meanwhile, fans remain involved by exercising oversight over contractors.

In a microcosm of national politics, mafiosos and oligarchs use populist rhetoric to entrench themselves in power, and then call the private sector to bail them out when reality catches up. In soccer, it's catching up again. Investment is still limited, the player pool is shrinking, clubs are chronically indebted and their services are becoming impoverished and exclusionary. Meanwhile, they're still run by a powerful few but lack transparency or efficiency. A country that's practically synonymous with fútbol should be attracting money and talent from all over the world, not scaring it away. A few conglomerates have expressed interest in Milei's reform, but he'll have to get past attempts at judicial obstruction and silencing of internal dissent by the AFA establishment.

Argentina is the birthplace of many stars in soccer history, but its clubs are suffering from economic stagnation. The private sector can help Argentines reclaim their clubs as social spaces and as points of national pride. Milei's reforms are an opportunity for soccer to become part of the nation's economic recovery. The profit motive, social ethics, and political will of those who love the sport can lead to even more glory.

The post In Argentina, the Private Sector May Save Soccer appeared first on Reason.com.

[A.] From today's Pennsylvania Supreme Court majority opinion in Oberholzer v. Galapo, written by Justice Kevin Dougherty, joined by Chief Justice Debra Todd and Justices Christine Donohue and Sallie Updyke Mundy:

Dr. Simon and Toby Galapo (appellants) own a home in Abington Township, Montgomery County, the rear yard of which borders the property of Frederick and Denise Oberholzer (appellees). Although the properties are separated by a creek, low-lying shrubs, and some tall trees, the houses and yards remain visible to one another. In November 2014, a brewing feud between the neighbors over landscaping issues reached a boiling point after Dr. Galapo confronted Mr. Oberholzer about a resurveyed property line and Mrs. Oberholzer responded by calling him a "fucking Jew."

This prompted the Galapos in June 2015 to erect the first of many signs primarily displaying anti-hate and anti-racist messages "along the back tree-line directly abutting [the Oberholzers'] property line, pointed directly at [the Oberholzers'] house, and in direct sight of [other] neighbors' houses." All told, the Galapos posted twenty-three signs over a years-long span, during which the neighbors continued to quarrel over other minor nuisances….

The signs included, among others, "No Place 4 Racism," "Hitler Eichmann Racists," "Racists: the true enemies of FREEDOM," and twenty more. The Oberholzers sued, claiming the Galapos' posting of the signs constituted "(1) private nuisance; (2) intrusion upon seclusion; (3) defamation – libel and slander; (4) publicly placing the Oberholzers in false light; and (5) intentional infliction of emotional distress." The trial court ordered the Galapos to move or reorient the signs so that they "be positioned in such a way that they do not directly face and target [the Oberholzers'] property: the fronts of the signs (lettering, etc.) are not to be visible to [the Oberholzers] nor face in the direction of [their] home."

Today, the Pennsylvania Supreme Court held the injunction violated the Pennsylvania Constitution's free speech clause. The Court applied its 1978 precedent in Willing v. Mazzacone, which generally suggested that injunctions against speech (in that case, against libel) are unconstitutional prior restraint, and held that it applied to this situation as well. Recent court decisions throughout the country have mostly concluded that the federal First Amendment doesn't prohibit permanent injunctions against speech found to be constitutionally unprotected, for instance because it is libelous. But state courts are entitled to read their state constitutions as more speech-protective than the federal Constitution. A few excerpts from the 57-page opinion:

[1.]

The fact that one purpose of the Galapos' signs was to engage in a "personal protest" against the Oberholzers does not alter this conclusion [that the speech cannot be enjoined]…. Article I, Section 7 [of the Pennsylvania Constitution] "specifically affirms the 'invaluable right' to the free communication of thoughts and opinions, and the right of 'every citizen' to 'speak freely' on 'any subject' so long as that liberty is not abused." Those sweeping terms necessarily include the right to use speech as a means of (peaceful) protest.

[2.] For purposes of this categorical protection,

What matters is whether the "speech is of public or private concern, as determined by all the circumstances of the case." "Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public." Further, the "arguably inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern."

And the speech here was on a matter of public concern, even though it stemmed from a private dispute:

Mrs. Oberholzer admitted to making an offensive, anti-Semitic remark to Dr. Galapo, which some might argue is "part of a broader, societal trend of hate and violence toward Jewish people." In response, the Galapos erected on their own lawn stationary signs decrying hatred, anti-Semitism, and racism. We have no hesitation in finding "[t]hese are concerns of general interest to the Jewish community and the wider public[.]"

[3.] Injunctions might be proper when "substantial privacy interests are being invaded in an essentially intolerable manner," but that high threshold was not met here:

The Galapos' signs are stationed exclusively on their own property and they lack any coercive or other element that might implicate the Oberholzers' privacy interests. Nor do the signs present any type of actionable, non-speech-based nuisance, like excessive illumination or loud noises. The signs are just that: signs. All homeowners at one point or another are forced to gaze upon signs they may not like on their neighbors' property—be it ones that champion a political candidate, advocate for a cause, or simply express support or disagreement with some issue. If a single judge could suppress such speech any time an offended viewer invoked a generalized right to residential privacy, without proving more—specifically, that substantial privacy interests are being invaded in an essentially intolerable manner—it would mark the end to residential expression; after all, we cannot ignore that the Galapos have property rights too….

[W]e do not doubt the permanent injunction judge's finding that the Galapos' signs "severely and negatively impact the [Oberholzers'] well-being, tranquility, and quiet enjoyment of their home." That finding, however, is not equivalent to a determination "that substantial privacy interests are being invaded in an essentially intolerable manner[,]"and the record does not support such a conclusion in any event.

[4.] Nor does it matter that the injunction "only ordered the Galapos to turn their signs around and make them opaque rather than take them down entirely": "By preventing the Galapos from directing their message to one of their intended audiences—the Oberholzers—the court violated the Galapos' speech rights."

[B.] Justice Kevin Brobson dissented, arguing that content-neutral injunctions aimed at preventing private nuisances caused by residential speech are constitutional; here's an excerpt (though this opinion is also quite long):

[1.]

[T]he signs were not directed toward the public. Instead, the Galapos erected the signs in their back yard and directed them strictly toward the Oberholzers—i.e., one private home—while placing zero signs in their front yard for the public to see. Additionally, if the Galapos intended to reach a broader audience with the signs, there would be no need for the Galapos to appeal from the trial court's order entering the Injunction because, under the Injunction's limitations, the signs were still visible to the neighbors, just not the Oberholzers. The nail in the coffin that cements these points is Dr. Galapo's testimony that it was irrelevant whether anyone other than the Oberholzers saw the signs. Thus, the foregoing makes clear that the Galapos' signs were targeted speech designed to disrupt the quiet enjoyment of the Oberholzers' home….

[2.]

I fail to see how a severe and negative impact upon the well-being, tranquility, and quiet enjoyment of the Oberholzers' home is insufficient to warrant injunctive relief. Surely, the quiet enjoyment of the home is a "substantial privacy interest." The Majority also offers no explanation for how a severe and negative impact on that interest has any meaningful distinction from an "intolerable invasion" of privacy.

[C.] Justice David Wecht dissented as well, also in a long opinion. A few excerpts:

[1.]

I conclude ultimately that the injunction here is not a prior restraint and does not violate the no-injunction rule, a rule that in any event does not exist in Pennsylvania, and one that would not apply to this case even if it did exist here. Contrary to the Majority's analysis, equity courts possess the authority to issue certain kinds of narrow injunctions that restrict speech so long as those injunctions can withstand either intermediate scrutiny (for content-neutral injunctions) or strict scrutiny (for content-based injunctions). Because the instant injunction survives application of either standard, it should be upheld.

[2.]

At the heart of the prior restraint doctrine is the idea that "a free society prefers to punish the few who abuse rights of speech after they break the law [rather] than to throttle them and all others beforehand." Narrowly tailored permanent injunctions do not throttle speakers before they break the law. Rather, they threaten subsequent punishment for repeat lawbreaking.

[3.]

[T]he injunction here also is extremely narrowly tailored to remedy the nuisance without burdening any more of the Galapos' speech than is absolutely necessary. The injunction does not prevent the Galapos from expressing—to the Oberholzers or to anyone else—any of the messages that appear on any of the twenty-three signs. The injunction merely prohibits the Galapos from expressing those views in the exact manner that they had been employing—i.e., the tortious manner, which consisted of a years-long performance involving a rotating assortment of nearly two dozen signs placed along the property line so that they would be visible from inside the Oberholzers' home.

Even with the injunction in place, the Galapos remain free to communicate the messages featured on their signs to the Oberholzers in any other way that they please. They can move the signs to their front yard. They can hang fliers on telephone poles in the neighborhood. They can place bumper stickers on their cars. They can post the messages on a social media application for neighbors. They could even stand on the sidewalk in front of the Oberholzers' home holding the signs. I could go on. The critical point here is that the present injunction is laser-targeted to remedy the nuisance while preserving the Galapos' right to express their thoughts and ideas in a non-tortious manner….

Furthermore, even assuming that the Majority is correct that the Galapos' aim here was at least partially to educate the "local community" on "the consequences of hatred and racism," … [t]he injunction has no impact at all on the Galapos' freedom to speak to the community about anti-Jewish hatred in any of the usual ways that many of us do [citing several articles about anti-Semitism, including by Justice Wecht himself].

The post Court Reverses Injunction Against Anti-Anti-Semitic Speech Targeted at Neighbor appeared first on Reason.com.

Democratic delegates approved the party's 2024 platform at the Democratic National Convention in Chicago yesterday, including sections lamenting the unfairness of marijuana convictions. However, the platform failed to explicitly call for legalizing or even decriminalizing the drug, a change from its position four years ago.

"No one should be in jail just for using or possessing marijuana," the final 2024 Democratic Party platform reads. "Sending people to prison for possession has upended too many lives and incarcerated people for conduct that many states no longer prohibit. Those criminal records impose needless barriers to employment, housing, and educational opportunities, disproportionately affecting Black and brown people."

The platform praises President Joe Biden for his moves to reschedule marijuana and his "historic action to end this failed approach by pardoning people convicted federally for using or possessing marijuana." It also promises that Democrats "will take action to expunge federal marijuana-only convictions" and "combat drug trafficking and expand the use of drug courts, interventions, and diversion for people with substance use disorders."

Former Republican President Donald Trump's approach to criminal justice "could not be more different," the platform argues. "His Administration threatened federal prosecution for marijuana cases in states where marijuana was legal."

For opponents of drug prohibition, though, the platform is a step backward from the Democratic Party's 2020 platform, which said it was "past time to end the failed 'War on Drugs' which has imprisoned millions of Americans—disproportionately Black people and Latinos—and hasn't been effective in reducing drug use." That platform also said Democrats supported federal decriminalization and rescheduling of marijuana, and legalization of medical marijuana.

The Democratic Party's official position on marijuana prohibition continues to fall well short of its stated goal of ending the unfairness of the drug war. First, it conflates all recreational drug use with substance abuse and addiction, which is an atypical outcome. 

Second, the platform rests on the illogical notion that it shouldn't be a crime to possess and smoke marijuana, but it should remain illegal to sell it to others to smoke. (Notably, Biden's "historic" pardons for marijuana crimes excluded people convicted of growing or distributing the drug.)

Third, while drug courts and involuntary treatment are preferable alternatives to prison, they are still heavy-handed government interventions against adults for their personal choices. Drug courts and diversion programs operate under the threat of incarceration for noncompliance—the metaphorical iron fist in a velvet glove.

Even measures that the Democratic Party no longer explicitly supports in its platform—such as changes to Justice Department policy and decriminalization—would leave the federal prohibition of marijuana dormant but intact for future administrations to revive.

This has already happened. Former President Donald Trump's first attorney general, Jeff Sessions, rescinded President Barack Obama-era memos instructing U.S. Attorneys to take a hands-off approach to enforcing federal marijuana laws in states that legalized the drug.

Mass pardons and expungements are commendable initiatives, but those also don't address the underlying criminalization of marijuana. Neither does rescheduling.

The Democratic Party's position on pot is closer in spirit to creaky old Joe Biden, who could never quite give up his drug warrior ways, than the party's new leading candidates. As Reason's Jacob Sullum recently detailed, Vice President Kamala Harris and Minnesota Gov. Tim Walz both support marijuana legalization, although Harris is a Johnny-come-lately to her position. She was laughing off questions about marijuana legalization in 2014, but by 2018 she had come around and cosponsored a bill in the Senate that would have repealed federal prohibition.

According to a Gallup poll published last November, a record 70 percent of Americans, including 87 percent of Democrats, favor legalization. If the Democratic Party's presidential ticket and nearly 90 percent of its voters think marijuana should be fully legalized, how long will it take the party to catch up?

The post The Democratic Party Platform Still Won't Commit to Legalizing Marijuana appeared first on Reason.com.

Say what you will about the otherwise calorie-lite first fortnight of the Kamala Harris/Tim Walz campaign, at least it eased for a moment the shrill catastrophizing that has marked Democratic messaging against former President Donald Trump over these past nine years.

"Gone are [President Joe] Biden's sober exhortations about the battle for the soul of the nation and a democracy under attack," The Washington Post observed earlier this month. "In its place are promises of 'freedom' and 'a brighter future' and, at times, audible giggles and laughter."

Well, the darkness came back with a vengeance in Chicago during Monday's opening night of the Democratic National Convention. Staged as a somewhat awkward and late-running "Thank you Joe" celebration, Day One demonstrated that the party remains in thrall both to the millenarian temptation and its flip side of messianic zeal.

"We're facing inflection point, one of those rare moments in history when the decisions we make now will determine the fate of our nation and the world for decades to come," Biden barked, familiarly. "That's not hyperbole. I mean it literally. We're in a battle for the very soul of America."

As puzzling as it may seem to those scores of millions of us who never once voted for the man during his half-century in elected office, we heard serial testimonials during Biden's valedictory night about the president's soulcraft. "He has brought us together, and revived our country, and our country's soul," Convention Chair Minyon Moore claimed, improbably. Sen. Chris Coons (D–Del.) extolled the president's "determination to heal the soul of our nation." Daughter Ashley reassured us that "He never stops thinking about you."

If only these sentiments were merely the good-natured embellishments of retirement banquets. Democrats, as they did massively for former President Barack Obama and are already cranking up for Harris and Walz, positioned Biden as a benevolent, borderline omniscient parental figure, ennobling citizens with meaning through the munificence of their gaze.

"They saw us, they fought for us, they heard us," Democratic National Committee Chair Jaime Harrison said of Biden and Harris. The 2024 ticket, Harrison continued, "will invest in our hopes, and our dreams, and our futures." Hillary Clinton posited that "We're not just electing a president. We are uplifting our nation." California Lt. Gov. Eleni Kounalakis testified of the Democratic nominee that "She cares. She cares so much that if you are lucky enough to be her friend, she called you on her birthday, and sometimes she sings to you."

It was only the Democrats' miserable show-running organization that prevented Biden from being serenaded by James Taylor with a rendition of "You've Got a Friend," a song he also performed for Obama at the 2012 Democratic convention, and that Carole King dedicated to both Clinton and Bernie Sanders in 2016. These politicians seeking access to the nuclear codes are not some distant, calculating power-seekers, but rather neighborly types who just want to lend a hand!

Sen. Raphael Warnock (D–Ga.), a Baptist pastor, was the most effective at tying together the Democratic strands of millenarianism and messianism. After busting Trump's chops for hawking Bibles ("he should try reading it"), and alleging that the GOP nominee "is a clear and present threat to the precious covenant we share with one another," Warnock reached for the stars.

"I'm convinced tonight that we can lift the broken even as we climb," he said. "I'm convinced tonight that we can heal sick bodies. We can heal the wounds that divide us. We can heal a planet in peril, we can heal the land."

George Will produced a memorably relevant metaphor in the 2014 Ken Burns documentary The Roosevelts: An Intimate History. "The presidency," Will mused, "is like a soft leather glove, and it takes the shape of the hand that's put into it. And when a very big hand is put into it and stretches the glove—stretches the office—the glove never quite shrinks back to what it was. So we are all living today with an office enlarged permanently by Franklin Roosevelt."

So too goes the stretching of presidential speechcraft. Obama, with significantly more charisma than Biden or Harris could ever muster, expanded the modern rhetorical template with his 2008 convention speech, delivered against a backdrop of Greek columns in a 76,000-seat stadium, that climaxed with this rapturously hubristic close:

I am absolutely certain that, generations from now, we will be able to look back and tell our children that this was the moment when we began to provide care for the sick and good jobs to the jobless. This was the moment when the rise of the oceans began to slow and our planet began to heal. This was the moment when we ended a war, and secured our nation, and restored our image as the last, best hope on Earth.

Just prior to Obama's rise, Gene Healy warned us about executive branch omnipotence in his terrific book (and Reason cover story) The Cult of the Presidency. "The chief executive of the United States," Healy wrote, "is no longer a mere constitutional officer charged with faithful execution of the laws. He is a soul nourisher, a hope giver, a living American talisman against hurricanes, terrorism, economic downturns, and spiritual malaise. He 'or she' is the one who answers the phone at 3 a.m. to keep our children safe from harm. The modern president is America's shrink, a social worker, our very own national talk show host. He's also the Supreme Warlord of the Earth."

Obama's successor Trump, after having campaigned on a Great Man Theory of politics, continued the modern tradition of playing overpromiser in chief. "Dying industries will come roaring back to life," he predicted in his 2017 speech in front of a Joint Session of Congress. "Crumbling infrastructure will be replaced with new roads, bridges, tunnels, airports and railways gleaming across our very, very beautiful land. Our terrible drug epidemic will slow down and ultimately stop. And our neglected inner cities will see a rebirth of hope, safety and opportunity." Or not.

As Reason Editor in Chief Katherine Mangu-Ward remarked at the time, "This weirdly grandiose rhetoric is a reflection of a weirdly grandiose bipartisan conception of the powers of the president….Presidents do not make the earth move. They do not turn back tides. They do not heal the sick, or eliminate vice, or remake the nation. They are humans with human failings, and one of those failings is the inability to resist taking a big slurp of their own Kool-Aid in moments of triumph."

Investing our very souls into the fortunes of politicians is not the habit of a healthy civic culture. The people who compete for the right to control $7 trillion of money extracted from taxpayers upon threat of imprisonment are not your friends. The executives who sit atop the Justice Department, who have control over history's most powerful military, are not responsible for your hopes, your dreams, your healing. Imbuing elected officials with such spiritual potency is a recipe for self-infantilization, disappointment, and terrible executive-branch governance.

Presidential candidates will only stop promising to heal our souls when we stop asking them to. The long, slow climb out of our national sump hole requires not only that we treat pompous pols with the derision they deserve, but that we stop pouring our own aspirations into the career prospects of the politically ambitious.

Democrats will spend these next three days scaring voters both about Trump's legitimately scary behavior, and such Potemkin threats as Project 2025 (or as Sen. Jim Clyburn (D–S.C.) called it last night, "Jim Crow 2.0"). Such darkness is the regrettably typical stuff of politics, on both sides. It's when they imagineer a government headed by Kamala Harris to be an agent of spiritual healing that you should really reach for the gong.

The post Democrats Just Can't Quit Saving Our Souls appeared first on Reason.com.

On the first night of the 2024 Democratic National Convention (DNC), speakers assembled to make the case for Vice President Kamala Harris to be America's next president and to provide a glimpse of what policies she might pursue. Unfortunately, it's clear that industrial policy is likely to survive and thrive in a Harris administration, despite clear examples that giving public money to private companies carries significant risk.

Some speakers took shots at former President Donald Trump, with Shawn Fain, president of the United Auto Workers (UAW), invoking the closure of a General Motors (G.M.) plant in Lordstown, Ohio. G.M. shuttered the factory in March 2019 amid slowing sales; in July 2017, Trump had told supporters in Youngstown, "Don't move. Don't sell your house," because lost factory jobs would come back.

"Trump lied, and abandoned Lordstown," intoned the announcer of a video that played before Fain took the stage. "The G.M. factory in Lordstown did close, putting thousands of people out of work, because Donald Trump doesn't care about our communities."

"In 2023, who helped bring jobs back to Lordstown, Ohio?" Fain asked during his speech. "Kamala Harris!"

But it's worth noting that G.M. closed the factory just a decade after it received $60 million from the state of Ohio to operate the facility until at least 2039. When G.M. reneged on the deal barely 10 years later, Ohio chose to let the company keep $20 million.

Then between 2019 and 2023, the factory had another occupant: Lordstown Motors, an automaker that planned to build electric pickup trucks. The brand new company purchased the factory for $20 million after borrowing $40 million from G.M. Ohio officials, having not learned a lesson from the experience with G.M., gave Lordstown Motors $24.5 million in grants and tax credits.

And yet despite all the financial assistance, Lordstown Motors entered bankruptcy in June 2023.

"Today, tens of thousands of auto jobs are returning to the United States, thanks to the policies of the Biden-Harris administration," Fain said in a UAW video released last week. "That includes jobs in Lordstown, Ohio, where auto workers at Ultium Cells are now building batteries for General Motors."

Ultium is G.M.'s electric vehicle battery cell technology. "Ultium's Lordstown plant could qualify for tax credits worth more than $1 billion a year," according to a 2023 UAW report. And in 2022, the U.S. Department of Energy announced that it would loan the company $2.5 billion to build three factories, including the one in Ohio.

Ultium is also building a $2.6-billion factory in nearby Michigan, for which that state's government agreed to give the company $666 million. And Ultium was not the only company singled out at the convention.

"Trump talked big about bringing back manufacturing jobs, but you know who actually did it? President Joe Biden and Vice President Kamala Harris," New York Gov. Kathy Hochul said, moments after Fain spoke. "Look no further than the city of Syracuse, where a company called Micron is building a $100-billion microchip factory with union labor."

In October 2022, Micron pledged to spend $20 billion by the end of the decade to build what it deemed "the largest semiconductor fabrication facility in the history of the United States," signifying "the largest private investment in New York state history." The company further noted that it "intends to invest up to $100 billion over the next 20-plus years."

But the Biden administration agreed to award that company $6.1 billion in federal handouts for its Syracuse factory and one near Boise, Idaho. New York promised another $5.5 billion in state incentives.

Of course, it's entirely likely that these deals will be every bit as lucrative as promised: Micron alone promises that its Syracuse factory will "create nearly 50,000 New York jobs, including approximately 9,000 high paying Micron jobs." But at the time of this writing, Micron has a market cap of $118 billion, suggesting that it could've made the initial $20-billion investment without state and federal taxpayers picking up so much of the tab. Similarly, even though G.M. currently has a market cap of $52 billion and it has reneged on an economic development deal in the very recent past, it still continues to benefit from public cash.

With three more nights to go, the DNC will likely feature more policy proposals for a potential Harris administration. Unfortunately, the first night indicated that industrial policy is alive and well in the Democratic Party.

The post Industrial Policy Is Alive and Well at the Democratic National Convention appeared first on Reason.com.

After all the talk of abortion rights, protecting democracy, and how "fun" Vice President Kamala Harris apparently is, the first night of the Democratic National Convention culminated with a celebration of President Joe Biden's four years in office.

Biden "recovered all those millions of jobs that [Donald] Trump watched slip away," Sen. Dick Durbin (D–Ill.) declared. Biden "rebuilt the economy" after the pandemic put it "flat on its back," intoned Sen. Chris Coons (D–Conn.), a longtime Biden stan. 

Biden himself put the cherry on top. "We've had one of the most extraordinary four years of progress ever," the president said. "We gone from economic crisis to the strongest economy in the entire world," he claimed, pointing to job creation figures, economic growth, higher wages, and "inflation down, way down, and continuing to go down."

If so, someone should probably tell Vice President Kamala Harris about all that.

Just four days ago, Harris outlined plans for gigantic government interventions in the economy, including price controls. In what was billed as the first major policy speech of her hastily assembled campaign, Harris promised to implement the "first-ever federal ban on price gouging on food and groceries" and to take other actions to empower the federal government to "bring down costs." (There's been some debate in the days since her speech about whether it is fair to say Harris has called for price controls, but economist Brian Albretch has laid out clearly why she in fact did, writing that "any policy that gives the government the power to decide what price increases are 'fair' or 'unfair' is effectively a price control system. It doesn't matter if you call it 'anti-gouging,' 'fair pricing,' or 'consumer protection'—the effect is the same. When bureaucrats, not markets, determine acceptable prices, we're dealing with price controls.")

There has been a lot written already about why price controls are a terrible idea, and more will be written in the days ahead. For now, let's take a moment to appreciate the head-spinning logic that Biden and Harris are asking voters to accept: that America's economy is stronger than ever—but is also in need of radical government action to substitute the wisdom of bureaucrats for the market's power to determine prices.

Price controls are not a policy people reach for when things are going great. Governors don't go around threatening businesses with prosecution for price gouging when there's not a hurricane or other natural disaster happening. The Soviet Union didn't implement price controls because everyone was wealthy and well-fed. Neither did Venezuela.

But that's what Harris doing. On Friday, she promised "harsh penalties" on businesses that engage in whatever she (or her administration) determines to be "price gouging" or the collection of "excessive" profits—even though her campaign has yet to explain how she would determine those things.

Harris' promise to combat high grocery prices was made just hours after the White House Chief Economic Advisor Jared Bernstein was standing in front of reporters and touting how low grocery price inflation has been: "This morning, it was about 1 percent year over year," he said at a press briefing on Wednesday. "And there are a number of items within there where we actually have deflation, falling prices of some groceries."

Did someone tell Harris?

In part, this confusion probably stems from the unusual situation that Harris' campaign finds itself. She is, for all intents and purposes, the incumbent candidate in the race, despite not being the sitting president. And she's running against another quasi-incumbent in former President Donald Trump. Typically, incumbents try to push the message that everything is going well, or at least getting better, while challengers say everything sucks and promise to make it better.

With voters discontented with the state of the economy, both Trump and Harris are trying to distance themselves from the mess they each had a hand in creating. But Democrats can't go all-in on "everything sucks" for the obvious reason that Biden, the actual incumbent, is a Democrat.

The actual economic signals are a mixed bag right now. Unemployment has ticked up, raising fears of a possible recession on the horizon. High interest rates have replaced high inflation, which means many Americans are still feeling a squeeze on their personal finances. Biden doesn't deserve the applause he's getting, but there's also not a crisis that would demand the sort of radical actions Harris is proposing, even if the actions she's proposing really worked.

And of course, those high prices are largely the fault of government overspending (backed by heavy borrowing) during and after the pandemic. If Harris wants to put controls on something that would actually provide relief to Americans, she should aim to restrict government borrowing rather than grocery store prices.

Instead, it looks like Democrats have settled on the idea that Biden saved the economy and now Harris is here to clean up the mess—and they're just hoping no one thinks too hard about it.

By the way, you don't have to break your brain trying to make sense of this. It's far easier simply to remember that presidents don't run the economy and shouldn't get credit and/or blame for every single economic indicator. (Though they can certainly influence events, as we'll see if Harris gets her way and implements some form of federal price controls.)

But if nothing else, this Democratic cognitive dissonance creates a fun game for the next three nights of the convention: Will the speakers keep telling us that America's economy is stronger than ever, or that the country is in a crisis and Harris needs to be our price-setter-in-chief?

The post If Joe Biden Saved the Economy, Why Do We Need Kamala Harris' Price Controls? appeared first on Reason.com.

So reports the Johns Hopkins Hub; here's the underlying statement, from the President, Provost, and top deans:

As leaders of Johns Hopkins University, we are often called upon in the face of global, national, or local occurrences to issue public statements on behalf of the institution. These requests are usually grounded in a sense of connection to the values and purpose of our university and our common humanity, and on the occasions when we have issued such statements, we have attempted to choose our topics and words carefully.

In recent years, requests for institutional statements have increased in frequency. The subjects upon which we have been urged to speak have varied widely—human rights violations, acts of discrimination, changes in health regulations, incidents of targeted violence, military conflicts, and natural disasters, among others, have led to calls for a university statement.

Often those seeking such statements want us to identify and condemn the actors whom they regard as principally responsible. In other cases, those seeking statements simply desire an expression of concern or sympathy for the persons directly affected by the incident in question. However, we must recognize that taking institutional positions can interfere with the university's central commitment to free inquiry and obligation to foster a diversity of perspectives within our academic community.

As is the case with many of our peers, we have been weighing the value, appropriateness, and limitations of such institutional statements. We—as university leaders and deans—have arrived at a strong commitment to make institutional statements only in the limited circumstances where an issue is clearly related to a direct, concrete, and demonstrable interest or function of the university. We write today to share our reasoning on this important issue and to clarify and deepen our commitment to a posture of restraint.

To begin, the very idea of an "official" position of the university on a social, scientific, or political issue runs counter to our foundational ethos—articulated most clearly in our Statement of Principles of Academic Freedom—to be a place where competing views are welcomed, challenged, and tested through dialogue and rigorous marshaling of evidence. The university is the site, more than any other institution in our society, where the process of truth-seeking through intense and open contestation is given pride of place. Although institutional statements may feel warranted, consoling, or, at times, even necessary to guide the university through difficult moments, experience has shown that they can be counterproductive, and even at odds with our core mission. These statements can too easily fuel a perception that there are approved or endorsed "institutional" views on political or social issues, which may, in fact, conflict with the views of members of our community. They risk interfering with our truth-seeking function and compromising the ethos and credibility of the institution in the process.

Additionally, institutional statements can be perceived as performative or rote: They can excuse the absence of meaningful action to bring the community together in challenging moments, take up difficult questions, and learn, discuss, and debate together in a mutually respectful and supportive manner. They also can unintentionally model for our students that the only, or best, avenue for engaging with issues is to make public statements, obscuring that there are more effective ways to make change in the world.

Moreover, such statements foster an expectation that the institution will speak on a wide range of topics and a perception that when we decline to do so, it is a signal that the issues or the concerns of affected community members are unworthy of our attention. Why do some domestic or international conflicts or crises command our institutional attention, while others are regarded as less salient?

As the tide of statements has risen across the university, it has become clear that the more statements we publish, the more injurious the slight to members of our community when we decline to issue a statement in response to some other incident. This pattern not only undermines our commitment to inclusivity but also erodes trust in institutional leadership and, as noted earlier, compromises our core mission as a place of open inquiry and diverse perspectives.

For these reasons, we will restrict our communications to the standard we have articulated—limiting our statements to those occasions where an issue is clearly related to a direct, concrete, and demonstrable interest or function of the university. This means that not issuing a statement will be our default in the great majority of cases we are likely to face.

We acknowledge that the line between those issues that implicate a core interest of the university and those where the impact is less direct is not always easily drawn. But the inevitability of hard cases is not an argument against the approach we are adopting, which we believe will address the lion's share of cases that typically confront the university. Against this benchmark, for instance, a decision by government to reduce our permitted scope of activities might well justify a statement, but an event that has occurred internationally or nationally and that has no direct or concrete impact on our capacity to discharge our mission would not.

Critically, this posture of restraint does not mean the university will be unresponsive or unfeeling in the face of controversy or tragedy. Our priority is to respond to the events around us through the channels that are our university's core strength and time-honored calling—creating knowledge, engaging with ideas, and bringing discoveries and care to the world. When an external event affects members of our community, our university's focus will be to engage interested members of our community in educational and community programming that addresses the topic. Where appropriate, the university can offer direct support and engagement for those among us who are affected by the matter.

Further, our commitment as university leaders to embrace a policy of restraint is not meant to signal that members of the community should retreat from the world or the priorities of our institution. Indeed, our faculty, students, and staff engage the communities around us in countless productive ways, and we will continue to encourage our scholars to bring their ideas and expertise to inform the critical issues of the day. With the opening of the Hopkins Bloomberg Center, our capacity to serve as a platform to explore these issues has been magnified. And the university will remain unwavering in its commitment to values and aspirations in areas of strategic importance such as those embodied in foundational documents like the Ten for One and the Second Roadmap on Diversity, Equity, and Inclusion.

Finally, we are eager to engage faculty colleagues in an examination of whether this posture of restraint is appropriate not only for university leaders and deans but also for departments, centers and other units of the university. We will be working with the Johns Hopkins University Council to develop an answer to this question over the course of the fall term and to solicit broad input from the university, including divisional academic advisory boards and senates.

Of course, the dedication to institutional restraint will not apply to any individual faculty member speaking in their own scholarly or personal capacity. Again, the intent of this commitment is to extend the broadest possible scope to the views and expressions of our faculty, bolstering the freedom for them to share their insights and perspectives without being concerned about running counter to an "institutional" stance.

Ours is an extraordinary institution, a place furthered by the courageous interrogation and boundless discovery of our colleagues. The project of the university as an institution is to create the conditions for that exploration, discovery, and engagement, even for controversial or disquieting ideas. Against that overarching and foundational goal, we believe that the policy of restraint to which we are now committing ourselves is timely, principled, and critical for the continuing relevance and mission of our university.

The post "Johns Hopkins University Articulates Restrained Approach to Issuing Public Statements" appeared first on Reason.com.

Full disclosure: I got into a little physical altercation yesterday with the Chicago police and lost my notepad in the scuffle. We'll get to that, but for now please forgive any errors in the timeline.

The first march organized by the March for the Democratic National Convention was set to take off from Chicago's Union Park at 1 p.m. Reporters were invited to get there at 7 a.m; I have no idea if any did, but at 10:30 a.m. a friend texted to say, "Union Park right now is very underwhelming." This seemed to be the consensus going in; that the anticipated 30,000 marchers would come nowhere near, and that the press would be overrepresented, which turned out to be the case—while reporting I ran into seven journalists in I know, when the average is about zero. But some of the protesters were also following the trend of pasting "PRESS" across their chests. A young woman I met on the bus around noon did the same. When I asked who she was reporting for, she looked confused; it was just a shirt. Okay, but why?

Those entering Union Park were handed a gazillion pamphlets with slogans like "NO WAR BUT CLASS WAR SMASH IMPERIALISM WITH COMMUNIST REVOLUTION," "12 ESSENTIAL FACTS FOR UNDERSTANDING THE CURRENT ISRAEL-GAZA CONFLICT," "WORKERS STRIKE BACK, WHEN WE FIGHT—WE CAN WIN," and "NEITHER PARTY REPRESENTS THE WORKING CLASS—CLASS WAR 2024,"—the all-cap emphasis conveying the commitment of the pamphlet distributors. Nearly everyone at the rally turned out to be in their 20s, dressed in today's radical chic—keffiyeh as cape, keffiyeh as neck scarf,  keffiyeh as headwrap. There were a few women in full Handmaid's Tale regalia, many young people in pro-Socialist red, and one dude wearing, refreshingly, an old Star Wars t-shirt. There was no police presence inside the park proper, but just outside there were at least 100 officers, half of them on bicycles, all of them waiting in the shade for something to happen. When I asked whether they'd be accompanying the marchers on their 1.1-mile city-approved route, I was given two short nods.

Before any marching began, there were speeches from the stage—speeches about genocide in Palestine, abortion, student debt, colonial settlers, Black Lives Matter, and cops being bastards. On and on it went, past 1 p.m.; the chanting the speakers requested was rarely very chanty. It was hot and people were thirsty and the line for the porta-potties stretched over 200 people long. 

"Can someone help me spread this out so it can be seen by the helicopter?" asked a young man, unfurling a 50-foot sheet painted with the words, "LOOK UP 'NAKBA.'"

"Would you like to carry a sign?" asked another young man, trying to offload one of the 400 or so signs strewn across the field. The sign-makers had been industrious, affixing emphatic messages like "STOP THE CRIME—FREE THEM ALL" and "GENOCIDE JOE'S LEGACY: BUTCHER OF GAZA" to wooden stakes. The problem was, there weren't nearly enough takers. How many people did the guy next to me estimate were actually here?

"Five hundred," he said, after a beat, just before someone on stage shouted into the microphone how great it was to see 15,000 people in attendance. The guy adjusted his estimate to 1,500, which I'd say was about right.

What they lacked in numbers they made up for in enthusiasm, waving Palestinian flags, communist flags, anarchist flags, "land back" flags, and a flag whose exact origin the person holding it said he did not really know. Someone mentioned they'd seen some Israeli flags earlier but I didn't see any. As for American flags, I saw exactly one, carried by a veteran named Shawn, who said he had not liked seeing American flags burned during Israeli Prime Minister Benjamin Netanyahu's visit to Congress.

"I think that's greatly deplorable," he said, as several young men with their faces covered moved close to him. But when they noticed that several members of the press also wanted to talk with the one dude carrying an American flag, they backed off. 

"Earlier they were saying derogatory things towards me like, 'get that shit out of here. What the fuck's wrong with you?'" he said. "But at the end of the day, nobody's going to intimidate me. Nobody's going to prevent me from voicing my opinion."

If there was a similarity in the way the crowd looked and behaved, their many and multiple demands were perhaps what gave the gathering a lack of cohesion and group energy. That changed at 2:02 p.m., when it was announced that there was a special guest speaker.

However you feel about independent presidential candidate Cornel West, you would have been as energized by his 5-minute speech. He roared and he cooed, talking about "our profound love for our Palestinian brothers and sisters" and how we must extend that profound love to all our brothers and sisters. It was the adrenaline shot everyone needed to get through the next hour. With the bike police edging closer, the marchers funneled out of the park and into the streets. Messages were shouted into bullhorns, girls danced, boys drummed— they were on the move to Park 578 a mile away. The sun was still shining and the press—there must have been one for every three marchers—walked on the sidewalks. Between them and the marchers were the bike police, pushing their bikes in formation, and astride yellow-vested "safety team" members, who kept themselves between the marchers and the police. It was all very choreographed, and one would not be faulted for thinking that this whole thing would go off without a hitch.

But of course, there would be a hitch, and it came in the form of young men with their heads and faces covered. Though they may have had no affiliation with them, they marched beneath an Anarcho-brat flag and a People's Defense Units (YPG) flag, representing the Kurdish militant group in Syria. A colleague mentioned he'd seen maybe eight of the men trying to start something earlier but they had not gained purchase, the other marchers not wanting to be part of whatever mayhem they might want to commit. But now we were at the mouth of Park 578, the turnaround spot for marchers and the closest point to the United Center, where the DNC was taking place.

"That way!" one of the young men shouted, pointing toward the United Center, trying to get the group, which had grown to maybe 15 men, to make a break for the tall barrier fences. It was not going to happen—not with the cops forming a triple-line barrier of bikes and other marchers yelling for the YPG brats to stop, shouting that the march had been planned for nearly a year! It was supposed to be peaceful! Stop fucking it up! At least that's what I imagined the girl in the keffiyeh was yelling at the young men, her voice so hoarse with emotion I could not make out the words.

My colleague and I tried to interview the young men, but they had the same response to every question: "We don't talk to media." It's a catchall phrase common among young protesters, the eyes above their masks growing not bolder but shakier with each iteration. You could see them thinking it was better to stonewall than risk having one's responses scrutinized and memorialized.

But this is not always the case! As I would find ten minutes later, when some of the protesters had had enough of longingly looking at the United Center and decided to breach an exterior fence. Pop pop clang, down went the barriers, in went maybe 75 protesters. Busting shit down was an exciting change, if entirely predictable, meanwhile, a gentler strain of protesters, mostly women, were shouting from the other side, "Come back!" It was time to march back to Union Park, they said. They did not like the risks people were taking, and they were not going to do their many causes any good.

I followed the protesters over the fence.

"Come on everybody! Come on!" shouted a tall lanky guy all in black, with a garbage can lid painted with the anarchist A strapped to his back. What was he wanting everyone to do?

"I want to get all the way inside the DNC!" he said, pointing toward the United Center. "I mean what are we doing here? Isn't this what we came here to do?"

Maybe not everybody; maybe not the 70-year-old lady peace activist who I'd watch gasp as the fence came down. Maybe this kind of bravado was not for her.

"I've seen 70-year-olds do it!" he said. "We can do it if we do it together. If we can dream it, we can do it!"

He was clanging his garbage can lid when someone shouted, "Cops on all sides!" We turned toward the phalanx of blue uniforms, in the jubilation no one had seen them form a walking line, or I hadn't seen it. Shouts of "Nazi motherfuckers" and "Fuck you!" lasted maybe 30 seconds before the cops were on us. I did my best to duck into a little alcove in the fencing. Yeah, that didn't work.

"Move it! Move it!" cops shouted, as people fell down or were grabbed; when they were variously combative or trying to flee.

"You're in a restricted area!" an officer shouted at me. Another prodded me with her nightstick.

"Don't hurt her!" a protester shouted, which I thought was kind of adorable and which I caught on video, just before finding a small egress to the other side. Two men pulled me through—thanks guys—and into the waiting path of another journalist pal calmly taking in the proceedings.

"Hello Nancy," he said, adding that he thought things were about to calm down—and they did. The bulk of protesters marched back to Union Park, perhaps unaware of the side streets lined with hundreds of waiting officers, who (I'm told) were instructed to pull down their face shields, in case they needed them. On this night, they did not.

The post The Anarchist Dreams: Dispatch From the DNC appeared first on Reason.com.

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

• A federal appeals court slaps down the federal government's odd argument that it doesn't have to compensate landlords for its eviction moratorium because the moratorium was illegal.
• Vice President Kamala Harris sets a first-term goal of building 3 million middle-class homes.
• A Michigan judge sides with property owners trying to build a "green cemetery."

But first, a look at an under-the-radar federal regulation change that might make it easier for builders to create more small multifamily "missing middle" homes.

Code Games

In his 1942 book Capitalism, Socialism, and Democracy Joseph Schumpeter praised capitalist mass production for bringing almost every basic commodity, from food to clothing, within the affordable reach of the working man. The one exception he highlighted was housing, which he confidently predicted would soon see a similar collapse in prices due to mass-produced manufactured housing.

As it happens, manufactured housing production—which is built in factories and then shipped and installed on-site—peaked in the mid-1970s and has been limping along as a small share of overall home construction ever since.

Nevertheless, the dream that cheap, factory-built homes can deliver lower-cost housing has never died.

It's certainly alive and well in the current White House.

This past week, the Biden-Harris administration released a "fact sheet" of actions it was taking to lower housing costs. It included an in-progress regulatory change that would allow two-, three-, and four-unit homes to be built under the federal manufactured housing code set by the U.S. Department of Housing and Urban Development (HUD).

"The HUD Code creates economies of scale for manufacturers, resulting in significantly lower costs for buyers," says the White House in that fact sheet. Letting small multifamily housing be built under the HUD code will extend "the cost-saving benefits of manufactured housing to denser urban and suburban infill contexts," it says.

IRC, IBC, IDK

The proposed change comes at an interesting time for small multifamily housing construction.

Across the country, more and more states and localities are allowing more two-, three-, and four-unit homes to be built in formerly single-family-only areas.

That liberalization of the zoning code (which regulates what types of buildings can be built where) has set off a follow-on debate about which building code (which regulates construction standards) newly legal multiplexes should be regulated under.

Currently, the options are either the International Building Code (IBC) or the International Residential Code (IRC).

The IBC and IRC are model codes created by the non-profit International Code Council, which are then adopted (often with tweaks and changes) by states and localities.

The IBC typically covers apartment buildings of three or more units, while the IRC covers single-family homes. Neither is particularly well-suited for the regulation of smaller multi-family buildings that cities are now legalizing.

The IBC, for instance, requires expensive sprinkler systems that don't do much to improve fire safety in smaller buildings but can make their construction cost-prohibitive.

Zoning reformers have responded by trying to shift the regulation of smaller apartments into the IRC. But that raises its own problems, says Stephen Smith of the Center for Building in North America.

"It's a complicated thing to do because the IRC is not written for small multi-family. It's written for detached single-family," he says. "For traditional apartment buildings with a single entrance and stairs and halls and stuff, it's not really clear how the IRC would work with that."

The White House's proposed changes open the possibility of sidestepping this IRC-IBC dilemma entirely by letting builders of manufactured, multifamily housing opt into a single, national set of regulations.

A Floor or a Ceiling?

The question then is whether this will actually make life easier for builders.

The effect of HUD regulation on the production of single-family manufactured housing is a topic of intense debate.

Prior to the 1970s, manufactured housing was governed by a patchwork of state and local building codes. In 1974 Congress passed legislation that gives HUD the power to regulate manufactured housing.

Critics of HUD regulation argue that its initial implementation caused the steep decline in manufactured housing production in the 1970s.

In particular, they point to the HUD requirement that manufactured housing must sit on a steel chassis as a regulation that increases costs and decreases production.

Brian Potter, a senior fellow at the Institute for Progress and writer of the Construction Physics Substack, contrastingly argues that HUD regulation has actually helped keep the cost of building manufactured housing down.

The production of all housing, not just manufactured housing, plummeted in the 1970s, he notes. Since the 1970s, the costs of non-manufactured, site-built housing have skyrocketed while the costs of building manufactured housing have risen much less, he points out. Potter argues that the effect of the steel chassis requirement is also overstated.

To this day, manufactured housing is the cheapest type of housing to produce when comparing smaller manufactured housing units to smaller site-built single-family housing units. The HUD code has less expensive requirements and allows builders more flexibility in the construction of units.

"The most interesting and attractive thing about the HUD code is that HUD code homes tend to be much, much less expensive than single-family homes," says Potter.

The hope is that allowing newly legal duplexes, triplexes, and fourplexes to be built under HUD standards would reduce costs compared to building them under IBC or IRC regulations.

Degrees of Change

While the HUD code has been in existence since the 1970s, its explicit exclusion of manufactured, multifamily housing is a relatively recent development. In 2014, HUD issued a memorandum saying that only single-family housing can be built under the department's manufactured housing standards.

In a 2022 public comment on the proposed updates, the Manufactured Housing Association for Regulatory Reform argues that the 2014 memorandum was in error and that HUD actually has no regulatory authority to cap the number of units that can be built under the code.

According to the White House fact sheet, the Biden administration's proposed updates to the HUD code would once again allow up to four units of housing to be built under the code once again.

If the HUD code critics are correct, then this will make a minimal difference. Under this theory, builders would just have another cost-increasing building code to choose from. If folks like Potter are correct, however, this should allow builders to opt into less demanding regulations. We might therefore see an increase in the number of two-, three-, and four-unit homes built.

Building code liberalization will still only be effective in places where zoning code liberalization has already happened. Cities and states still have every power to zone out multifamily housing and ban the placement of manufactured housing.

Where cities have made those "missing middle" reforms, however, it's possible the White House's proposed regulatory changes will increase the production of manufactured, multifamily housing while policymakers figure out whether how to change the IBC or IRC to allow more site-built multiplexes.

If the CDC's Eviction Moratorium Was Illegal, Do the Feds Have To Pay for It?

When the Centers for Disease Control and Prevention (CDC) banned residential evictions for non-payment of rent in 2020, property owners responded with a flurry of lawsuits, arguing that the federal government owed them compensation for what amounted to a physical taking of their property.

While those lawsuits were ongoing, the U.S. Supreme Court ruled in August 2021 that the CDC moratorium was an illegal overstepping of the agency's authority.

This armed the federal government with an audacious response to all those property owners' claims for compensation: Because the CDC's eviction moratorium was illegal and lacked federal authorization, the federal government wasn't required to pay any compensation.

Incredibly, the Court of Federal Claims agreed with this argument—citing past cases that immunized the government from having to pay compensation for clearly illegal, unsanctioned acts of its agents—and dismissed a property owners' lawsuit in the case of Darby Development Co. v. United States.

But this past week, the United States Court of Appeals for the Federal Circuit sided with property owners and reversed that dismal.

The appeals court ruled that the CDC eviction moratorium, while illegal, clearly did have the endorsement of both Congress and the executive branch.

"Taken to its logical conclusion, [the government's] position is that government agents can physically occupy private property for public use, resist for months the owner's legal attempts to make them leave, and then, when finally made to leave, say they need not pay for their stay because they had no business being there in the first place," wrote Judge Armando O. Bonilla in an opinion issued earlier this month.

The case is now remanded back to the federal claims court.

"The government should not be able to hide behind its own illegality to avoid paying damages for that very illegality," Greg Dolin, a senior litigation counsel at the New Civil Liberties Alliance (which filed an amicus brief in the Darby case) told Reason.

Kamala Harris, Supply Sider?

In a speech this past Friday laying out her economic agenda, Vice President and Democratic presidential candidate Kamala Harris criticized state and local restrictions on homebuilding for driving up prices.

"There's a serious housing shortage in many places.  It's too difficult to build, and it's driving prices up. As president, I will work in partnership with industry to build the housing we need, both to rent and to buy. We will take down barriers and cut red tape, including at the state and local levels," said Harris, promising to deliver 3 million units of housing that's affordable to middle-class families by the end of her first term.

It's always refreshing to hear a politician accurately diagnose the cause of America's high housing costs as a matter of restricted supply. It's even better when politicians promise to do something about those supply restrictions. Harris' remarks are rhetorically a lot better than the explicit NIMBYism coming from Republican presidential contender Donald Trump.

Nevertheless, Harris' actual housing policies, including downpayment subsidies and rent control, will only make the problem worse. Downpayment subsidies will drive up demand and prices while leaving supply restrictions in place. Rent control has a long, long record of reducing the quality and quantity of housing.

Harris' speech was also peppered with lines attacking institutional housing investors who are providing much-needed capital for housing production.

Town's Ban on 'Green Cemetery' Is Dead

If the government doesn't like your cemetery, can it just ban all cemeteries? The answer, at least in Michigan, is no, no it can't.

In the case of Quakenbush et al v. Brooks Township et al, a state circuit court judge sided with a married couple who'd sued their local government when it passed a ban on new cemeteries with an eye toward stopping their development of the state's first "conservation burial forest."

"We're excited and feel vindicated by this ruling. We are delighted that the judge understood that Brooks Township's ordinance violated our right to use our property," said Peter and Annica Quakenbush, the plaintiffs in the case. They were represented by the Institute for Justice.

Quick Links

• Jim Burling, the Pacific Legal Foundation's vice president of legal affairs, has a new book Nowhere to Live covering the legal history of zoning in America, the courts' acquiescence to this restriction on property rights, and all the attendant consequences of high housing costs and homelessness that have flowed from it.
• A new paper published on SSRN estimates that a 25 percent reduction in permitting times in Los Angeles leads to a 33 percent increase in housing production.
• Calmatters covers the killing, or severe injuring, of various bills introduced in the California Legislature this year that aimed to pair back the California Coastal Commission's powers to shoot down new housing production. Read Reason's past coverage of the Coastal Commission here and here.
• Hawaii has legalized accessory dwelling units statewide, but they haven't made building them easy.
• If you build it, prices drop.

*UPDATED* (and still true)

When you build "luxury" new apartments in big numbers, the influx of supply puts downward pressure on rents at all price points -- even in the lowest-priced Class C rentals. Here's evidence of that happening right now:

There are 21 U.S. markets where… pic.twitter.com/BF9GY0YiFY

— Jay Parsons (@jayparsons) August 13, 2024

The post Code Games appeared first on Reason.com.

Sabra Brucker works as an executive assistant. Her husband, Dagan, is a fifth-generation farmer in Cropsey, Illinois, about 100 miles south of Chicago.

After many years of infertility and miscarriages, they finally became the parents of four young children: Addison, born in 2017; Andi, born in 2019; and twins Aiden and Arie, born prematurely in March 2021.

The Brucker family had never previously endured a run-in with child protective services. A series of medical complications involving the younger twin, Aiden, suddenly changed that. After the parents sought care for their sick child, they were falsely accused of breaking Aiden's ribs and subjected to months of humiliating inequity. And when that was over, the authorities refused to disclose the identity of the actual perpetrator.

"I never thought that this was even humanly possible," says Sabra. "To be honest, I
was probably naive."

When Aiden was 5 months old, the Bruckers discovered he had genetic intestinal malrotation—the same condition that had required emergency surgery to save his older sister Addison's life back when she too was 5 months old.

On August 9, 2021, the Bruckers took Aiden to the OSF Children's Hospital Emergency Room in Peoria, Illinois. He was experiencing intense stomach pain and vomiting, just as his older sister had. Genetic intestinal malrotation can be a life-threatening condition, and it requires immediate, emergency intervention.

Aiden's condition, though serious, was not as immediately life-threatening as Addison's had been. He was given ultrasounds and X-rays for his upper GI track, abdomen, and chest. His intestinal reversal was visualized, but no skeletal concerns were noted. Nevertheless, he was held in the hospital for observation, and subjected to daily, repeated abdominal ultrasounds and chest and abdominal X-rays.

On the fourth day of his stay at the hospital, seven rib fractures became visible on the X-rays. These were all new, non-calcified fractures that had not appeared on earlier X-rays. Rib fractures are viewed by medical profession as evidence of possible abuse.

The Bruckers immediately suspected that the fractures had occurred during the hospital stay itself, possibly due to the extensive handling and exams Aiden had endured. The lack of any signs of these injuries at admission certainly suggested that they had appeared during Aiden's inpatient care. And yet as soon as the fractures were detected, a child abuse hotline call was placed to the Illinois Department of Children and Family Services (DCFS) naming the Bruckers as suspected abusers.

Sabra was in a meeting with her boss when she received the news.

"I immediately called my husband—he was at the hospital with Aiden—and I said, 'What is going on?'" Sabra recalls. "I just remember the sheer confusion and fear in his
voice."

Sabra and Dagan were not quick to point fingers, but they did wonder if the hospital was aware of its own potential liability when it accused them of causing the fractures.

Following the call to the child abuse hotline, a state-contracted child abuse pediatrician, Channing Petrak, assumed the role of directing Aiden's medical testing as a suspected child abuse victim. Petrak oversees child abuse cases under a subcontract her office holds with the DCFS for central Illinois. While not a hospital employee, she is viewed as the head of the hospital's child abuse team. In that capacity, she was empowered to decide which tests Aiden needed in order to confirm or rule out abuse.

She was also immediately enlisted to discuss the case with DCFS and the police and to determine whether child abuse had occurred. If she believed it had, her role would include testifying against the parents in the event the case went to court.

Petrak was responsible for testing not just Aiden but the other Brucker children as well. While parents have the right to refuse medical procedures that are not required by a court order or emergency, the fear of CPS retribution looms large.

On multiple occasions, Sabra requested a meeting with Petrak and the OSF team to ensure the timeline of the injuries was clear. She felt it necessary that everyone understand the fractures had not been present on Aiden's body upon admission, as shown by multiple X-ray examinations. Clarifying this, she thought, would allow her and Dagan to work alongside the hospital to identify their underlying cause.

Sabra even wrote on the whiteboard the team used for notes: "Can we clarify Xray finds with DCFS?" and snapped a photo of it.

"I wanted a picture with a time stamp because no one would speak to me," she says.

Sabra's requests were ignored.

Meanwhile, Petrak pushed the family to authorize an MRI, which would require Aiden to fast for eight hours and then undergo general anesthesia and be intubated. As there was no suspicion of other injuries that would have made an MRI useful, the Bruckers tried to object.

In response, the hospital threatened the family with a court order that would require Aiden to remain in the hospital's care pending a judicial order for the MRI. Since complying with the MRI demand seemed to be the only way to bring their son home quickly, Sabra comforted Aiden through the fast, and handed him over to the hospital's staff—who sedated and intubated him, and proceeded with the MRI.

The other Brucker children—ages four, two and now six months—were also subjected to observation at their home. These included visual exams of their genitals.

The state even demanded that the 4-year-old daughter, Addison, submit to a forensic interrogator. This investigator reported that Addison was very "sweet" and "polite," and no concerns were noted from her 2-hour interview.

Meanwhile, DCFS determined that the Bruckers could not take Aiden home by themselves upon his discharge. Instead, the agency demanded the family find someone else to take care of their four children. That person could do so at the Bruckers' home, and Sabra and Dagan could live there—but they would not be allowed to be alone with their children at any time. If they not did find a caregiver to watch the kids 24/7, the children would be taken into foster care and placed with strangers.

Sabra's parents, Don and Shari Boyd, lived 273 miles away. Thankfully, Shari was on hand to help out, even though she was in the middle of breast cancer treatment.

Diane Redleaf, a defense attorney who co-chairs the National Coalition to End Hidden Foster Care, says that the Bruckers' experience is commonplace. Efforts are underway to secure reforms that would allow families like the Bruckers to have some recourse when they are threatened with having their kids taken away.

This arrangement for the children was supposed to last for just two to five days, but DCFS kept extending it. The caseworker even reminded grandma Shari that she couldn't use the bathroom without taking the kids in with her. Sabra and Dagan's nighttime feedings of their baby twins also had to be supervised by Shari.

The Bruckers wanted to object, but they felt they had no choice.

This led to odd situations, such as Dagan not being able to have his kids take turns riding the combine with him—their favorite fall activity. The combine had only two seats, so if one of the children rode along, Shari and the other three children would have to somehow ride along too, or the government's plan would be violated.

As the weeks dragged on, the Bruckers worked to demonstrate that the abuse allegations against them were false. A University of Chicago pediatric orthopedic specialist, Christopher Sullivan, saw Aiden in his office and reviewed his radiology imaging and lab testing, formally concluding that the timing of the fractures' first appearance made it impossible for them to have occurred prior to the hospital admission.

Sullivan also noticed that Aiden had very low Vitamin D and high parathyroid hormone levels, which made his bones extremely fragile. He concluded that the likeliest explanation for the fractures was routine handling at the hospital.

Despite this report—and many letters from the Bruckers' pediatrician, family members, friends, and teachers—DCFS's restrictions persisted.

Meanwhile, DCFS came to suspect that the Bruckers' day care providers were Aiden's possible abuse perpetrators. For that reason, DCFS told the Bruckers they could no longer send their kids there. Everyone who had ever been in contact with Aiden before his hospital stay had suddenly become a suspect.

Sabra requested that their two older children be allowed to keep going to their day care— with their familiar friends and routines—but the caseworker said no. The caseworker also continued to demand weekly check-ins with the Bruckers. Each time, she insisted on strip-searching the twins and commenting on natural bodily features, such as inverted nipples.

As the family languished, Sabra checked the mail one day and was shocked to find a bill from the hospital for over $60,000. Her private insurance provider had denied the payment for Aiden's MRI as "medically unnecessary." The Bruckers told the hospital's billing department that they had not requested the MRI; it was done at the behest of Petrak. Soon after this, the Bruckers' billing records disappeared from their file at the hospital.

Illinois gives DCFS 60 days to complete an investigation. Knowing this, the Brucker family decided on day 60 that they had had enough of the "voluntary safety plan." They hired a lawyer with DCFS experience who confirmed their right to terminate the plan. He notified DCFS accordingly.

Three months later, in January 2022, a caseworker from a different DCFS regional office phoned Sabra to say their investigation file had been transferred. Since the children had not been seen by DCFS in several months, the new caseworker wanted to come observe them. The family declined this request. The new DCFS caseworker also informed Sabra that the Bruckers' case file was completely empty of investigative notes.

In March, and again in October, 14 months after the case had begun, the Bruckers' attorney submitted a complaint to the DCFS Inspector General. In November 2022, he received a response saying the inspector general was unable to investigate this complaint because the case was still open. The Bruckers couldn't help but wonder whether DCFS was keep the status of the investigation ambiguous in order to avoid accountability.

Finally, in November 2023, the Bruckers received a letter from DCFS stating that the case was now closed and Dagan and Sabra were cleared of any wrongdoing. Curiously, the letter claimed that "someone" had been "substantiated" as Aiden's abuser.

The Bruckers filed an inquiry as to who that person was. They were told they had no right to see these records.

Neither Petrak nor the hospital responded to a request for comment. A spokesperson for DCFS declared in a statement: "DCFS is mandated by Illinois statute to investigate any allegations of child abuse or neglect that is reported to our agency."

In situations like the Bruckers', which are far too numerous to be viewed as aberrations, concerns about children's health and well-being are cited as pretexts to legitimize witch hunts against parents and other caregivers. These investigations have lasting consequences. The Brucker children were left with extreme separation anxiety. Sabra experienced debilitating post-traumatic stress disorder. The family considered suing the caseworkers but decided that litigation would force them to relive the horror.

But they did decide to speak out about their harrowing experience. They want people to understand that the state's so-called voluntary safety plan did was neither voluntary nor safe—it was a sham.

Thankfully, Aiden's medical condition has resolved, and he's now in excellent physical shape.

"He's growing, cute, talking, very healthy now," says Sabra.

Meanwhile, Petrak recently became president of the board of directors of the National Children's Alliance. The organization oversees funding and accrediting for child advocacy centers, where allegedly abused children are interviewed and assessed across the country.

The post Illinois Falsely Accused These Parents of Abusing Their Baby—and Now Won't Tell Them Who Actually Did It appeared first on Reason.com.

I cannot get enough of the Democratic National Convention vasectomy van: Imagine, in an election where, thus far, one party has positioned itself as pro-family—to the point where "childless cat ladies" have become a focal point, brought to the fore by vice-presidential contender J.D. Vance's catty, mean-spirited cable news comments—the other party is parking vasectomy and abortion vans outside of the convention.

Technically, it's Planned Parenthood Great Rivers doing it, making reproductive rights—and the Republican Party's attack on them—a focal point of this convention. But Democrats are, more broadly, all over the place this first night of the DNC, as if they can't quite figure out what they're all about or where they want to go, whether they're the party of joy or a party that just dealt with a succession crisis, or a party that's riven by the Israel-Hamas conflict or a party that stands in defiance of purported Republican attacks on essential freedoms.

Consider the new ad, unveiled by Vice President Kamala Harris' presidential campaign:

DNC airs new "Freedom" ad to kick off the Democratic Convention pic.twitter.com/lXLqKi2rAN

— Kamala HQ (@KamalaHQ) August 20, 2024

But such an ad assumes Americans have short memories. Ones that forget all the regulations Democrats have imposed that have driven up housing costs. Ones that forget how people were not enjoying freedom when they were shut inside their homes during the COVID-19 pandemic, or forced to stay home from school and church, by blue-staters. Ones that forget the last decade of (Democrat-enforced) culture war language policing and hypersensitivity to all manner of grievance. Democrats aren't really the party of freedom, they're the party of dictating, in ways big and small, how you live, either for your own good or the greater good, as they define it.

What exactly are they for? The first night of the DNC was a good reminder of the party's schizophrenia. New York Rep. Alexandria Ocasio-Cortez's (D–N.Y.) speech was excellent, proving that they have at least one promising young talent waiting in the wings. Formerly an outsider given a paltry 90-second speaking slot, Ocasio-Cortez has earned her spot as a Democratic Party mainstay, a primetime speaker whose name is chanted by an adoring arena. (This undeniable charisma is bad for the rest of us, mind you, as Ocasio-Cortez is economically illiterate and embraces Bernie Sanders-style socialism.)

At times, they veered away from light-touch diversity—a raft of speakers from all different backgrounds—and toward more explicit identity politics. Hillary Clinton's speech was all about shattering the glass ceiling. Democratic National Committee Chair Jaime Harrison emphasized that a "black convention chair and a black D.N.C. chair lead us in nominating a black and [Asian American and Pacific Islander] woman to be the next president," saying that "this election is about every little boy inspired by a party chair who looks like them, and every little girl who will finally see a president who looks like her." (I highly doubt young children are paying attention to the party chair.)

This emphasis—on being a candidate of firsts, on the "I'm with her" mentality—is especially interesting because it's one Harris has steered away from, ostensibly learning from the mistakes of Clinton's failed 2016 run. Ocasio-Cortez directly inverted this emphasis in her speech, shifting from voters being with the candidate to the candidate being with the voters. "If you are a working parent trying to afford rent and childcare, Kamala is for you," said Ocasio-Cortez. "If you are a senior who has to go back to work because your retirement didn't stretch far enough, Kamala is for you. If you're an immigrant family just starting your American story, Kamala is for you."

Everyone who covered 2016 will overthink that race forever, but AOC's "Kamala is for you" sounds like the inversion of "I'm with her."

— David Weigel (@daveweigel) August 20, 2024

Oh, and President Joe Biden also spoke. He didn't really say much of note. It was fine. But the fanfare was…aggressive, thanking Biden constantly for his service, for his leadership, for everything. Also, implicitly, for stepping aside and putting the presidency back in play.

The shenanigans also turned destructive: Outside of the security perimeter, protesters—a smaller turnout than was expected—succeeded at tearing down gates and fencing.

Tearing down the fence. Others trying to keep the peace pic.twitter.com/jgVU4WklS2

— Nancy Rommelmann (@NancyRomm) August 19, 2024

Things turned chaotic:

Last vid of the day. Two funny things: the protesters saying to the cops, "Don't hurt her!" and, once I wriggled out of the fencing (with the help of two dudes pulling me), who is standing there cool as a cucumber saying, "Hello Nancy" but @mcmoynihan. Hello from Chicago! pic.twitter.com/vjhFdnREj9

— Nancy Rommelmann (@NancyRomm) August 20, 2024

There were also some protesters inside:

Group of protesters with their backs turned to Biden and hands over their mouths. They're quiet. So far unmolested by officials or security. pic.twitter.com/VuKcwc1Kzc

— Alex Seitz-Wald (@aseitzwald) August 20, 2024

It remains to be seen how much trouble the protesters will cause, and how the situation in Gaza will be discussed on the main stage, but the protests outside were a decidedly inauspicious start.

Scenes from New York: Why does 3.5 grams of weed, purchased legally, cost $60 in New York, while unlicensed bodegas are selling for $40? Some of it also has to do with the federal, state, and local taxes (including 13 percent sales tax upon purchase) that must be forked over by dispensaries, as well as the security systems they must put in place to keep their wares safe. They're also trying to recoup the costs of legal fees and securing expensive licenses to operate legally.

Basically, everywhere a legit entrepreneur turns, the state has made it quite expensive for them to simply open up a cannabis business. And a big chunk of that cost gets passed down to the consumer.

QUICK HITS

• "Democrats begin their four-day national convention Monday in the city that perhaps best exemplifies the chasm between their party's dreamy policy rhetoric and grim real-world results," writes Reason's Matt Welch. "As a direct result of one-party misrule (there are zero Republicans on the 50-seat City Council), Chicago's tax base is decreasing, not increasing. The population has declined for nine consecutive years, is shrinking by an annual rate of 1 percent, and is at its lowest point in more than a century."
• Anarcho-brat summer (if you're confused, read this):

Anarcho-brat flag flown at March on the DNC. pic.twitter.com/BFptgEUGa0

— Ford Fischer (@FordFischer) August 19, 2024

• "US job growth in the year through March was likely far less robust than initially estimated, which risks fueling concerns that the Federal Reserve is falling further behind the curve to lower interest rates," reports Bloomberg.
• Protests are still happening in Venezuela, where Nicolas Maduro has wrongly declared himself victorious in the latest presidential election (and refused to release results corroborating the outcome).
• On Friday, The San Francisco Standard published a piece titled "How ex-liberal billionaires Ben and Felicia Horowitz made a MAGA U-turn," which essentially spends a lot of words grappling with the idea that Felicia, a black woman, could not possibly authentically support former President Donald Trump, and that there must be some kind of mental derangement at play:

Wow, @micsolana nails it exactly. Amazing. @PirateWires for the win. pic.twitter.com/ikUrZrTJeZ

— benahorowitz.eth (@bhorowitz) August 19, 2024

The post All Aboard the Vasectomy Van appeared first on Reason.com.

[This is the seventh post in my series on my mission to Israel. You can read Parts I, II, III, IV, V, and VI.]

On the final day of our mission to Israel, we visited the headquarters of the IDF Spokesperson in Tel Aviv. This is the public affairs department of the Israeli military. We would attend a screening of surveillance footage of the October 7 attacks. This was a moment I had been thinking about since I agreed to go on the trip. Would I watch it? This descriptions in this post will be quite graphic, though I encourage you–for reasons that will be made clear at the end–to read on through.

The Holocaust and October 7 Happened

To this day, people deny the Holocaust happened. Some claim the entire Shoach is a fiction. Others claims that there was some murders, but the number of deaths was been greatly exaggerated. Others assert that the German government was not behind the mass exterminations. And so on. What is remarkable is that people hold these views in the face of mountains of evidence. The Nazis were quite proud of their efforts, and documented their systematic efforts to wipe the Jewish people off the map. If you haven't visited the Holocaust museums in Washington, D.C. or New York, you should. And if you went a long time ago, you should go again.

Still, when you visit these institutions, all of the photographs are black-and-white, and the videos are grainy. Though we know these accounts are real, watching them feels like watching a history movie. Nearly nine decades removed, they seem like a thing of the past. And Holocaust deniers insist that these sources are doctored or manufactured.

October 7, 2023, however, is still raw and fresh. And much like the Nazis before them, Hamas was proud of their barbarism. They recorded their acts of terror with body-cameras. They livestreamed murders–often on their victims' phones. They shared on social media photos and videos of horrific acts. All in high definition! There are already specters of October 7th denialism–perhaps the most egregious is that the Hamas terrorists did not commit rapes because their religion forbids it. I saw this claim repeated in the press, without any skepticism. But Hamas documented their own atrocities.

Should I Watch The Video?

In the wake of October 7, Israeli forces collected these photos and videos to document the horrors. Moreover, there were recordings by Israelis on dashboard cameras, doorbell cameras, and other surveillance systems. The Israeli government compiled these scenes into a single movie that stretches about fifty minutes. While many, if not most, of the individual clips can be found online, the compiled footage is kept under strict control. It is only exhibited at secure facilities to certain guests who are cleared.

Members of the Israeli military are not allowed to watch it. It is considered far too traumatic, and traumatizing for people who have lived through October 7. None of my family members in Israel had watched. They had no doubts about what happened on October 7, so why go through the pain of enduring the day again?  My Rabbi told me not to watch it. There is a teaching to not cause any shame for dead people. He asked if the people who had been murdered in those videos would want me to watch them in such a terrible state. These were all fair points.

I thought long and hard about whether I would watch it. Initially, on a personal level, I was inclined not to. I do not like horror movies. Generally, if there is any movie with blood or gore, I turn it off. I can't even watch medical programs that depict surgery and other procedures. I close my eyes when I get a shot or have dental work. Yes, I am quite squeamish. There is an expression that is far too overused–"You can't unsee this!" But it is very apt for the surveillance video. I knew that these fifty minutes of pure, uncensored barbarism would haunt me for the rest of my life.

What turned me was a presentation I saw by Judge Roy Altman, who led a mission to Israel for federal judges. Altman described, in graphic detail, what he saw. He has given this lecture in many places, and it is moving. After the lecture, I asked Altman point blank if he regretted watching the videos. On one level, he did, as these images would never leave him. But on a deeper level, watching these videos made his message that much more powerful. Having witnessed the savagery, he could now spread the message around the globe. And this is not a second-hand account. He watched the video with his own eyes. And he didn't simply scan through a few clips on social media. He endured the entire curated film, with no break, in an Israeli military facility.

Altman's explanation persuaded me to watch it. I routinely lecture at law schools and other venues throughout the country. This year, I plan to talk about Israel–if any law school is brave enough to host me. (So far only a few takers.) I intend to relay the medieval acts of terror I witnessed. Having personally seen these clips will allow me to speak to the issue in a way I simply could not have by reading about it. I regret that I personally had to endure the screening. (Although whatever minor inconvenience I had pales in comparison to the suffering that happened on October 7, and to this day.) And to this day, I cannot forget what I saw. I recently watched the Deadpool-Wolverine movie. In one scene, a character decapitates another character, and holds the head up like a trophy. The audience roared in gruesome laughter. I didn't. I saw an actual video of a Hamas terrorist hacking off an innocent person's head, stretching out the skin, and dangling the head by the scalp as the lifeless body lay on the ground. But this was the choice I made, and I think it was the right one.

Not everyone on our mission watched the video. Several members of our mission excused themselves from the room before the screening began. I fully understand their decision. Everyone can bear witness to atrocities in the way that works for them. Indeed, even going to Israel was a risk, as our safety could not be fully assured at all junctures.

The Screening

We would watch the movie in a military briefing room. This was not a cushy movie theater. We were seated in what looked like any law school classroom, with some large displays at the front of the room. There was a clock, which allowed us to keep track of time. I had to leave my phone in a locker outside, as recording was prohibited.

A female officer in the Spokesperson Unit gave a brief introduction. I understand that she is one of the few people in the military who has clearance to watch the video. I can't even fathom what trauma she endures by watching this video each and every day, as different delegations come through. She explained this was the twenty-third version of the video. Apparently, the earlier iterations were even more violent. They showed torture, including the cutting of breasts, a newborn who was shot in the head, and other acts of barbarism. Moreover, there was footage of genital mutilation. Some of the families objected. The faces on those clips were either blurred out, or the clips were removed altogether out of respect for the family. Just think that some video editor within the Israeli government had the harrowing task of winnowing down these clips.

The officer only gave a few preparatory remarks. One, that stuck with me, was how she described the terrorists. She used the word "glee." These were not soldiers who were performing a mission. They were not in any way struggling with their actions. They were joyful for having the chance to kill so many innocent Israelis. It was like they were playing a first-person shooter, but in real life. And they kept repeating one refrain over and over and over again. Allahu Akhbar. Allahu Akhbar. Allahu Akhbar. In almost every scene, the men repeated that phrase at the top of their lungs.

With those brief remarks, the officer started to play the video.

Scenes from the Video

It is difficult to describe in words what I saw. During the fifty-minute video, I sat in stunned silence, with each scene worse than the one before. At a few junctures, I had to close my eyes. When I opened them, I hoped the particular scene would be over, but it wasn't. Occasionally, I would look around the room at the fellow law professors. They all had the same looked of being stunned and mortified. Some closed their eyes. Others put their heads in their hands.

Immediately after the video finished, I started to write down in a notebook everything I could recall. I knew that the particulars would evanesce from my mind, even if the general gore would remain. What follows is a scattered list of my recollections. It does not have any sort of pattern or coherent flow, as the actual surveillance video had none. And it is entirely possible that some of these recollections are composites–a few different scenes were seared together in my memory. But I remember each of these tragic events occurred.

• There were pools of blood on the ground. In movies, blood looks bright red and shiny. but in reality, it is much darker, and quickly absorbs into the dirt. It looks brownish. If I didn't know what it was, I might think it was spilled motor oil.
• Bodies were burned alive in cars. The Hamas terrorists brought accelerant with them, and placed it on the tires and the hoods of the car, so they burned hotter, faster, and longer. One charred corpse was reaching out of the car, trying to escape, but never would. The scorched bodies reminded me of footage from the Holocaust. But unlike grainy footage at a Holocaust museum, these scenes were in full HD.
• One woman was murdered. The terrorists took her phone, and livestreamed it on her social media account. The woman's family learned of her death when she "went live"–something she apparently never did–and saw it in real time.
• A father finds his daughter's burned body. He screams in agony that it is not his daughter. Another woman said that those were the daughter's tattoos. The father refused to believe it. This young woman's legs were spread apart. She was not wearing any undergarments. There was blood between her legs.
• One Hamas terrorist was wearing a Palestinian flag on his body armor. All I could think of was those college students who wave the Palestinian flag around without having any clue what that flag represents.
• There was a radio call intercepted between a Hamas terrorist who entered Israel, and his commander back in Gaza. The commander ordered him to bring a body back to Gaza, and the people could play with the body parts in the square–like a Soccer game.
• There was footage of a bar, plastered with Coca-Cola signs. Many innocent people were hiding behind the bar, but they were shot and killed. Bodies were stacked one on top of another.
• People hid in dumpsters and port-a-potties. They were covered in garbage and feces when they were shot dead.
• One Hamas terrorist dragged a bleeding body from a bedroom all the way outside. The blood streaked across the floor, the entire way.
• A terrorist was piling dead bodies in a pickup truck. The Jewish tradition is to bury all human remains. Hamas knew this, and brought the corpses back to Gaza, so not even the dead could be buried.
• There was another intercepted radio call. A commander said that a captured Israel soldier should be hanged in a square.
• Bodies of captured hostages were paraded in Gaza. The Hamas terrorists actually had to protect the hostages to prevent them from being lynched. For many of these Israelis, their last time being outside was among these mobs.
• At the Nova music festival, young women had their genitals mutilated. They were bound and their clothes were pulled off. Understandably, rape kits were not performed under the circumstances. As a result, much of the evidence of rape was buried with these poor souls.
• Surveillance footage showed a dog approaching a terrorist. The dog looked friendly, and posed no threat. The terrorist shot the dog once. The dog huddled over but kept walking. Two shots, and the dog fell over, but was still moving. Three shots, and the dog died.
• A terrorist tried to decapitate a person. But he was using a dull garden hoe, so he couldn't cut through all the way. He kept hacking and hacking and hacking at the neck, but it didn't sever all the way. The head sort of flopped over, but was still connected. This sort of medieval barbarism belongs in a different millennium.
• It is early in the morning. A father and his two sons run from their bedrooms into the living room. The boys (about 7 and 9 years old) are still wearing their underwear. They run into a bomb shelter in their backyard. These shelters are meant to protect people from explosions, but are not locked. Several terrorists throw a grenade into the shelter. It explodes. The surmise is that the father jumped on the grenade. He died.The terrorists bring both of the boys into the backyard and are yelling at them. The boys are then left alone in the living room. One boy says, "I think we are going to die." The other says, "Dad is dead." One of the boy's eye is bleeding. The brother asks if he can see out of that eye. He cannot. They are sitting there, crying, unsure of what to do. Somehow, they manage to escape and run to a cousin's house and survived. The boy would lose his eye. Later, the mother would come home and see the shelter, and her husband's corpse. The agony on her face was heart wrenching.
• Hamas terrorists enter a kindergarten. There are posters of Queen Elsa from Frozen, which is one of my daughters' favorite movies. Another corpse of a young child is shown wearing Mickey Mouse pajamas, which were stained with blood.
• Hamas terrorists were setting a house on fire after killing the occupants. They used accelerants to make the fire burn hotter. One shouted "burn it down." The symbolism was clearly intended to invoke the Holocaust. There was shattered glass everywhere, which invoked Kristallnacht.
• I've seen countless movies where a person is shot. Usually, the person who is shot stumbles, falls, and moves around a bit afterwards. The dying is very dramatic. In reality, a person shot at close range in cold blood immediately drops and dies almost instantaneously.
• One terrorist repeated over and over again "This is for history" and "We are heroes." They truly believed they were making history, and they would be remembered as heroes. But not in the way they intended.
• In another video, the decapitation was successful. After many cuts, the head was fully severed off. The skin sort of draped over the neck. It reminded me of the stretch-faced characters from Beetlejuice.  And like in the Deadpool movie, the terrorist held up the head by the hair, as if it was a trophy. The lifeless body was bent on his knees. Hamas social media uploaded a photo of that headless body. During the decapitation. I kept closing my eyes, hoping the scene would be over, but it wasn't. It continued on and on.
• There was a burned head that was severed in half. The teeth were burned. It looked like a mummy from ancient Egypt.
• The IDF intercepted a voice call between a Hamas terrorist and his parents in Gaza. The son told his father, beaming with pride, that he killed 10 Jews with his bare hands. He kept telling his father to check his Whatsapp. (Someone should tell him who the founder of Meta is.) Then he says, "I want to talk to mom." As if he got a sterling report card. His mother was so proud. She said "Praise to god" and "Kill, Kill, Kill."

The Aftermath

The video concluded abruptly, without any notice. It was over. We were then given a short break. I was stunned. I walked out into the courtyard for some fresh air. A fellow law professor was crying on the ground. I gave him a hug, even though I felt about the same.

We were brought back into the classroom to discuss what we had witnessed. I didn't have many words. All I could think of was asking how the officer was able to watch this video day-in and day-out.

After the presentation, we had a briefing from some IDF military lawyers (MAG). I wrote about some of what I learned from the military lawyers here. In truth, I was pretty distracted, but I tried to pay attention as closely as I could. It amazed me that knowing how horrific these atrocities were, the military lawyers could still be so committed to these international institutions that treat Israel so unfairly.

Afterwards, we went to lunch with several of the soldiers from the Public Spokesperson division. One of them, Oriyah Solomon, was an Orthodox female who recently was married. Until recently, there was no obligation for observant Jews to serve, and certainly no expectation that "frum" women would serve. But she volunteered, in part to demonstrate that other religious women can serve their countries. I found her message inspiring.

Who Should Watch This Video?

Israel has not released this video to the general public. The fear is that if it is released, it would make a splash for a short period, and then quickly be forgotten. And, in turn, it would cheapen the atrocities. Some may actually valorize the killers, and it could be used as propaganda. Frankly, I do not think most people would have the stomach, or motivation to sit through the full hour of footage. They may watch a brief clip, and then shut it down. There was something meaningful in watching the clips at a secure facility, in a room full of interested people, with a military chaperone. I would never forget it.

The post Mission to Israel Part VII: The Surveillance Video appeared first on Reason.com.

If good intentions created good laws, there would be no need for congressional debate.

I have no doubt the authors of this bill genuinely want to protect children, but the bill they've written promises to be a Pandora's box of unintended consequences.

The Kids Online Safety Act, known as KOSA, would impose an unprecedented duty of care on internet platforms to mitigate certain harms associated with mental health, such as anxiety, depression, and eating disorders.

While proponents of the bill claim that the bill is not designed to regulate content, imposing a duty of care on internet platforms associated with mental health can only lead to one outcome: the stifling of First Amendment–protected speech.

Today's children live in a world far different from the one I grew up in and I'm the first in line to tell kids to go outside and "touch grass."

With the internet, today's children have the world at their fingertips. That can be a good thing—just about any question can be answered by finding a scholarly article or how-to video with a simple search.

While doctors' and therapists' offices close at night and on weekends, support groups are available 24 hours a day, 7 days a week, for people who share similar concerns or have had the same health problems. People can connect, share information, and help each other more easily than ever before. That is the beauty of technological progress.

But the world can also be an ugly place. Like any other tool, the internet can be misused, and parents must be vigilant in protecting their kids online.

It is perhaps understandable that those in the Senate might seek a government solution to protect children from any harms that may result from spending too much time on the internet. But before we impose a drastic, first-of-its-kind legal duty on online platforms, we should ensure that the positive aspects of the internet are preserved. That means we have to ensure that First Amendment rights are protected and that these platforms are provided with clear rules so that they can comply with the law.

Unfortunately, this bill fails to do that in almost every respect.

As currently written, the bill is far too vague, and many of its key provisions are completely undefined.

The bill effectively empowers the Federal Trade Commission (FTC) to regulate content that might affect mental health, yet KOSA does not explicitly define the term "mental health disorder." Instead, it references the fifth edition of the Diagnostic and Statistical Manual of Mental Health Disorders…or "the most current successor edition."

Written that way, not only would someone looking at the law not know what the definition is, but even more concerning, the definition could change without any input from Congress whatsoever.

The scope of one of the most expansive pieces of federal tech legislation could drastically change overnight, and Congress may not even realize it until after it already happened. None of the people's representatives should be comfortable with a definition that effectively delegates Congress's legislative authority to an unaccountable third party.

Second, the bill would impose an unprecedented duty of care on internet platforms to mitigate certain harms, such as anxiety, depression, and eating disorders. But the legislation does not define what is considered harmful to minors, and everyone will have a different belief as to what causes harm, much less how online platforms should go about protecting minors from that harm.

The sponsors of this bill will tell you that they have no desire to regulate content. But the requirement that platforms mitigate undefined harms belies the bill's effect to regulate online content. Imposing a "duty of care" on online platforms to mitigate harms associated with mental health can only lead to one outcome: the stifling of constitutionally protected speech.

For example, if an online service uses infinite scrolling to promote Shakespeare's works, or algebra problems, or the history of the Roman Empire, would any lawmaker consider that harmful?

I doubt it. And that is because website design does not cause harm. It is content, not design, that this bill will regulate.

Last year, Harvard Medical School's magazine published a story entitled "Climate Anxiety; The Existential Threat Posed by Climate Change is Deeply Troubling to Many Young People." That article mentioned that among a "cohort of more than 10,000 people between the ages of 16 and 25, 60 percent described themselves as very worried about the climate and nearly half said the anxiety affects their daily functioning."

The world's most well-known climate activist, Greta Thunberg, famously suffers from climate anxiety. Should platforms stop her from seeing climate-related content because of that?

Under this bill, Greta Thunberg would have been considered a minor and she could have been deprived from engaging online in the debates that made her famous.

Anxiety and eating disorders are two of the undefined harms that this bill expects internet platforms to prevent and mitigate. Are those sites going to allow discussion and debate about the climate? Are they even going to allow discussion about a person's story overcoming an eating disorder? No. Instead, they are going to censor themselves, and users, rather than risk liability.

Would pictures of thin models be tolerated, lest it result in eating disorders for people who see them? What about violent images from war? Should we silence discussions about gun rights because it might cause some people anxiety?

What of online discussion of sexuality? Would pro-gay or anti-gay discussion cause anxiety in teenagers?

What about pro-life messaging? Could pro-life discussions cause anxiety in teenage mothers considering abortion?

In truth, this bill opens the door to nearly limitless content regulation, as people can and will argue that almost any piece of content could contribute to some form of mental health disorder.

In addition, financial concerns may cause online forums to eliminate anxiety-inducing content for all users, regardless of age, if the expense of policing teenage users is prohibitive.

This bill does not merely regulate the internet; it threatens to silence important and diverse discussions that are essential to a free society.

And who is empowered to help make these decisions? That task is entrusted to a newly established speech police. This bill would create a Kids Online Safety Council to help the government decide what constitutes harm to minors and what platforms should have to do to address that harm. These are the types of decisions that should be made by parents and families, not unelected bureaucrats serving as a Censorship Committee.

Those are not the only deficiencies of this bill. The bill seeks to protect minors from beer and gambling ads on certain online platforms, such as Facebook or Hulu. But if those same minors watch the Super Bowl or the PGA tour on TV, they would see those exact same ads.

Does that make any sense? Should we prevent online platforms from showing kids the same content they can and do see on TV every day? Should sports viewership be effectively relegated to the pre-internet age?

And even if it were possible to shield minors from every piece of content that might cause anxiety, depression, or eating disorders, that is still not enough to comply with the KOSA. That is because KOSA requires websites to treat differently individuals that the platform knows or should know are minors.

That means that media platforms who earnestly try to comply with the law could be punished because the government thinks it "should" have known a user was a minor.

This bill, then, does not just apply to minors. A should-have-known standard means that KOSA is an internet-wide regulation, which effectively means that the only way to comply with the law is for platforms to verify ages.

So adults and minors alike better get comfortable with providing a form of ID every time they go online. This knowledge standard destroys the notion of internet privacy.

I've raised several questions about this bill. But no one, not even the sponsors of the legislation, can answer those questions honestly, because they do not know the answer. They do not know how overzealous regulators or state attorneys general will enforce the provisions in this bill. They do not know what rules the FTC may come up with to enforce its provisions.

The inability to answer those questions is the result of several vague provisions of this bill, and once enacted into law, those questions will not be answered by the elected representatives in Congress, they will be answered by bureaucrats who are likely to empower themselves at the expense of our First Amendment rights.

There are good reasons to think that the courts will strike down this bill. They would have a host of reasons to do so. Vagueness pervades this bill. The most meaningful terms are undefined, making compliance with the bill nearly impossible. Even if we discount the many and obvious First Amendment violations inherent in this bill, the courts will likely find this bill void for vagueness.

But we should not rely on the courts to save America from this poorly drafted bill. The Senate should have rejected KOSA and forced the sponsors to at least provide greater clarity in their bill. The Senate, however, was dedicated to passing a KOSA despite its deficiencies.

KOSA contains too many flaws for any one amendment to fix the legislation entirely. But the Senate should have tackled the most glaring problem with KOSA—that it will silence political, social, and religious speech.

My amendment merely stated that no regulations made under KOSA shall apply to political, social, or religious speech. My amendment was intended to address the legitimate concern that this bill threatens free speech online. If the supporters of this legislation really do want to leave content alone, they would have welcomed and supported my amendment to protect political, social, and religious speech.

But that is not what happened. The sponsors of the bill blocked my amendment from consideration and the Senate was prohibited from taking a vote to protect speech.

That should be a lesson about KOSA. The sponsors did not just silence debate in the Senate. Their bill will silence the American people.

KOSA is a Trojan horse. It purports to protect our children by claiming limitless ability to regulate speech and depriving them of the benefits of the internet, which include engaging with like-minded individuals, expressing themselves freely, as well as participating in debates among others with different opinions.

Opposition to this bill is bipartisan, from advocates on the right to the left.

A pro-life organization, Students for Life Action, commented on KOSA, stating, "Once again, a piece of federal legislation with broad powers and vague definitions threatens pro-life speech…those targeted by a weaponized federal government will almost always include pro-life Americans, defending mothers and their children—born and preborn."

Student for Life Action concluded its statement by stating: "Already the pro-life generation faces discrimination, de-platforming, and short and long term bans on social media on the whims of others. Students for Life Action calls for a No vote on KOSA to prevent viewpoint discrimination from becoming federal policy at the FTC."

The ACLU brought more than 300 high school students to Capitol Hill to urge Congress to vote no on KOSA because, to quote the ACLU, "it would give the government the power to decide what content is dangerous to young people, enabling censorship and endangering access to important resources, like gender identity support, mental health materials, and reproductive healthcare."

Government mandates and censorship will not protect children online. The internet may pose new problems, but there is an age-old solution to this issue. Free minds and parental guidance are the best means to protect our children online.

The post Censoring the Internet Won't Protect Kids appeared first on Reason.com.

8/20/1866: President Andrew Johnson proclaims an "end to insurrection in the United States."

The post Today in Supreme Court History: August 20, 1866 appeared first on Reason.com.

The Fourth Amendment guarantees that every person shall be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." This means government agents cannot enter your home or rifle through your stuff without a warrant, signed by a judge and based on probable cause. That right extends to the digital sphere: The Supreme Court ruled in 2018's Carpenter v. United States that the government must have a warrant to track people's movements through their cellphone data.

But governments are increasingly circumventing these protections by using taxpayer dollars to pay private companies to spy on citizens. Government agencies have found many creative and enterprising ways to skirt the Fourth Amendment.

Cellphones generate reams of information about us even when they're just in our pockets, including revealing our geographical locations—information that is then sold by third-party brokers. In 2017 and 2018, the IRS Criminal Investigation unit (IRS CI) purchased access to a commercial database containing geolocation data from millions of Americans' cellphones. A spokesman said IRS CI only used the data for "significant money-laundering, cyber, drug and organized-crime cases" and 
terminated the contract when it failed to yield any useful leads.

During the same time period, U.S. Immigration and Customs Enforcement (ICE) paid more than $1 million for access to cellphone geolocation databases in an attempt to detect undocumented immigrants entering the country. The Wall Street Journal reported that ICE had used this information to identify and arrest migrants.

In the midst of the COVID-19 pandemic, the Centers for Disease Control and Prevention spent $420,000 on location data in order to track "compliance" with "movement restrictions," such as curfews, as well as to "track patterns of those visiting K-12 schools."

The Defense Intelligence Agency (DIA) admitted in a January 2021 memo that it purchases "commercially available geolocation metadata aggregated from smartphones" and that it had searched the database for Americans' movement histories "five times in the past two-and-a-half years." The memo further stipulated that "DIA does not construe the Carpenter decision to require a judicial warrant endorsing purchase or use of commercially
available data for intelligence purposes."

Even in the physical world, governments have contracted out their spying. The Drug Enforcement Administration (DEA) spent millions of dollars paying employees at private companies and government agencies for personal information that would otherwise require a warrant. This included paying an administrator at a private parcel delivery service to search people's packages and send them to the DEA, and paying an Amtrak official for travel reservation information. In the latter case, the DEA already had an agreement in place under which Amtrak Police would provide that information for free, but the agency instead spent $850,000 over two decades paying somebody off.

It seems the only thing more enterprising than a government agent with a warrant is a government agent without one.

The post The Feds Are Skirting the Fourth Amendment by Buying Data appeared first on Reason.com.

In Buffalo, New York, city officials say they will pause efforts to collect amusement license fees from local music venues. A law allowing the city to collect the fees has been on the books since 1927, but the city only began attempting to collect the money earlier this month. The fees are charged per event, based on the price of tickets. Some venue owners told local media the fees could cost them $10,000 to $25,000 a year, and larger venues said the fees could cost them as much as $100,000. Some city council members said they were caught off guard by the move to collect the fees and plan to address the issue when the council meets again in September.

The post Brickbat: We Are Not Amused appeared first on Reason.com.

Donald Trump oversaw some scary moments in international politics. The former president seriously escalated tensions with North Korea and Iran, leading to several war scares. But he pulled back from the brink, sometimes against the wishes of his more hawkish advisers. He avoided a direct U.S.-Iranian war and opened a direct line of communication with North Korea.

Democrats seem to wish he'd gone to war instead. The Democratic National Committee's 2024 platform, approved in a symbolic vote on Monday night, tries to outhawk Trump, denouncing his "fecklessness" on Iran and his "love letters" to North Korea. Although the platform condemns Trump for pulling out of diplomacy with Iran, it also attacks his decisions not to bomb Iran at several crucial points.

Ironically, the Democratic platform is not much different from Republicans' own attacks on the Biden administration. Each side accuses the other of weakness, and neither wants to take credit for diplomacy or own the compromises necessary to avoid war.

It's easy to forget now, but in 2017 the Korean peninsula had become a remarkably tense place. North Korea was testing nuclear weapons and intercontinental ballistic missiles capable of hitting U.S. soil. The U.S. military was massing forces in the region, and Trump was issuing threats.

Trump's national security adviser, H.R. McMaster, reportedly called for a military attack aimed at giving North Korea a "bloody nose." McMaster and Sen. Lindsey Graham (R–S.C.) publicly warned that war might be inevitable.

And then, in January 2018, a false alarm drove home the lesson that nuclear war is nothing to play around with. During a disaster preparedness drill, authorities in Hawaii accidentally sent an alert about an incoming ballistic missile. For more than half an hour, Hawaiians and tourists were convinced that they were going to die in a nuclear war.

A few months later, McMaster was out of the White House. Trump accepted an invitation to meet with North Korean leader Kim Jong Un in June 2018. Trump met Kim again in February 2019. Stepping over the North Korean–South Korean border in June 2019, Trump became the first U.S. president to visit North Korea.

The meetings failed to secure a permanent agreement—it didn't help that McMaster's replacement, John Bolton, publicly hinted that denuclearization would end in Kim's violent death—but they bought some crucial breathing room.

The Democrats' 2024 platform attacks the very idea of talks with North Korea. Trump's approach, the platform says, was "embarrassing the United States on the world stage including by flattering and legitimizing Kim Jong Un, exchanging 'love letters' with the North Korean dictator."

This isn't a break with past Democratic rhetoric. During the presidential debates in 2019, then-candidate Joe Biden said that Trump gave "North Korea everything they wanted, creating the legitimacy by having a meeting with Kim Jong Un." Another candidate, Kamala Harris, said that there are "no concessions to be made. He has traded a photo op for nothing."

If even talking to North Korea is a "concession," then it's hard to see what alternative Harris would accept, other than continuing to barrel towards nuclear war.

Iran, unlike North Korea, does not have nuclear weapons. In 2017, Trump tore up an international agreement that regulated Iranian nuclear activities, instead betting on a "maximum pressure" campaign designed to overthrow the Iranian government by cutting off its oil exports. Bolton later said in his memoir that "only regime change would ultimately prevent Iran from possessing nuclear weapons," and then–Secretary of State Mike Pompeo was obsessed with killing the Iranian general Qassem Soleimani.

The Iranian government did not react warmly to the maximum pressure campaign. Iranian forces encouraged rocket attacks on U.S. bases in Iraq, and Iran is believed to be behind sabotage attacks on the international oil industry, including a September 2019 drone strike on Saudi oil infrastructure.

The U.S. military massed forces off the coast of Iran during this time. On June 19, 2019, Iran shot down an American surveillance drone. (The two countries disagree on whether the drone was in Iranian airspace.) Trump ordered a bombing raid on Iranian air defense batteries, then pulled back at the last minute, because killing Iranian troops was "not proportionate to shooting down an unmanned drone."

Although the Democratic platform calls maximum pressure a "reckless and short-sighted decision," it also attacks Trump for failing to hit Iran back at each of these points. "Trump's only response" to an Iraqi militia attack on the U.S. consulate in Basra "was to close our diplomatic facility," the Democrats complain, and "Trump failed to respond against Iran or its proxies" for the attack on Saudi oil facilities.

The platform is somewhat ambiguous on whether Trump should have bombed Iran in June 2019. "Trump responded by tweet and then abruptly called off any actual retaliation, causing confusion and concern among his own national security team," it says. Perhaps putting American lives at risk to avenge the honor of a robot would be too far even for the Biden team.

Maximum pressure reached its climax in January 2020, when Trump followed Pompeo's advice and ordered the military to assassinate Soleimani. Iran responded by launching 12 ballistic missiles at a U.S. base in Iraq, which injured Americans but did not kill anyone. Trump called it even, claiming that "Iran appears to be standing down, which is a good thing for all parties concerned."

At the time, Democrats were highly critical of the decision to risk war by killing an Iranian officer. "Trump just tossed a stick of dynamite into a tinderbox," Biden wrote right after Soleimani was assassinated. After the Iranian retaliation, Democrats immediately put forward a war powers resolution making it clear that the president does not have the authority to start a war with Iran.

The current Democratic platform takes a different tone. When "Iran, for the first and only time in its history, directly launched ballistic missiles against U.S. troops," the document declares disapprovingly, Trump "again took no action." The platform criticizes Trump for making light of U.S. troops' brain injuries without mentioning the assassination that prompted the Iranian attacks in the first place.

After all, it would be hard for Biden to criticize Trump for bringing America to the brink of war in the Middle East when he has done the same.

After four short years of a Democratic administration, the mood among Democratic leaders has gotten more hawkish, especially as the defense of Ukraine gives them a "good war" to rally behind. But that's not necessarily how the American people, including Democratic voters, feel. Direct talks with North Korea are still popular, and direct war with Iran is still unpopular. Republicans and independents are less likely to call themselves hawks than in 2014, and even Democratic voters are only one percentage point more likely to consider themselves hawkish than before.

There is a public appetite for diplomacy and deescalation. But party leaders don't seem to want to take the opportunity. They would prefer to fight over who can outhawk whom.

The post Democratic Platform Attacks Trump for Not Going to War appeared first on Reason.com.

In this week's The Reason Roundtable, editors Peter Suderman, Katherine Mangu-Ward, and Nick Gillespie welcome special guest Ben Dreyfuss onto the pod ahead of this week's Democratic National Convention in Chicago to talk about Kamala Harris' truly terrible economic policy proposals.

02:48—Dreyfuss' YIMBY conversion thanks to Reason

13:20—Harris drops some lousy economic policy ideas.

32:37—The DNC begins.

44:25—Weekly Listener Question

53:33—Tariffs are timeless.

1:03:32—This week's cultural recommendations

Mentioned in this podcast:

"Kamala Harris' Dishonest and Stupid Price Control Proposal," by J.D. Tuccille

"DNC Readies for Protesters," by Liz Wolfe

"Harris' Economic Illiteracy," by Liz Wolfe

"Harris Joins the FTC's Food Fight Against Kroger-Albertsons Merger," by C. Jarrett Dieterle

"The times demand serious economic ideas. Harris supplies gimmicks." by the Washington Post editorial board

The price tag of @KamalaHarris's big, bold economic plan? According to penny pinchers at @BudgetHawks, a mere $1.7 to $2 trillion over the next decade. Given that gross debt is $35 trillion, maybe it's time to tap the brakes a bit?https://t.co/qA5wFJleLw pic.twitter.com/q80MwxoRD9

— Nick Gillespie (@nickgillespie) August 16, 2024

"When your opponent calls you 'communist,' maybe don't propose price controls?" Catherine Rampell

"How did Doug Emhoff hear Biden was out? After taking a SoulCycle class in WeHo. Without his phone," by Kevin Rector

"Database Nation: The Upside of 'Zero Privacy,'" by Declan Mccullagh

"Alien: Romulus Is a Slick, Empty Franchise Pastiche," by Peter Suderman

The Calm Down Substack by Ben Dreyfuss

https://x.com/nickgillespie/status/1824430467191312525

"Sing for Change Obama"

Upcoming Events:

• "Is the American Dream Alive?" A Free Press debate with Katherine Mangu-Ward on Tuesday, September 10 in Washington, D.C.
• "Reason Speakeasy: Kat Timpf & Nick Gillespie" on Wednesday, September 11 in New York

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 Why Libertarians Hate Kamala Harris' Economic Platform appeared first on Reason.com.

Depending on how you feel about protesters, there's good news or bad news about the estimated number expected to converge on Chicago this week for the 2024 Democratic National Convention: 30,000. Either way, you would not be faulted for thinking the number is possibly aspirational, based on the fewer than 50 who showed up yesterday for an outdoor event and press conference organized by the Coalition to March on the Democratic National Convention.

"Almost 270 organizations from across the U.S. have joined the Coalition to March on the DNC. And tens of thousands will be out on the streets starting tomorrow," Hatem Abudayyeh, coalition spokesperson and U.S. Palestinian Community Network national chair, told the assembled, who politely took notes and asked him to repeat the marching schedule. They nodded in commiseration at the city's "approved march route," a 1.1-mile stretch that threatened to become a human parking lot and did not take marchers past the United Center, where the DNC is taking place.

"Which means that the thousands do not get their First Amendment rights upheld," he said. "They do not get to be within sight and sound [of United Center] to say, end Israeli occupation, end U.S. aid for Israel, end U.S. support of the genocide."

Abudayyeh vowed to keep pressure on the city until the very last minute, hoping that after months of legal wrangling, it would allow the 2.4-mile route they had originally hoped for. It sounded rather self-limiting and not perhaps in the spirit of the protests that have roiled the country since October 7, a refashioning perhaps of rage into something potentially more politically expedient.

There was no rage at yesterday's event, no black hoodies or keffiyeh-shrouded faces, no shouting or snapping when Faayani Aboma Mijana, a spokesperson for the coalition, cited the "horrific genocide of Palestinians that's being aided and abetted by the Democratic leadership and its representatives, Genocide Joe Biden, Killer Kamala Harris, Baby Killer Blinken." Even when Mijana enjoined the crowd to chant "From the river to the sea, Palestine will be free," the response was muted.

Maybe it was activism fatigue. Maybe the long run-up to the convention—the march had been in the planning stages since before October 7—had sapped some spontaneity. Maybe the multifariousness of those looking to coalesce under the coalition's umbrella—Abudayyeh mentioned "the Black Liberation Movement and the Immigrant Rights Movement and the Women's Rights Movement and the LGBTQ Movement and the Workers' Rights Movement and the Reproductive Rights Movement"—rendered the movement more PTA, less punk rock.

Not that the event was without anger. Mijana, an organizer also for the Chicago Alliance Against Racist and Political Repression, was especially critical of the Chicago Police Department, claiming that "the same Israeli occupation forces that are committing the genocide in Gaza, train police departments like the Chicago Police Department, who then implement the offensive tactics they learn onto our communities."

Still, no one anticipated any violence and certainly would not be participating in it. "We intend to have a family-friendly, peaceful march," Mijana told me. "That's why we're fighting for the permits, because we know that will keep the police away from us and allow us to march on our own with our own people."

But any movement of size creates a collective effervescence that can spill over and attract people outside the cause, including bad actors and those seeking a perverse type of heroism. This was evident when James Alex Fields Jr. drove his car into a group of counter-protesters during a 2017 "Unite the Right" protest in Charlottesville, killing Heather Heyer, and when Michael Reinoehl, in an effort to prove his commitment to Black Lives Matter, shot Jay Danielson point blank during a 2020 protest in Portland. 

This suggests DNC protesters might welcome some police protection, if only for themselves.

"I'm from Minneapolis, so I know a little something about some mayhem," said Jess Sundin, of the Twin Cities Coalition for Justice. "Every time I've seen that on any significant scale, it's been police attacking demonstrators, is what starts it. I am not trying to be dismissive, but my experience is that if the police refrain from using violence against the demonstration, we won't see any sort of significant no mayhem, no significant outbreaks of drama."

Perhaps. And if Sunday's event was a foretaste, the protests will be disciplined, even mild. But I wouldn't count on it.

The post Muted Outrage and Aspirational Crowds: Dispatch From the DNC  appeared first on Reason.com.

Each year, the Edmondson Community Organization (ECO)—a nonprofit in Baltimore dedicated to revitalizing the city's Midtown-Edmondson area—reviews an obscure list of properties released by the government. The task is to see how many are situated within the organization's neighborhood boundaries. The fewer, the better.

The owners of the properties that do appear have fallen behind on their property taxes and, as a result, are poised to lose their real estate in an annual tax sale conducted by the government. After poring over the list, the ECO knocks on those doors to deliver the queasy news and alert the occupants to what is about to happen.

The issue is one ECO knows intimately. A few years back, the organization accrued a $2,543 property tax debt on its community center. So in 2018, the city sold that lien for $5,115 to a California-based investor, who then foreclosed on and sold the ECO's building for $139,500. In return, the ECO got a check for the difference between its debt and the lien purchase price: $2,572.

In other words, all told, the organization paid six figures to compensate for the $2,543 it owed the government, in what a new federal lawsuit alleges is a pervasive practice in Baltimore that illegally deprives people of their equity in violation of the Fifth Amendment's Taking Clause as the city attempts to satisfy modest tax debts.

Every spring, Baltimore bureaucrats conduct a mass auction online to sell off liens like the ECO's. Sometimes the unlucky debtors have fallen just hundreds of dollars behind on their taxes.

For that, they may lose their property and the vast majority of equity tied up in it. Following an investor's purchase, an owner has a certain period to satisfy the amount of the lien, along with interest and fees, to keep their property. That's a tall order when considering these parties were struggling to pay the original debt, much less the new total, which has since ballooned. In the case that debtors are unsuccessful, the investor has effectively purchased the property for the amount they paid for the lien.

In the ECO's case, that meant an investor bought their building for about 2,600 percent less than what it ultimately sold for. The ECO, in turn, was left with a fraction of what their property was worth.

That Baltimore's process robs property owners of huge chunks of equity is not just a regrettable side effect, the ECO's lawsuit alleges; it's baked into the nature of the city's approach. "The City understands there that there is a finite pot of investor capital available to purchase all the liens," reads the complaint. "This creates a perverse incentive for the City to minimize the winning bids"—a.k.a. to depress prices—"to spread that finite pot across the highest number of liens." 

Some of the moving parts of Baltimore's approach do seem to imply that the government is not merely unconcerned with owners retaining some of their equity but that they are actively seeking to keep bids low. The more glaring examples included in the ECO's suit show that the city charges a high-bid premium that punishes investors making offers above a certain threshold and opts to fulfill the law's advertising requirement in part by listing properties in The Daily Record, a business and legal newspaper that is not targeted at the general community. (The ECO says this violates state law, which stipulates that such a sale must be advertised twice in general-circulation newspapers.)

"There's a limited amount of investor money out there," says Maryland Legal Aid's chief legal and advocacy director Somil Trivedi, who is representing the ECO, "and the city has structured a system to spread that money across as many liens as possible instead of getting as much equity back for their citizens."

The ECO is not alone, according to the suit, but is one of many victims. You don't have to travel far to find others. "In the same tax sale in which a bidder purchased a lien on ECO's building, 68 properties in Midtown-Edmondson were also subject to the tax sale," states its complaint. "The winning bids on those properties totaled only 22% of the assessed value of the properties—a dramatic loss of generational wealth for the owner of each Midtown-Edmondson property that was lost in the sale."

Home equity theft, as it's sometimes called, was once an obscure issue limited to discussion in magazines like this one. But last year it took the national stage when the Supreme Court ruled unanimously in Tyler v. Hennepin County that a local government had violated the Constitution when it seized an elderly woman's condo over a modest tax debt, sold it, and kept the profit. Geraldine Tyler, the plaintiff in that suit, had fallen $2,300 behind on her taxes, which ultimately reached $15,000 after Hennepin County tacked on penalties, interest, and fees. The government then sold the condo for $40,000 and kept the additional $25,000.

While the ECO's situation isn't entirely analogous to Tyler's—the organization was paid something—Baltimore's scheme could still very well be unconstitutional, says Christina M. Martin, a senior attorney at Pacific Legal Foundation who represented Tyler before the Supreme Court. "If the procedure that you're using to sell the property is designed in a totally unreasonable manner, then obviously people are going to still get robbed of more than what they owe," she tells me. "There's a longstanding history of courts overturning sales that have a shocking result like [the ECO's]."

Tyler, in theory, should have put an end to stories like these. But the lawsuit out of Baltimore comes as some other jurisdictions have devised creative ways to comply with the law on its face but not really in practice. After Michigan's Supreme Court ruled the practice unconstitutional, for example, the state passed a convoluted debt collection statute that requires owners to complete a Herculean legal obstacle course to reclaim their equity. It is a difficult course to win.

"It is the government's choice in the first place to collect property taxes, to decide what regime they want to use to enforce the collection of those property taxes, and so it can't then complain that the regime that it chose to engage in for an amount of money that it chooses to collect is then too difficult to do constitutionally," says Trivedi. "There are lots of jurisdictions around the country that do it differently. Some don't even have tax sales. Some have much longer periods of negotiation and payment plans….Municipalities around the country have figured out ways to collect taxes without doing it unconstitutionally."

The post Baltimore's Tax Sales Are Robbing People of Their Equity appeared first on Reason.com.

A few years ago, Roseberline Turenne, an 18-year-old aide at a Maryland day care center, used her cellphone to take photographs showing "the naked genitals and pubic areas" of eight little girls. Seven of the girls were lying on changing tables, while the eighth was standing in a bathroom. Turenne later claimed she was documenting preexisting diaper rashes, lest she be blamed for allowing them to develop while the girls were in her care.

Turenne was fired after the pictures were discovered because they violated the day care center's policies, which prohibited staff members from photographing children. She also was charged with eight counts each of child sexual abuse, production of child pornography, and possession of child pornography.

Discounting Turenne's explanation of her motive for taking the pictures, a jury convicted her on all 24 counts, resulting in a 126-year prison sentence. Last Friday, the Maryland Supreme Court upheld Turenne's convictions, concluding that the jury reasonably rejected her account, that her conduct met the elements of the three crimes, and that "the evidence was sufficient for the jury to conclude that Ms. Turenne took the photos of the children for the purpose of sexual gratification."

Although Turenne's astonishingly severe sentence was not at issue in this appeal, it vividly illustrates how laws related to child pornography can generate penalties that make little sense. Even if you join the jurors, the intermediate appeals court, and the Maryland Supreme Court in disbelieving her account of why she took the pictures, she did not share them with anyone, and she was not accused of assaulting the girls. Yet under Maryland law, Turenne will have to serve at least a quarter of her 126-year sentence—nearly 32 years—before she is eligible for parole.

People convicted of violent crimes in Maryland have to serve at least half of their sentences before they are eligible for parole. But someone who was convicted of voluntary manslaughter and received the maximum 10-year sentence still would have a shot at parole after five years. Even someone convicted of first-degree rape, which triggers a mandatory 25-year minimum, could end up serving less time than Turenne faces for noncontact offenses that consisted of nothing more than taking pictures.

That reality is especially troubling because it is not clear that Turenne committed the crimes with which she was charged. Just four out of seven justices agreed that all of her convictions were valid. In a partial dissent joined by Justice Brynja Booth, Chief Justice Matthew Fader concluded that there was insufficient evidence to convict Turenne of producing and possessing child pornography. Justice Shirley Watts concurred, and she filed a separate dissent arguing that Turenne's sexual abuse convictions also should be overturned.

As relevant here, Maryland law defines child pornography as a "visual representation" that "depicts a minor engaged as a subject…in sexual conduct," which includes the "lascivious exhibition of the genitals or pubic area of any person." Although the statute does not define "lascivious exhibition," the Maryland Supreme Court settled on a "content-plus-context" test for determining "whether the image is objectively sexual in nature."

The production and possession charges, in other words, did not hinge on Turenne's personal motivation. In concluding that Turenne's pictures were "objectively sexual," the majority noted that "all eight girls were partially or fully nude," that "all had nude genitals and pubic areas on display," that "none of the children's faces are visible in the photographs," that the picture "were all very similar to one another," and that several girls were in "poses that resemble what one might see in some adult pornography: the subject on her back, her legs spread, displaying her genitals."

Fader agreed with the test used by his colleagues but argued that they misapplied it. "I would conclude that none of the eight photographs at issue depicts a 'lascivious exhibition of the genitals,'" he writes. "Seven of the photographs depict a child on a diaper-changing table, naked, in a position that is fully consistent with a child having her diaper changed. The final picture depicts a child in a standing position in a bathroom, naked from sternum to the knees. None of the children are posed in anything resembling a sexual position. There are no other people in any of the photographs, nor are there any objects that are sexual in nature or that change the nature of the images from children getting diaper changes to anything objectively sexual."

Although "the framing of the photographs is a relevant consideration," Fader says, "the
framing here still makes clear that the pictures are of children during the process of a diaper change." And contrary to the majority's claim that the girls' "poses" are reminiscent of adult pornography, he adds, "the children are situated in the midst of diaper changes—a perfectly ordinary, nonsexual event—not posed in sexual positions. That an image of an adult posed in a similar manner might be viewed as an objectively sexual image—perhaps viewed as sexual because the position is unnatural for an adult in the ordinary course of a day, or perhaps just because of anatomical development—is irrelevant, because these are images of infants, not adults."

Fader says other "contextual elements" cited by the majority—including the photos' similarity to each other, the fact that "they were all taken at a daycare center," the fact that "they were all taken in the center's bathroom, where Ms. Turenne was secluded," her initial statement that the photos had "no meaning," and her "implausible documentation-of-diaper rash explanation"—were "relevant to the jury's consideration of Ms. Turenne's likely purpose in taking and keeping the images." They therefore were "proper considerations for the jury in determining whether Ms. Turenne exploited the children for her own benefit in connection with the child sexual abuse charges." But the test that the majority applied in upholding the child pornography convictions is supposed to be "objective," making her motivation irrelevant.

"The only contextual element that is relevant to the jury's understanding of what is depicted in the images themselves, to the extent it is unclear in any of them, is that the children in seven of the eight images were lying on a changing table and the eighth was in a bathroom," Fader writes. "But knowledge of the setting in which the pictures were taken does not add any element of objective sexuality to them, separate and apart from Ms. Turenne's subjective motivation. The other contextual elements identified by the Majority speak to Ms. Turenne's subjective motivation, not what is depicted in the images themselves."

To convict Turenne of the sexual abuse charges, the prosecution had to prove beyond a reasonable doubt that the photos constituted "exploitation of a minor," meaning she "took advantage of or unjustly or improperly used the child for…her own benefit." That "benefit," according to the prosecution, was "sexual gratification." Fader agreed with the majority that "there was sufficient evidence for the jury to infer that Ms. Turenne took the eight pictures at issue for her own benefit."

Watts, however, dissented on that point too. She notes that the prosecution made much of Turenne's sexual orientation, which Watts thinks improperly figured in the verdict.

During Turenne's trial, a prosecutor asked her if she was attracted to women. "I wouldn't say attracted to women," she replied. "I'm bisexual, like, I'm still confused about what I like between men or women. But not children, no."

The prosecution, which noted that all the photographs featured girls and presented testimony from a co-worker who said Turenne had told her "she was gay," argued that her sexual orientation was relevant in assessing why she took the pictures. Prosecutors also noted that Turenne had adult pornography featuring both men and women on her phone—although, contrary to what you might expect given the charges against her, there was no indication that she had "conducted any internet searches for child pornography."

The Maryland Supreme Court explicitly declined to consider that evidence. But Watts argues that it played an important role in the case. Turenne "was prejudiced by the admission of the evidence," Watts says. And "with these circumstances omitted, the remaining evidence is insufficient to support Ms. Turenne's convictions for child sexual abuse."

Watts suggests that Turenne's explanation of her behavior is more plausible than her colleagues think. "Some of the photos show redness or darkened areas—i.e., consistent with diaper rashes—near the genital area and/or in the fold of the buttocks, and one of them shows diaper cream in and around the fold of the buttocks," she writes. "Ms. Turenne testified that she took the photos to prove that children had diaper rashes before she started watching them. Although the jury evidently did not find this part of Ms. Turenne's testimony credible, the nature of the photos and the circumstances surrounding them being taken do not alone establish that the photos were taken for the purpose of sexual gratification."

The majority emphasized that Turenne initially denied taking the pictures, later said they had "no meaning," and did not offer the diaper-rash explanation until her trial. But Watts thinks Turenne's evasiveness and reticence are understandable in the circumstances, even without accepting the prosecution's theory of why she took the photos.

"Although the photos were taken clandestinely in violation of the daycare center's no-photo policy and Ms. Turenne initially denied having taken them, these facts were not sufficient for a rational juror to infer that the photos were taken for sexual gratification," Watts writes. "A rational juror could have inferred that Ms. Turenne took the photos because she was concerned about being blamed for diaper rashes and lied about having taken them because she knew doing so was against the daycare center's policy. A rational juror also could have inferred that Ms. Turenne took the photos while she was alone with the children because she knew that taking the photos was against the center's policy….Without consideration of evidence admitted at trial concerning Ms. Turenne's sexual orientation and possession of adult pornography, no rational juror could have found beyond a reasonable doubt based on the appearance of the photos that they were taken for sexual gratification."

Although Turenne did not challenge her sentence in this appeal, Watts notes that "the circuit court imposed an aggregate sentence of 280 years of imprisonment, with all but 126 years suspended, followed by 5 years of probation and lifetime registration as a sex offender." While "criminal offenses against children are heinous and must be dealt with appropriately," she says, "it is disproportionate and draconian to impose an aggregate sentence of nearly 3 centuries of imprisonment, with all but 126 years suspended, under the circumstances of this case." Whatever you make of Turenne's defense, that much seems clearly true.

The post A Day Care Worker Who Says She Was Documenting Diaper Rashes Got 126 Years for Taking 8 Photos appeared first on Reason.com.

The front page of CNN.com blares the headline, "Prominent conservative endorses Harris, calls Trump a threat to democracy." Below the photograph of Mike Luttig is the caption, "It'll be the first time the retired federal judge, a veteran of two GOP administrations, has voted for a Democrat."

Is Mike Luttig "prominent"? And is he still a conservative? At one point, he was unquestionably both. The former Wunderkind held senior posts in DOJ and was appointed to the Fourth Circuit before most lawyers make partner. He was at the tip-top of the Supreme Court short list, but President George W. Bush passed over him to select John Roberts and Samuel Alito. In 2006, Luttig retired from the Fourth Circuit and became general counsel of Boeing. After that point, he fell off the map. I had completely forgotten about him. I had never seen him at any Federalist Society event. He did not offer any public advocacy. He said nothing about the leading issues facing the conservative legal movement. He was a non-entity.

But then January 6 happened. And the Luttig hagiography emerged. Greg Jacob, Mike Pence's counsel, relates that Luttig had no conversations with Pence prior to January 6. Jacob simply cited some of Luttig's tweets in his already-completed letter. That's it! Yet, somehow, Luttig is commonly viewed as Pence's close advisor, and a person who helped save the Republic. Never happened.

Since January 6, I cannot think of a single "conservative" position that Luttig has taken on anything. He has filed amicus briefs in several Supreme Court cases, always on the liberal side of the issue. As best as I can recall, he said nothing favorable about Dobbs, perhaps the crowning achievement of the conservative legal movement. Most recently, he has said nothing at all about Senator Schumer's nuclear jurisdiction stripping bill. He has organized a new organization that is meant to be a counter to the Federalist Society. All of his pro-democracy advocacy may as well be an in-kind donation to the Kamala Harris campaign. Formally endorsing Harris was a foregone conclusion. By what measure can Luttig still claim to be a conservative?

David French also recently endorsed Kamala Harris (which I flagged here). He offered this self-reflection:

I'm often asked by Trump voters if I'm "still conservative," and I respond that I can't vote for Trump precisely because I am conservative. I loathe sex abuse, pornography and adultery. Trump has brought those vices into the mainstream of the Republican Party. I want to cultivate a culture that values human life from conception through natural death. Yet America became more brutal and violent during Trump's term. I want to defend liberal democracy from authoritarian aggression, yet Trump would abandon our allies and risk our most precious alliances.

The only real hope for restoring a conservatism that values integrity, demonstrates real compassion and defends our foundational constitutional principles isn't to try to make the best of Trump, a man who values only himself. If he wins again, it will validate his cruelty and his ideological transformation of the Republican Party. If Harris wins, the West will still stand against Vladimir Putin, and conservative Americans will have a chance to build something decent from the ruins of a party that was once a force for genuine good in American life.

French, Luttig, and others have joined the august company of people like John Paul Stevens and David Souter, who insist that they never moved to the left, but the conservative party moved too far to the right. Tell me about it. To paraphrase Rahimi, legal conservatism is not trapped in amber. To paraphrase Forest Gump, conservative is as conservative does. As I wrote last year, "there should be a statute of limitations for calling a person a legal conservative."

The post Is Mike Luttig A "Prominent Conservative"? appeared first on Reason.com.

A few hours before touching down in Chicago Sunday, Vice President Kamala Harris, in one of her few interactions with reporters since snatching the Democratic Party's presidential nomination from her boss, gave a meandering yet revealing answer to the simple question of how she would pay for her recently introduced economic proposals.

"What we're doing in terms of the [first-time homebuyer] tax credits, we know that there's a great return on investment," Harris asserted in Moon Township, Pennsylvania. "When we increase home ownership in America, what that means in terms of increasing the tax base, not to mention property tax base, what that does to fund schools—again, return on investment. I think it's a mistake for any person who talks about public policy to not critically evaluate how you measure the return on investment. When you are strengthening neighborhoods, strengthening communities, and in particular the economies of those communities, and investing in a broad-based economy, everybody benefits, and it pays for itself in that way."

Italics added, to emphasize America's ongoing mistakes.

Democrats begin their four-day national convention Monday in the city that perhaps best exemplifies the chasm between their party's dreamy policy rhetoric and grim real-world results. As a direct result of one-party misrule (there are zero Republicans on the 50-seat City Council), Chicago's tax base is decreasing, not increasing. The population has declined for nine consecutive years, is shrinking by an annual rate of 1 percent, and is at its lowest point in more than a century.

Illinois, where Democrats control the governorship and a two-thirds majority of the legislature, lost "an estimated $3.6 billion in income tax revenue in 2022 alone, a year the net loss of 87,000 residents subtracted $9.8 billion in adjusted gross income," syndicated columnist and Illinois native George Will observed last week. "In the past six years, $47.5 billion [adjusted gross income] has left….Illinois leads the nation in net losses of households making 200,000 or more."

None of these or other grisly Windy City stats—including the murders and the pension liabilities—are obscure. As Illinois Policy Institute Vice President Austin Berg put it Saturday night at a live taping of the Fifth Column podcast, "I believe Chicago is the greatest American city, and the worst-governed American city."

The bigger mystery has been why the Democratic Party would choose such a metaphorically dicey backdrop. But an answer begins to suggest itself amid the banal dystopia of the DNC's endless security checkpoints, concrete barriers, and battalions of police officers separating America's political class from its serfs. Democrats chose Chicago for a similar reason that Harris chose a running mate with a particularly awful record during the pandemic- and riot-scarred year of 2020: Because they, like their candidate, know that, contra Harris' assertion Sunday in Pennsylvania, the people who talk about policy—whether politician, journalist, or political consumer—almost never "critically evaluate how you measure the return on investment."

If professional political conversation was tethered even loosely to policy results, you might expect one or maybe even two of the journalists dutifully collecting their DNC press credentials at the colossal (and colossally empty) McCormick Place convention center to ask a follow-up question about what their eyeballs cannot miss. How in the world can a city in terminal financial crisis not just support the country's largest convention-center complex during a time of market oversupply and conventioneering decline, but actually keep expanding the damn thing?

The DNC's second major site (behind the United Center, which is hosting what you watch on television), "has been a political money pit for nearly 60 years," Berg wrote in 2019. Built in 1960, rebuilt after a 1967 fire, then expanded in 1986, 1997, 2007, and 2017, McCormick Place looks this week like the cover of a Mike Davis book—extensive security barricades and fencing separating the nearby poors from a depopulated, dully corporate expanse.

"Over and over, Chicago and Illinois public officials and a roster of consultants promised that a bigger McCormick Place would yield hundreds of thousands of new convention attendees and billions in new spending and public revenues," Heywood Sanders wrote in his 2014 book Convention Center Follies. "Those repeated promises have proved false, the consultant projections unmet."

Instead, like so many other Chicago governance failures, the unmet promises are covered over with taxes—on hotel room stays, restaurants, car rentals. In completely related news, a 2024 Wallet Hub study of effective state/local tax burden per median U.S. household income ranked Illinois dead last.

But the 2024 campaign is famously more about "vibes" than anything related to governance. The Harris/Walz campaign website still does not have a policy page (though the party did on Sunday release a draft platform). "I have not had a single constituent in El Paso or a single person on the road try to get very specific policy details from me," Harris campaign co-chair Rep. Veronica Escobar (D–Texas) told The New York Times. You're going to have to vote for a Harris administration to see what's in it.

Republican nominee Donald Trump famously did not even update the 2016 GOP platform when he ran unsuccessfully in 2020, suggesting that America has a supply problem when it comes to national politicians and policy accountability.

But don't sleep on demand. Trump fans love his boorish, bizarre, and often funny jokes, so he keeps making cracks about Kamala Harris' looks and Montana Sen. John Tester's fat stomach rather than stay as focused on issues as his advisors would prefer. Harris is getting cheered on by a subset of journalists for not subjecting herself to any kind of public cross-examination. And the residents of Chicago, looking upon both the civic dysfunction and the city's undeniable energy and charm, just keep on voting for more Democrats.

Americans may be getting precisely what they want out of politics in 2024. Good and hard.

The post Democrats Unburdened by What They Have Done to Chicago appeared first on Reason.com.

Age verification laws have been sweeping the country the year, as states push to require social media platforms and adult-oriented websites to card their users. Rather than check IDs, some major porn platforms have simply been pulling out of states where these laws are enacted.

This "is entirely what we were after," said Republican operative Russell Vought in a hidden-camera video released last week.

The video was recorded by reporters from the British nonprofit Centre for Climate Reporting. Posing as the relatives of a fictitious conservative donor, the reporters talked with Vought in a D.C. hotel suite in July and, last Thursday, posted a recording of this conversation.

'We're doing it from the back door'

In a portion of the video, Vought—who served as policy director for the Republican National Committee (RNC) platform rewrite this year—talks about why activists have been pushing age verification laws.

"We're doing it from he back door. We're starting with the kids," Vaught said. "We'd have a national ban on pornography if we could, right? So, like, we would have, you know, the porn companies being investigated for all manner of human rights abuses."

A national ban on porn would, of course, run up against the First Amendment. So savvy anti-porn activists have taken to pushing age verification laws instead.

"We came up with an idea on pornography to make it so that the porn companies bear the liability for the underage use, as opposed to the person who visits the website [having to] certify that 'I am 18," Vought told the undercover Centre for Climate Reporting staffers. "We've got a number of states that are passing this and then you know what happens is the porn company says 'We're not going to do business in your state'—which, of course, is entirely what we were after."

Who Is Russell Vought?

Vought is the founder of the Center for Renewing America, a right-wing think tank whose "mission is to renew a consensus of America as a nation under God," per its website. In May, he was appointed policy director of the RNC's platform committee.

Vought was previously an official in the Trump administration's Office of Management and Budget (OMB), eventually serving as OMB director from July 2020 to January 2021.

But Vought is probably best known as one of the architects of Project 2025, the Heritage Foundation's now-infamous document laying out what it wants to put on the agenda of a second Trump administration.

Trump and his campaign have distanced itself from the much-derided Project 2025 agenda, which Democrats have latched onto as a way to portray Trump's campaign as nefarious and extreme. But part of the idea behind the agenda is to put Project 2025 supporters back in the federal government if Trump is elected again. So even if Trump isn't doesn't endorse Project 2025, people from Project 2025 may well be involved in a future Trump administration.

And Vought is "likely to be appointed to a high-ranking post in a second Trump administration," according to the Associated Press (AP).

"In his public comments and in a Project 2025 chapter he wrote, Vought has said that no executive branch department or agency, including the Justice Department, should operate outside the president's authority," reports the AP. "'The whole notion of independent agencies is anathema from the standpoint of the Constitution,' Vought said during a recent appearance on the Fox Business Network."

"Eighty percent of my time is working on the plans of what's necessary to take control of [federal] bureaucracies," Vought said in the Centre for Climate Reporting's video.

Project 2025 on Porn

The idea that age verification laws are meant to make porn websites shutdown isn't exactly a surprising revelation. It's long been clear that a large subset of people pushing porn age-check laws would like to do away with porn entirely. Sex workers have certainly been warning as much for a while now.

Still, it's notable to hear this vision laid out so plainly from someone with such a significant hand in shaping conservatives' policy agenda.

Rachel Cauley, a spokesperson for the Center for Renewing America, downplayed the idea that the video has revealed anything new. "It would have been easier to just do a google search to 'uncover' what is already on our website and said in countless national media interviews," she told CNN.

Indeed, people like Vought have not hidden their anti-porn agenda. Project 2025 calls for banning porn and imprisoning those who make or distribute it. Porn "has no claim to First Amendment protection," it states. "Pornography should be outlawed. The people who produce and distribute it should be imprisoned. Educators and public librarians who purvey it should be classed as registered sex offenders. And telecommunications and technology firms that facilitate its spread should be shuttered."

Project 2025 also takes a broad view of what constitutes pornography, saying that porn is "manifested today in the omnipresent propagation of transgender ideology." It seems pretty clear that a Project 2025–style porn ban wouldn't simply target videos and imagery depicting nudity or sex but a wide swath of content related to gender and sexuality.

More Sex & Tech News

• The U.S. Court of Appeals for the Ninth Circuit ruled in favor of the tech-industry association NetChoice in a case concerning California's Age Appropriate Design Code. "The court recognized that California's government cannot commandeer private businesses to censor lawful content online or to restrict access to it," said Chris Marchese, director of the NetChoice Litigation Center.

• Another critical review of Jonathan Haidt's The Anxious Generation, this time written by University of Vienna professor Tobias Dienlin and published in Journalism & Mass Communication Quarterly. "While several arguments are compelling, the book misrepresents the literature, which reports small negative relations at best," Dienlin posted on X. (The published copy of Dienlin's review is paywalled, but you can read a pre-print version here. My review of the book is here.) 

• Amber Batts reflects on how she got sentenced as a "sex trafficker" in Alaska 9 years ago.

Today's Image

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Gird your loins, it's DNC time: The Democratic National Convention starts today in Chicago, and the Israel/Palestine-related tensions that have been coursing through the left since October 7 may very well come to a head this week.

Tens of thousands of protesters are expected to set up right outside of security to protest the party's support of Israel; presumptive nominee Kamala Harris' husband, Doug Emhoff, who is Jewish, is expected to speak about Judaism on stage; and, just like during the Republican National Convention, some families of hostages taken by Hamas will plead onstage for the return of their loved ones.

Some delegates who eschewed voting for Kamala Harris, calling themselves the Uncommitteds, have broken from the party pick precisely because they do not support U.S. support for Israel in the Gaza war. The Uncommitted factor is especially relevant to Michigan, a swing state with a large Middle Eastern population, and Democratic officials have been attempting to make inroads with the vocal disgruntled in recent weeks; they want a DNC that signals unity, and the likelihood that massive protests will be taking place just outside the gates undermines this.

"The key question for Democrats this week is whether the demonstrators represent a meaningful group of voters who could swing the election in November, or if they are outliers on the left who should be resisted in an appeal to the center," sums up The New York Times. 

Hamas rejects latest ceasefire proposal: On Sunday, following days of tense negotiating and Secretary of State Antony Blinken shlepping to Israel believing an agreement was imminent, Hamas rejected a proposed ceasefire deal with Israel.

"After being briefed by the mediators about what happened in the last round of talks in Doha, we once again came to the conclusion that Netanyahu is still putting obstacles in the way of reaching an agreement, and is setting new conditions and demands with the aim of undermining the mediators' efforts and prolonging the war," declared Hamas in a statement, adding that the U.S.-brokered ceasefire "aligns with" Israel's demands.

At issue is the fact that the ceasefire did not force full a Israeli withdrawal from the entirety of the Gaza Strip. Israel had proposed maintaining a large security presence on the border between Egypt and Gaza, as well as maintaining control over the Netzarim Corridor, which divides the Gaza Strip's north from its south.

Blinken has called this round of negotiations a "decisive moment" for Israel and Hamas. In the last few weeks, Iran and its proxies, including Hezbollah, have vowed to strike Israel in retaliation for its July assassinations of Hezbollah official Fuad Shukr in Beirut and Hamas leader Ismail Haniyeh in Tehran. Thus far, wider war has been staved off, but it's unclear for how much longer that will last; the fact that negotiations were in progress may have played a contributing role. Now that may not be so.

Scenes from New York: One of the New York City hospital systems, Northwell Health, is starting a studio to make its own movie and TV shows following the success of the Netflix show Lenox Hill, which followed doctors and patients within the system. But just a few years ago, NewYork-Presbyterian Hospital/Weill Cornell Medical Center had to pay out a more than $2 million settlement to federal regulators for failing to protect patient privacy when a television crew was filming inside the hospital. Expect more issues, both ethical and legal, to arise.

QUICK HITS

• "The ports of Los Angeles and Long Beach, which account for roughly a third of all US container imports, had their third-strongest month ever in July, just shy of an all-time high reached in May 2021. Back then, a wave of inbound consumer goods caused supply bottlenecks on land and a queue of cargo ships waiting for a berth offshore was getting longer by the day," reports Bloomberg. "Demand now is driven by retailers and other importers that are stocking up ahead of US tariffs on Chinese goods and a possible strike by a large group of American dockworkers—adding to the usual frenzy of pre-holiday ordering that occurs this time of year."
• Planned Parenthood Great Rivers is offering free vasectomies and abortions for DNC attendees at a van near the convention center, which seems a little self-defeating if the idea is to grow your political party.
• Also in DNC abortion news: Some protesters have dressed up as abortion pills.
• Officials in Georgia "like the prosperity that could come with making [electric vehicles], but not the California-style mandates that prop them up. They like the jobs but agree with many of their voters who think electric vehicles are a sheet metal-clad tenet of the Democrats' woke ideology," reports Politico. 
• Donald Trump's running mate, J.D. Vance, responded this weekend to news of a Kamala Harris poll bump by saying the "media uses fake polls."

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[After a brief hiatus, this is the sixth post in my series on my mission to Israel. You can read Parts I, II, III, IV, and V.]

It is difficult to describe the extent to which October 7 impacted the psyche of Israelis. In particular, there is a constant awareness of the hostages. Walls and billboards throughout the country are plastered with the familiar sign: the person's name and age in red letters against a white background; a photograph of the person in happier times; and bold letters: "Bring Him/Her Home Now!"

From the moment you get off the airplane, you see over one hundred posters lining the ramp to customs.

Various locations curate different ways of remembering the hostages. At the National Library of Israel, a poster of each hostage was placed on a chair, with a book that person enjoyed. For the Bibas brothers, who were nine months and four years old when kidnapped, they had kid chairs and kid books.

The signs appear everywhere. The only experience that I can slightly relate to was the prevalence of American flags after 9/11. At least in New York, I think almost every kid brought an American flag to school for at least some period after the terrorist attacks. But eventually that patriotism faded; or, as I learned a new word, the patriotism became jingoism.

Artists also created illustrated versions of the sketches.

Again, the drawing of the Bibas brothers was especially heart-breaking. The younger son has now spent more of his life as a hostage than outside.

During our mission, we visited the headquarters of the Hostage & Missing Family Forum. This organization sprung up in the wake of October 7 to advocate for the interest of families of those who were taken hostage, as well as those whose bodies were missing in Gaza. In a fairly short period of time, a sophisticated operation developed.

This board depicts all of the various media outlets the group has appeared on.

But there are divisions. Not everyone agrees what "Bring them home now!" means. Is this message an ultimatum to Hamas? Or an ultimatum to the Netanyahu government?

Even among Israelis, there is a stark disagreement about how to handle the hostage situation. In years past, Israel went to great lengths to bring back hostages, including by releasing many dangerous prisoners--including Yahya Sinwar, who has become the head of Hamas. What is the cost of bringing back the hostages? What is the cost of not bringing back the hostages? These questions are exceptionally difficult. I think media coverage only shows the side of the poor families who want their loved ones brought home at any cost. But, as with any public policy decision, costs are never so easily balanced.

We met with one woman whose nephew, a soldier, was kidnapped on October 7. She described the agony of not knowing whether he was dead or alive. They held a funeral for him, with an empty casket. She later found out that he had been killed, but at the time, did not know where his body was.

Shortly after our trip, the body of Staff Sgt. Tomer Yaakov Ahimas, 20 was recovered from Gaza and brought to Israel. They were able to hold a proper funeral with Tomer's remains.

I will continue this series tomorrow with a post about the restricted surveillance tapes.

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When you've caused a problem, deflect! At least, that seems to be the strategy of Vice President and Democratic presidential candidate Kamala Harris, who spent the last several years as part of an administration that presided over a growing mismatch between Americans' pay and the cost of living. Rather than take responsibility for the decline of the dollar's purchasing power, she blames businesses that were forced to raise prices as a result. And she wants to fix the problem she helped cause by restricting those prices, never mind the inevitable consequences for the availability of goods and services.

Wait, I Thought This Was an Economy To Be Proud Of?

First though, let's journey back to 2023 when Harris claimed to be proud of the state of the economy.

"That is called Bidenomics, and we are very proud of Bidenomics," she insisted last August in a speech where she also trumpeted, "the unemployment rate is near its lowest level in over half a century. Wages are up. Inflation has fallen 12 months in a row."

Now though, the vice president and would-be chief executive huffs, "When I am President, it will be a day one priority to bring down prices. I'll take on big corporations that engage in illegal price gouging and corporate landlords that unfairly raise rents on working families."

And that's exactly what she proposed in her speech last week which recognized concerns over the cost of living and included a host of schemes for greater government involvement in the economy, including "the first ever federal ban on price gouging on food" amidst worries over grocery bills.

It's nice that Harris recognized Americans' concerns over making ends meet. Less nice, though, was pretending that cost concerns are a result of mean corporations rather than bad policy. Also not so nice is her insistence on doubling down on bad policy with even worse cost controls.

Let's emphasize that there's little doubt government policy is at the root of inflation.

Government Officials Should Get the Blame for Those High Prices

"Inflation comes when aggregate demand exceeds aggregate supply," wrote economist John Cochrane of the Hoover Institution and the Cato Institute in a March piece for the International Monetary Fund. "The source of demand is not hard to find: in response to the pandemic's dislocations, the US government sent about $5 trillion in checks to people and businesses, $3 trillion of it newly printed money, with no plans for repayment."

"Fiscal stimulus boosted the consumption of goods without any noticeable impact on production, increasing excess demand pressures in good markets," admitted the Federal Reserve Board of Governors as early as July 2022. "As a result, fiscal support contributed to price tensions."

Even Jim Tankersley and Jeanna Smialek of The New York Times, a paper which almost reflexively supports Democrats, concede "most economists" say that factors including "snarled supply chains, a sudden shift in consumer buying patterns, and the increased customer demand fueled by stimulus from the government and low rates from the Federal Reserve…are far more responsible than corporate behavior for the rise in prices."

And the rise in prices is substantial. The U.S. Bureau of Labor Statistic's inflation calculator shows that in July 2024, it took $120.25 to buy what $100 purchased in January 2021 when Joe Biden and Kamala Harris took office. That's on average; some sectors have seen greater or lesser inflation.

What Price Gouging?

Especially when it comes to groceries, it's difficult to make a case for "price gouging." A New York University Stern School of Business annual survey shows a net profit margin of 1.18 percent for retail grocery stores last year. That's down a bit from when the Biden administration took office (you can check annual data here). Kroger, the industry giant that is frequently portrayed as a greedy bogeyman, recently enjoyed a slightly higher net profit margin of 1.43 percent; over the last 15 years, its profits briefly reached as high as 3.02 percent in 2018. (The Cato Institute's Scott Lincicome does a good dive into food-industry economics on X.)

So much for Harris's deflection. But then there's her scheme for price controls to address the higher prices brought by government policy. Such controls have such a well-documented track record that they heap stupidity onto Harris's dishonesty.

A History of Price Control Failures

In 2022, when inflation was surging and the dollar's declining purchasing power had many Americans looking for the sort of "solutions" that Harris now offers, Federal Reserve Bank of St. Louis economist Christopher J. Neely pointed out that schemes for government-imposed price controls date back to the Code of Hammurabi and "have costs whose severity depends on the broadness of the control and the degree to which it changes the price from the free-market price."

Free market prices, he emphasized, "allocate scarce goods and services to buyers who are most willing and able to pay for them" and "signal that a good is valued and that producers can profit by increasing the quantity supplied." In the absence of such allocation and signals, you get shortages of goods and services. With grocery stores, that means empty shelves—little to buy at the controlled prices.

There's more to it than that. Neely pointed out that you also get cheapened goods to reduce production costs, gamesmanship to get around rules, and black markets that entirely defy the law. He recommended that "price controls should stay in the history books."

The Washington Post editorial board, usually as protective of Democrats as the Times, agrees. It pointed out that Harris didn't define what constituted the "excessive" profits she wanted to target and that "thankfully, this gambit by Ms. Harris has been met with almost instant skepticism, with many critics citing President Richard M. Nixon's failed price controls from the 1970s."

From the Code of Hammurabi to former President Nixon, with a detour for the Roman Emperor Diocletian—who, economist John Cochrane notes, torpedoed production and trade with price restrictions—such controls have been irresistible for government officials. That's because bad economics all too often makes for good—or, at least, effective—public relations. People who tell pollsters they think corporations are raking in 36 percent profits (the real average across industries is closer to 8 percent) can be convinced by clever politicians that they're being ripped off and need government intervention.

What politicians won't admit is that it's their own policies that put the public in distress to begin with, and that their latest schemes, if implemented, will make matters worse.

The post Kamala Harris' Dishonest and Stupid Price Control Proposal appeared first on Reason.com.

8/19/1937: Justice Hugo Black takes the oath.

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Electric school buses that were supposed to cut one Maryland county school system's transit costs in half actually cost the system millions of dollars. A report by the Montgomery County Office of the Inspector General found the buses were often delivered late and frequently had mechanical issues that "rendered them inoperable for extended periods." As a result, the school system had to spend more than $14.7 million to buy 90 diesel buses to cover routes. The delays and repair issues entitled the school system to more than $372,000 in penalties from the contractor, but no administrator ever pursued it.

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The housing crisis is one of the most important policy issues facing the nation. Housing shortages increase living costs for large numbers of people, and also prevent millions from moving to places where they would have better job and educational opportunities, thereby slowing economic growth and innovation. Both Kamala Harris and Donald Trump have taken positions on housing issues. But their ideas are mostly ones that would cause more harm than good. Sadly, neither candidate proposes any meaningful steps to break down the biggest barrier to housing construction in most of the US: exclusionary zoning rules that make it difficult or impossible to build new housing in response to demand.

Harris is the one that has offered more in the way of detailed proposals. She proposes giving $25,000 tax credits to first-time homebuyers and tax incentives for developers selling homes to first-time buyers. She also advocates restricting the use of algorithms to set rental prices, and  capping rent increases and cracking down on "corporate" landlords. The rent control idea may be a reference to the Biden Administration's recent plan to cap rent increases at 5% per year, though it is not clear if Harris endorses it. Harris also promises to build 3 million new homes by 2029, but is extremely vague on how exactly she plans to do it.

These policy ideas range from mediocre to awful. A $25,000 subsidy for first-time homebuyers is unlikely to do much to ease housing shortages. The fundamental problem is one of regulatory restrictions on supply. In that environment, subsidizing demand will simply bid up prices. Moreover, the people who most suffer from housing shortages are mostly renters, not would-be homeowners. This subsidy plan does nothing for them. Much the same goes for the plan to provide tax incentives for developers. This won't do much for supply so long as developers are barred from building much in the way of new housing in many places, especially multi-family housing.

If zoning and other regulatory restrictions do get lifted, Harris's tax credit incentives would be unnecessary. And, indeed, there would be no good reason to have the tax code favor housing purchases over other types of consumption.

Rent control is a terrible idea that is actually likely to exacerbate shortages. This is an Economics 101 point broadly accepted by economists across the political spectrum. Don't take my word for it. Take that of prominent progressive ecoonomists, such as Paul Krugman, and Jason Furman, former chair of Barack Obama's Council of Economic Advisers, who points out that "[r]ent control has been about as disgraced as any economic policy in the tool kit."

Finally, there is no good reason to think that corporate landlords are any worse than other types of landlords, or that algorithmic pricing is somehow making the housing crisis worse. To the contrary, corporate landlords are usually as good or better than their "mom and pop" counterparts. Take it from a longtime renter with experience living under both types of landlords; the corporate ones usually maintain their properties better, and have better customer service. And algorithms can help owners identify situations where they can increase profit by lowering prices, as well as increasing them.

Harris is right to want to build 3 million new homes. Indeed, it would be great to build more than that. But, so far, she hasn't proposed much in the way of effective methods of doing it. Unless and until she does so, her aspiration for 3 million new homes is not much more viable than my desire to add 3 million unicorns to the nation's stock of magical animals.

At times she has made noises about cutting back red tape. I assume, also, that she supports President Biden's plan to make "underutilized" federal land available for housing construction. The latter is a good idea, but it's far from clear exactly which land will be opened up and on what terms.

Trump's housing agenda is less detailed than Harris's, but could well be even worse. The housing chapter of the Heritage Foundation's controversial Project 2025 emphasizes that "a conservative Administration should oppose any efforts to weaken single-family zoning." Single-family zoning, of course, is the most restrictive type of exclusionary zoning blocking new housing construction in many parts of the country. Donald Trump has disavowed Project 2025, and claims he "knows nothing about it." But the author of the housing chapter is Ben Carson, Trump's former secretary of Housing and Urban Development. During the 2020 election, Carson and Trump coauthored a Wall Street Journal op ed attacking efforts to curb exclusionary single-family zoning. He recently reaffirmed that position, promising to block "low-income developments" in suburban areas. On housing, at least, Project 2025 seems to reflect Trump's thinking, and that of the kinds of people likely to influence housing policy in a second Trump administration. The Trump worldview is one of NIMBYism ("not in my backyard").

Trump's immigration policies—a centerpiece of his agenda, if anything is—would also have negative effects on housing. Evidence shows that mass deportations of undocumented immigrants reduce the availability of housing and increase the cost, because undocumented immigrants are an important part of the construction work force (an effect that outweighs the potential price-increasing effect caused by immigration increasing the number of people who need housing). Trump and his allies also plan massive reductions in most types of legal immigration. Slashing work visas is also likely to negatively affect housing construction (as well as damage the economy in other ways).

If there is a saving grace to the Harris and Trump housing policies, it's that most of them cannot be implemented without new legislation, which will be extremely hard to push through a closely divided Congress. That's true of the Harris's rent control policies, and her plans to subsidize home purchases, and crack down on "corporate" landlords. Likewise, a Trump administration would probably need new legislation for any major effort to protect single-family zoning against state-level reform efforts.

But Trump's immigration policies are an exception. The executive could ramp up deportation and slash legal immigration without new legislation. Indeed, the Trump administration did in fact massively cut legal immigration during Trump's previous term in office. Deportation efforts could be partially stymied by state and local government resistance (as also happened during Trump's first term). But Trump could partly offset that by trying to use the military, as he and his allies plan to do (whether legal challenges to such efforts would block them is debatable). At the very least, ramping up federal deportation efforts would drive undocumented immigrants further underground, and reduce their ability to work on construction, where laborers are relatively out in the open and more vulnerable to detection than in some other jobs.

In sum, Harris and Trump are offering mostly terrible housing policies. Their main virtue is the difficulty of implementing them.

There are, in fact, steps the federal government can take to ease housing shortages. Most restrictions on new housing are enacted by state and local governments, which limits the potential of federal intervention. But Congress could enact legislation requiring state and local governments that receive federal economic development grants to enact "YIMBY" legislation loosening zoning rules. Perhaps a stronger version of the YIMBY Act proposed by Republican Senator Todd Young and Democratic Rep. Derek Kilmer (their version could be a useful start, but does not have enough teeth). Those who object to such legislation on grounds of protecting local autonomy should recall that YIMBYism is actually the ultimate localism.

The federal Justice Department could also support litigation aimed at persuading courts to rule that exclusionary zoning violates the Takings Clause (which it does!). Such litigation could do much to break down barriers to new housing construction. Federal government support wouldn't guarantee victory. But it could help by giving the argument instant additional credibility with judges.

Finally, the feds could help pursuing the opposite of Trump's immigration policies, and instead make legal migration easier. That would increase the construction workforce, and make housing construction cheaper and faster.

Sadly, neither major-party candidate is proposing to do any of these things. Instead, they mostly sell claptrap that is likely to make the housing crisis even worse.

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The New York Times, perhaps in something of a rush, is catching up with the usual profiles of a presidential candidate that would usually come during the nomination season. Of course, as Maureen Dowd points out, there was no such process for the current Democratic nominee. Nomination by acclimation, as it were. So the name of the game is backfill. Today's Times shared two tidbits about Kamala Harris that may be of interest to readers.

First, it turns out that John Eastman, of all people, helped Harris prevail in her razor-thin margin of victory for AG. For those who were not around fifteen years ago, Eastman was a leading figure in legal education. As dean at Chapman, Eastman was building a nucleus of leading conservative law professors. One of his more important hires was to poach Ron Rotunda, my professor, from George Mason. But in 2010, Eastman resigned as Dean to run for California Attorney General. Eastman would lose the Republican primary to Los Angeles County District Attorney Steve Cooley. During that primary, as the Times points out, Eastman landed a strong punch on Cooley. Apparently, Cooley would have been eligible to receive both the salary of Attorney General, and his pension from serving as District Attorney. Eastman attacked Cooley for "double dipping."

Later, during a debate between Cooley, and Kamala Harris, the Democratic nominee for AG, Eastman's "double dipping" point was brought up:

Dan Morain, who worked for The Sacramento Bee's editorial page, asked who would bring up double-dipping — that is, taking both a public salary and a public pension. It had been an issue in the Republican primary, first raised by John Eastman, Mr. Cooley's primary opponent. Mr. Eastman is better known now for his efforts to keep Mr. Trump in office after the 2020 election, which resulted in an indictment and disbarment.

"I'm going to ask that," replied Jack Leonard, a Los Angeles Times reporter who covered Mr. Cooley.

Collis gave the wrong answer, and said he "earned" the right to accept the salary and the pension:

Inside the practice courtroom, Mr. Leonard outlined that the $150,000 salary of the California attorney general was half of the $292,300 salary that Mr. Cooley was earning as the local district attorney. If he double-dipped by taking a taxpayer-paid pension as a former district attorney and a taxpayer-paid salary as the state attorney general, Mr. Cooley would be in line to make more than $400,000.

"Do you plan to double-dip by taking both a pension and your salary as attorney general?" Mr. Leonard asked.

"Yes, I do," Mr. Cooley said without hesitation.

He glanced at Ms. Harris. She said nothing.

"I earned it."

But Mr. Cooley was not yet done. "I definitely earned whatever pension rights I have, and I will certainly rely upon that to supplement the very low, incredibly low salary that's paid to the attorney general," he added.

"It was tone deaf," Mr. Riggs said. "It was startling," Mr. Leonard said. "It was awful," Mr. Morain said. "It was jaw-dropping," Mr. Smith said.

Harris would prevail by less than 1% in the race. I think it is safe to say that John Eastman, at least in part, helped Harris win her race for Attorney General. Had the primary gone differently, imagine if Eastman had bested Harris in the general election. What a different world we would be in.

The next tidbit concerns Harris's role in filling Justice Breyer's seat. As readers will recall, President Biden promised to select a black woman for the Supreme Court seat. (He previously also promised to select a black woman for the vice presidency.) The top three nominees were Judge Ketanji Brown Jackson, Justice Leondra Kruger of the California Supreme Court, and District Court Judge Michelle Childs from South Carolina. Both Jackson and Kruger had clerked on the Supreme Court. Childs was favored by Representative James E. Clyburn of South Carolina, who helped turn the 2020 Democratic primary in Biden's favor.

VP Harris played a role in the process, which the Times describes:

She was also deeply involved in Mr. Biden's only Supreme Court appointment, interviewing all three finalists and studying their legal records. While she considered Leondra R. Kruger, a California Supreme Court justice, a "very sharp lawyer," she concluded that the justice might be too cautious for the moment, according to a former White House official.

J. Michelle Childs, then a district judge, had the support of both Mr. Clyburn and Senator Joe Manchin III, then a Democrat from West Virginia, making her the choice of least resistance. But Ms. Harris concluded that Ketanji Brown Jackson, a federal appeals judge, would be the boldest option, the former official and Mr. Klain said. "Joe, you may only get one chance to do this as president, and you want to be proud of your legacy here," she told Mr. Biden, according to Mr. Klain.

There is a lot packed into this paragraph. First, Harris echoed what was the general consensus: Kruger, a former Deputy Solicitor General, was viewed as a "very sharp lawyer." As a former Deputy SG, she had developed a sterling reputation for intellect. But there were suggestions she would not be as willing to make waves. Apparently she was something of a moderate on the California Supreme Court! Kruger also very publicly declined President Biden's invitation to serve as Solicitor General. (I wrote about Kruger here, here, here, and here.) Second, Childs, who had been nominated to the D.C. Circuit, was viewed as candidate who would face the "least resistance." (I wrote about Childs here and here.) But did Harris recommend Kruger or Childs? No, she backed Jackson. Why? Third, Harris drew a contrast between Kruger and Jackson. The former was "cautious" and the latter was "bold."

I know I am widely ridiculed on the right when I discuss judicial courage. But progressives get it. They understand intrinsically that the primary limitation of a Supreme Court justice is not her intellect or precedent, but fortitude. Democrats are not interested in appointing an intellectual who exhibits caution to the Supreme Court. VP Harris recognized this dynamic fully. Caution may be fine for the lower courts, but it is not the order of the day for SCOTUS. Courage is. Really, courage is important on all levels, but especially on the Supreme Court where the stakes are higher, and pressure is stronger. And a judicial nominee's record must clearly demonstrate by word and deed their courage. In that regard, Justice Jackson was the ideal pick for the Supreme Court, and has justified her selection with everything she has done on the bench. Maybe we should ask Harris to help pick Republican nominees for the Supreme Court?

The post How John Eastman helped AG Harris Get Elected, and why VP Harris Thought Leondra Kruger was too "Cautious" for SCOTUS, While KBJ Would Be "Bold" appeared first on Reason.com.

8/18/1920: The Nineteenth Amendment is ratified.

The post Today in Supreme Court History: August 18, 1920 appeared first on Reason.com.

American Anarchy: The Epic Struggle between Immigrant Radicals and the US Government at the Dawn of the Twentieth Century, by Michael Willrich, Basic Books, 480 pages, $35

The lawmaking and policing powers of late 19th and early 20th century America did not think anarchist agitators deserved the protective penumbra of our Constitution. After Emma Goldman immigrated to the United States in 1885 from czarist Russia, she became a dynamic and hugely popular traveling lecturer on anarchism and other rebellious causes, such as draft resistance and contraception. Consequently, she was arrested a lot—and in 1919, along with hundreds of other accused anarchists, she was deported to what was now Bolshevik Russia. (Goldman's version of anarchism was not the free market kind; she wanted to eliminate private property as well as the state.)

Many anarchists saw a bright side to these legal fights: an opportunity to preach their beliefs in a courtroom setting, where the press often amplified their message. The anarchists sentenced to death in the notorious 1886 Chicago Haymarket bombing case spent three days in court laying out their beliefs; in one of their own trials, Goldman and her sometime consort and lifelong comrade, Alexander Berkman, settled for five hours of speaking their anarchist minds.

Berkman did more than lecture against the state and capitalism; in 1892 he decided to try to kill a murderously strikebreaking Carnegie Steel factory manager, Henry Frick. (While he shot and stabbed Frick, he failed to kill him.) This did not help public opinion of their cause. Neither did the fact that Leon Czolgosz, the 1901 assassin of President William McKinley, was a self-proclaimed anarchist who claimed that Goldman's rhetoric had "set me on fire."

In American Anarchy, the Brandeis historian Michael Willrich argues that those legal battles surrounding anarchism in America forged two distinct and opposing elements of modern American policing and law.

On one hand, the anarchists' enemies, from New York City cops to military intelligence to the departments of Labor and Justice, built a wider and more intrusive system of political surveillance and repression to quell and expel the anarchists. These systems' techniques—often relying on frequently unreliable, nativist, and paranoid citizen snoops and snitches—might seem quaint in the post–Edward Snowden age. They also seem especially brutal, given the cops of that era's habit of giving "the third degree" (that is, terrible beatings) to seditious radicals, and to people the officers merely assumed were seditious radicals. Many prosecutions hinged on the accuracy, or not, of some cop's written notes on what a suspect had allegedly said in public.

This repressive apparatus, Willrich writes, was "cobbled…together by putting public power in the hands of private civilian operatives, harnessing local police to national purposes, and drawing upon surveillance technologies developed both in the U.S.-ruled Philippines and in the internal immigrant 'colonies' of New York." The result was "an inefficient and stunningly violent operation that foiled few actual plots, put thousands of people on trial for speaking out against capitalism or the war….and showed an almost total disregard for…constitutional liberties."

And that planted the seeds of these battles' second great effect: Ironically, they ultimately made First Amendment doctrine more respectful of free expression. After the crackdown on the anarchists died down, and past the Cold War repressions under the Smith Act, it became more difficult to imagine anyone could go to jail in America solely for saying or writing a political heresy. Even when people are targeted for their speech, propriety requires that a more substantial charge be added. (The modern inheritor of the mantle of "enemy for whom constitutional protections can be ignored" is the drug seller and user, though different amendments are implicated.)

Three prosecutions during the World War I–era crackdown on political dissidents under the Espionage Act ended up before the Supreme Court. Free expression lost every time. But in Abrams v. United States, based on a 1918 expansion of the Espionage Act known as the Sedition Act, a dissent signed by two justices established an attitude toward the First Amendment's reach that became standard over the course of the 20th century.

In August 1918, the Army Corps of Intelligence Police had arrested a group of Russian immigrants in New York for distributing allegedly seditious pamphlets. The defendants insisted that the literature—many copies of which were tossed out windows for passersby on the street—was not meant to impede the ongoing U.S. war efforts against Germany, that being the basis for many of the charges. The literature was rather opposed to U.S. interference in revolutionary Russia, with whom we were not at constitutionally declared war.

The Abrams defendants were represented by Goldman's lawyer, Harry Weinberger. His role in Willrich's narrative is as central as hers and Berkman's. (Willrich argues that the war on anarchists essentially created the modern figure of the civil liberties lawyer.) The Supreme Court upheld the convictions, 7–2. But a dissent authored by Justice Oliver Wendell Holmes (who had written the earlier, bad decisions in the Espionage Act cases) laid out a First Amendment vision that more strictly limits when government could constitutionally punish expression: only if said expression represents a "present danger of immediate evil or an intent to bring it about."

After reading the dissent, a future founder of the American Civil Liberties Union wrote to Weinberger that "we are going to put it to some use all right." Civil libertarians in and out of the judiciary have been doing so ever since, in ways that have expanded Americans' expressive rights.

***

Things got predictably worse for civil liberties and for anarchists as the war went on. The 1918 Immigration Act, as Willrich sums it up, "authorized the secretary of labor to deport any person identified as a noncitizen and an anarchist." Even your individual beliefs could be elided, since "being a member of an organization that advocated 'anarchistic' ideas was now sufficient cause for deportation." Having built your life here productively for decades and having a family was not enough to save you from being grabbed and shipped out, if a government official thought you didn't believe the state should exist. (In 1903, during the post-Czolgosz wave of anti-anarchist action, Congress passed an immigration law that barred entry to anarchists, though it was difficult to enforce and in its first seven years caught a mere 10 anarchists among millions of immigrants entering.)

The story of the anarchist crackdown is, for good reasons, often used as a crackerjack historical example of the anti-liberty madness that even the supposed land of the free can descend to. This wave of anarchist repression was indeed destructive to many people and organizations—the Industrial Workers of the World, for example, were nearly annihilated by mass raids and arrests.

But the aftermath of these authoritarian spasms suggests we should give at least half a cheer for the Constitution. The rights it lays out were sorely dishonored, but at least they could be called upon eventually.

After World War I ended, President Woodrow Wilson commuted sentences for more than 125 Espionage Act prisoners. One assistant secretary of labor—Louis Post, who actually respected the Constitution—canceled 1,140 deportation orders, nearly three-quarters of the cases he was able to review when briefly in command of the process. The notorious 1919 and 1920 Palmer Raids sent 500 accused radicals to Ellis Island for deportation, but as public opinion and the grinding of the courts turned against the mania, only 23 of them were actually deported. And in 1933, President Franklin Roosevelt gave a general amnesty to the remaining World War I–era political prisoners.

Contrast that with Russia, where many of the anarchists were deported. The Bolshevik state murdered many of them, including two of the Abrams defendants.

Willrich's richly detailed study is especially relevant today, as that expansive sense of First Amendment rights that Willrich traces back to Holmes' Abrams dissent is under fresh fire from legal academics who see the amendment as a barrier to progressive change, from young Americans who think certain possibly hurtful things ought not be legally spoken, and from a culture that in general seems increasingly and angrily eager to shut opponents up. This valuable book shows one big reason why an expansive reading of the First Amendment is important: Without it, human beings have been beaten by cops and exiled from their home, just for saying or writing things the authorities don't like.

Goldman, for one, thought America was better than that. She once told a huge crowd in New York City that when people like her denounced war and conscription, they did this not because "we are foreigners and don't care." They had come here "looking to America as the promised land," and they grappled with the country's errors "precisely because we love America."

The post When Attacks on Anarchists Accidentally Improved Free Speech Law appeared first on Reason.com.

Amid all the competing headlines of the 2024 election, there may be no more bread-and-butter issue—literally—than how much Americans are paying to put food on their tables. The GOP is gearing up to attack the Biden-Harris administration for escalating grocery store bills, while presumptive Democratic nominee Kamala Harris has now responded with her own plan to fight higher food prices. 

One of the hottest items in this political food fight is unquestionably the ongoing litigation from the Federal Trade Commission (FTC) attempting to block the Kroger-Albertsons grocery store merger. A host of Democratic lawmakers recently joined the legal fight, arguing that any potential merger would raise prices, increase food deserts, and disproportionately hurt unionized labor. As part of her new food price plan, Harris included a call for aggressive antitrust crackdowns in the food and grocery industry, mentioning the Kroger-Albertsons merger by name in her speech this week.

None of the arguments against the merger make much sense on the merits, but the FTC—and the Democratic Party writ large—are stacking the legal deck to achieve a predetermined outcome that conveniently aligns with their policy priorities.

The saga started back in October 2022, when The Kroger Company and Albertsons Companies Inc. (the parent company for popular grocery chains like Safeway and Acme, among others) announced their plans for a $24.6 billion merger. The FTC promptly launched a 16-month investigation, culminating in a lawsuit in federal court to block the proposed merger.

Kroger is the fourth-largest grocery store chain in America—behind Walmart, Amazon, and Costco—and Albertsons is the fifth-largest. Once merged, the combined company would rise to third on the list. On the surface, this may seem to provide some support for the FTC's position, but American shoppers would be wise to read the fine print.  

In truth, if the deal were to proceed, a merged version of Kroger and Albertsons would still only make up 9 percent of overall grocery sales. To put this in further perspective, consider that Walmart—the nation's largest grocery provider—would continue to operate more stores (including its Sam's Club outlets) than a Kroger-Albertson combo and maintain grocery revenue that is more than twice that of the merged company. 

One could easily argue, in other words, that far from being a monopoly, a Kroger-Albertsons joint venture would be the best hedge against potential monopolies forming among the even-more-dominant firms above it on the grocery store food chain. But incredibly, the FTC pretends that two of those larger companies don't exist in the marketplace at all simply by working with their own definitions.

The FTC contends that only local brick-and-mortar supermarkets (what one might think of as a "traditional" grocery store) and hypermarkets (such as Walmart or Target, which sell groceries alongside other goods) count in the market for groceries. This narrow definition completely circumvents wholesale-club stores (such as Costco) and e-commerce companies that sell groceries (such as Amazon). 

Given that Amazon and Costco just happen to be the second- and third-largest grocery retailers in the United States, the agency is blatantly gerrymandering the definition of the marketplace. The agency's longstanding position is that the only relevant market is stores where consumers can buy all or nearly all of their weekly groceries, which begs the question: Has anyone at the FTC stepped foot inside a Costco recently? Many Americans use club stores like Costco and BJ's Wholesale Club as their primary grocery stores, with around 15 percent of Americans ages 18–34 reporting that they do most of their grocery shopping at Costco.  

Pretending that the internet doesn't exist makes even less sense. As the International Center for Law and Economics notes, 25 years ago a mere 10,000 households took part in online shopping, whereas today 12.5 percent of consumers (or over 16 million people) purchase their groceries "mostly or exclusively" online. Amazon is also preparing to make its own big push into brick-and-mortar grocery retailing as well, with CEO Andy Jassy saying last year that the company must "find a mass grocery format that we believe is worth expanding broadly."

Beyond the FTC's tortured marketplace definitions, its arguments for the alleged harms of a conjoined Kroger-Albertsons are equal parts unconvincing and outdated. In its complaint, the agency points to escalating grocery prices in recent years, and Harris echoed this by stating that she would enact a "ban on price gouging on food and groceries" by directing the FTC to impose "harsh penalties" on grocers. She also pledged to continue aggressive antitrust enforcement in the food sector, going so far as to highlight the Kroger-Albertsons merger as an example of the type of deal that could increase prices. However, as many commentators have pointed out, food price increases likely have more to do with inflation than any lack of competition in grocery markets.

In addition to the consumer price harms the FTC alleges, over half of the agency's legal complaint focuses on the alleged harm the proposed merger would cause to the unionized workers at Kroger and Albertsons. Both companies are heavily unionized—in contrast to Walmart and Amazon—and the agency claims that a combined company would have more leverage over unions given that the unions would no longer be able to play one company off against the other as a negotiating tactic. This glosses over the fact that the demand for labor is particularly competitive in the retail sector broadly, and workers could easily just jump ship to a different employer in the face of any exploitative terms pushed by the merged firm.

A final concern highlighted by some Democratic lawmakers is that a merged company could result in more store closures that lead to geographical areas within which there are few or no grocery options. Once again, this ignores the rise of club stores like Costco and online/home delivery grocery options. These alternatives reduce the plausible areas within which such food deserts can take hold, showing once again a poor understanding of the modern grocery marketplace.

Despite the many dubious underpinnings of the FTC's challenge, it fits with the Biden administration's aggressive antitrust emphasis over the past four years. While some observers were holding out hope that a Harris administration might curtail overzealous antitrust enforcement, her new food price agenda has poured cold water all over that (already wishful) thinking.

The post Harris Joins the FTC's Food Fight Against Kroger-Albertsons Merger appeared first on Reason.com.

8/17/1988: Republican party nominates George H.W. Bush for President. He would appoint David Souter and Clarence Thomas to the Supreme Court.

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An April 1 federal indictment charged two men, Antonio Venti and Michael Kuilan, with supplying the drugs that killed transgender activist Cecilia Gentili in February. Among other things, Venti and Kuilan are accused of causing Gentili's death by distributing a mixture of heroin and fentanyl, a felony punishable by a mandatory minimum of 20 years in prison and a maximum of life.

Gentili "was tragically poisoned in her Brooklyn home [by] fentanyl-laced heroin," Breon Peace, the U.S. attorney for the Eastern District of New York, said in a press release. "Fentanyl is a public health crisis. Our Office will spare no effort in the pursuit of justice for the many New Yorkers who have lost loved ones due to this lethal drug." The indictment "delivers a strong message to anyone who profits from poisoning our communities with illicit drugs," New York City Police Commissioner Edward Caban added. "It is imperative that we continue to hold distributors accountable for their callous actions."

That self-righteous stance obscures the role that drug warriors like Peace and Caban played in killing Gentili. If Venti and Kuilan were "callous," how should we describe public officials who are dedicated to enforcing laws that predictably cause tens of thousands of deaths like this one every year?

Those laws create a black market in which the composition and potency of drugs is uncertain and highly variable. They also push traffickers toward highly potent drugs such as fentanyl, which are easier to conceal and smuggle. As a result, drug users like Gentili typically don't know exactly what they are consuming, which magnifies the risk of a fatal mistake. The "poisoning" that Peace and Caban decried therefore is a consequence of the policies they were proudly enforcing in this very case.

In this context, it would be perverse to hold Gentili responsible for causing her own death. Peace and Caban instead blamed Venti and Kuilan, which might seem more plausible until you consider the complexities of illicit drug distribution. As the Drug Policy Alliance (DPA) noted, "People who sell drugs rarely know the exact contents of their drug supply or a given dose. Research shows drug mixing is typically done at much higher levels of the supply chain."

It is clear neither Kuilan nor Venti intended to kill Gentili. Yet the mandatory penalties they face are much more severe than the federal penalties for voluntary or involuntary manslaughter and New York's penalties for criminally negligent homicide. That distinction hinges on the legal status of the drugs they sold, as opposed to their culpability in Gentili's death.

Prosecutions like these make a mockery of justice. "Drug-induced homicide laws, mandatory minimum laws, and other severe penalties that people face when they sell or share drugs that result in a fatal overdose primarily punish people involved with low-level selling who often use drugs themselves," the DPA noted. The New York Times reported that Venti, who was previously convicted of "petty larceny and attempted drug sales," is an electrician who has "struggled with drug addiction." Even drug users who merely share purchases with friends or relatives have been prosecuted for causing their deaths.

These attempts to convert accidental overdoses into homicides are dangerous as well as morally dubious. They "cost lives because fear of prosecution deters people from seeking help in an emergency," the DPA argues. "Drug-induced homicide prosecutions may have the unintended consequence of people failing to seek medical help in a drug overdose situation, resulting in increased likelihood of death."

Prohibition, in short, created the hazard that killed Gentili. It compounded that hazard by fostering the use of additives such as fentanyl and the animal tranquilizer xylazine (which was also detected in Gentili's blood). And it made the resulting overdoses more perilous by discouraging prompt intervention. The answer, according to Peace and Caban, is zealous enforcement of the same laws that produced this disaster.

Frank Tarentino, special agent in charge of the Drug Enforcement Administration's New York Division, concurred. "Fentanyl is a deadly drug that dealers mix into their product and has accounted for 70% of drug related deaths nationwide," he said in Peace's press release. "Drug poisonings take too many lives too soon from communities nationwide and DEA is committed to bringing to justice those responsible."

If Americans truly demanded accountability from "those responsible" for drug-related deaths, they would start with the politicians and law enforcement officials who are perversely committed to making drug use as dangerous as possible.

The post Don't Blame Dealers for Fentanyl Deaths. Blame Drug Warriors. appeared first on Reason.com.

Recently, federal district courts in the Fifth and Sixth Circuits enjoined the new Title IX regulations in their entirety. These courts declined to sever three provisions that injure the plaintiff from the remainder of the scheme. Both courts of appeals declined to stay those rulings. The Solicitor General asked the Supreme Court to narrow those injunctions to three provisions that the plaintiffs allege injure them. By a 5-4 vote, the Court denied the SG's stay application in Department of Education v. Louisiana. The Court issued a per curiam opinion, which was joined by Chief Justice Roberts and Justices Thomas, Alito, Kavanaugh, and Barrett. Justice Sotomayor dissented, joined by Justices Kagan, Gorsuch, and Jackson.

It would be wrong to assume that Justice Gorsuch is Bostocking again on transgender rights. The four dissenters upheld the injunction against that three critical provisions that redefine sex discrimination to include gender identity, regulate sex-separated facilities like bathrooms, and redefine hostile environment harassment. Sotomayor's dissent explains that the plaintiffs' "alleged injuries flow from those three provisions." And this measured dissent, which lacks any of the vitriol we've seen of late, was probably tailored to keep Justice Gorsuch's join. Sotomayor explains:

For now, on the briefing and record currently before us, I would stay the preliminary injunctions except as to the three provisions above, in keeping with the traditional principle of equitable remedies that"relief afforded [to] the plaintiffs" must not "be more burdensome than necessary to redress the complaining parties." . . .

At this juncture, however, enjoining the application of any other part of the Rule needlessly impairs the Government from enforcing Title IX and deprives potential claimants of protectionsagainst forms of sex discrimination not at issue in respondents' suit.

What, then, was the disagreement? The Justices fractured on severability. Indeed, severability, along with vacatur and nationwide injunctions, are among the most unresolved areas of the Court. In recent years, Justices Thomas, and later, Justice Gorsuch, have called for a re-examination of severability doctrine. That Justice Gorsuch dissented here likely reflects his nuanced views on severability. He rejects the notion that courts can "vacate" rules, in large part because of standing doctrine. To Justice Gorsuch, if a provision does not injure a person, it cannot be enjoined.

But where is Justice Thomas on this issue?  And Justice Barrett has been very skeptical about granting preliminary relief. She seems to be trending to the position advanced by Sam Bray that there should not be a fixation solely on the likelihood of the merits–or a preview of the merits question. But that is precisely what the per curiam opinion did here.

The majority per curiam opinion only had this to say about severability:

In this emergency posture in this Court, the burden is on the Government as applicant to show, among other things, a likelihood of success on its severability argument and that the equities favor a stay. On this limited record and in its emergency applications, the Government has not provided this Court a sufficient basis to disturb the lower courts' interim conclusions that the three provisions found likely to be unlawful are intertwined with and affect other provisions of the rule. Nor has the Government adequately identified which particular provisions, if any, are sufficiently independent of the enjoined definitional provision and thus might be able to remain in effect.

Here, Justice Kavanaugh's Labrador concurrence provided the rule: the Court focuses almost exclusively on likelihood of success on the merits. There is no discussion at all about irreparable harm. By contrast, Justice Sotomayor's dissent expressly discusses the balance of harms:

By blocking the Government from enforcing scores of regulations that respondents never challenged and that bear no apparent relationship to respondents' alleged injuries, the lower courts went beyond their authority to remedy the discrete harms alleged here. The injunctions this Court leaves in place will burden the Government more than necessary. The injunctions will also affect the public. Individuals in the respondent states will be deprived of guidance related to their rights under Title IX, of updates to the processes schools must follow in investigating their complaints of sex discrimination, of protections from retaliation should they file a complaint, and of much more.

These interests are absent in the majority's opinion.

The majority's only discussion of the "equities" concerns how quickly the lower courts will hear oral argument. That is not really a weighing of the equities. This analysis throws any sort of four-factor test out the window. Again, I think Justice Kavanaugh was correct in Labrador. But it provides further rejection of Justice Barrett's Does v. Mills analysis.

And what about Justice Thomas? Unless you believe that the Court has a writ of erasure, and can "vacate" rules, the notion of enjoining provisions of Title IX that inflict no injury needs to be explained. Now in Corner Post, Justice Kavanaugh zealously defended the vacatur, especially with regard to entities that are not regulated. But other members of the majority, including Justices Thomas, Gorsuch, and Barrett, were mum.

There is a lot here going on in the vacatur/severability debate. I think the Court did not want to get into that thicket with a shadow docket case. They likely thought it sufficient now to deny relief, without weighing in on whether other provisions should be put on ice. If I had to guess, Justice Kavanaugh and/or Chief Justice Roberts wrote this per curiam opinion.

This issue will likely come back to the Court probably later this term, with a cert grant before January. If Trump prevails, and the SG witches positions, the Court will probably DIG the case, and issue a Munsingwear vacatur. Skrmetti would likely suffer a similar fate. The Court can decide even fewer cases!

The post Severability on the Shadow Docket: SCOTUS Splits 5-4 On Whether Entirety of Title IX Regulations Must Be Enjoined appeared first on Reason.com.

Just heard that one: "[H]e gives twice who gives promptly : payment rendered promptly is worth twice as much," though I take it that this can be used for anything (e.g., requested advice) and not just payment. Apparently stems from Publilius Syrus, though perhaps it was old when he was young.

Thanks to Fred Triem for passing this along.

The post "Bis Dat Qui Cito Dat" appeared first on Reason.com.

A Michigan couple sued when their local township passed an ordinance to prevent them from opening a cemetery. This week, in a victory for property rights, a judge ruled in the couple's favor and threw out the ordinance entirely.

As Reason reported in January, Peter and Annica Quakenbush wanted to open a "green" cemetery, allowing people to bury their loved ones in a natural and environmentally friendly manner, free of chemicals like formaldehyde and coffins containing metal. They specifically intended to establish a conservation burial ground, in which decedents would be buried in biodegradable coverings like cotton shrouds or wooden caskets and the burial sites would be marked by natural landmarks like rocks or native trees. The site would otherwise remain an undisturbed forest.

The Quakenbushes bought a 20-acre plot near Brooks Township and started putting together the necessary paperwork. But local officials had other plans in mind, and in June 2023, the Brooks Township Board passed an ordinance prohibiting the establishment of all new cemeteries.

"In the past, cemeteries elsewhere have taken up large amounts of sometimes otherwise productive land," the ordinance declared. "Cemetery landscaping, grass cutting, monument repair and upkeep costs have increased dramatically over time. The problems associated with abandoned or 'orphan' cemeteries have increased throughout Michigan, and citizens look to the local municipal government…to take over abandoned or orphan cemeteries."

According to the Quakenbushes' lawsuit, after they first inquired about establishing their cemetery in February 2022, a zoning official emailed the township's legal counsel. "It is our general recommendation that new private cemeteries not be allowed within the Township except under certain very limited circumstances," the attorney replied. "Almost certainly, at some time in the future (whether in a few decades or the distance [sic] future), the family members of the deceased individuals will no longer own the parcel involved. What happens to the burials then? In all likelihood, it would devalue the  property and make it unmarketable or difficult to sell."

"My response to that is, what does it matter? It's not your property," Renée Flaherty, an attorney with the Institute for Justice who represented the Quakenbushes, told Reason in January.

Besides, there were numerous mechanisms in place to prevent that outcome: Establishing a conservation burial ground in accordance with the Green Burial Council's criteria, as is the Quakenbushes' intent, requires obtaining a conservation easement—preventing the land from being used for other purposes—and partnering with a land conservancy that can maintain the property in perpetuity.

Michigan state law also requires all private cemeteries to establish an "endowment and perpetual care trust fund," with $50,000 to start and monthly deposits of "not less than 15% of all proceeds received."

"Nearly 250 people had reserved a burial plot even while the ban was in place," a local FOX affiliate reported.

The Quakenbushes sued to overturn the ordinance as a violation of due process. The township filed a motion to dismiss the lawsuit. This week, after hearing oral arguments, Newaygo County Circuit Court Judge David Glancy not only dismissed the township's motion but found the ordinance unconstitutional.

A written order was not available at press time; a representative of the Newaygo County Circuit Court tells Reason that the court directed the plaintiffs' attorneys to prepare a ruling, which the judge will review in a later hearing.

"We're excited and feel vindicated by this ruling," the Quakenbushes said in a statement released by the Institute for Justice. "We are delighted that the judge understood that Brooks Township's ordinance violated our right to use our property and operate our cemetery."

"The Green Burial Council (GBC) is pleased to learn that Newaygo County, Michigan Circuit Judge David Glancy rejected Brooks Township's attempt to throw out a lawsuit against the 'cemetery ban' ordinance," the GBC said in a statement to Reason. "The Green Burial Council has stated before, that we believe Brooks Township's ordinance stood on a weak foundation of misinformation about green burial's negative impact on soil and water, and other similar fears. Though individuals may experience genuine trepidation about a naturally interred body's impact on their environment, local governments can easily find scientific evidence proving no such impact when burial practices are performed according to industry standards."*

UPDATE: This piece has been updated to include a statement from the Green Burial Council.

The post Michigan Officials Tried To Stop a 'Green' Cemetery. They Just Lost in Court. appeared first on Reason.com.

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

Peter and Annica Quakenbush want to use their 20-acre property in rural Brooks Township, Mich. as a green cemetery and nature preserve, but township officials banned all cemeteries to stop them. This week, however, a state trial court noted that it's "Zoning 101" in Michigan that officials can't ban legitimate land uses—and ruled from the bench that the county is violating the state constitution. A rational-basis win at the motion-to-dismiss stage? Eureka! Click here to learn more.

1. EPA economist has severe allergies. When a nearby coworker starts wearing cologne that causes reactions, economist asks to be moved from a cubicle to an office with a door. EPA refuses but says he can work from home. (Coworker also refuses to stop wearing cologne.) Economist says he doesn't want to WFH as he actually likes interacting with colleagues (just not with cologne). District court: EPA did enough. D.C. Circuit: Lots of facts here, talk to a jury. Dissent: WFH sounds pretty good to me.
2. "Although Fresh Line chickens and turkeys, according to allegations we accept as true, were raised strictly indoors, the approved product labels depict birds freely roaming outside a barn." Does a member of the Animal Legal Defense Fund have standing to sue the Department of Ag and challenge its approval of this feathered propaganda? D.C. Circuit: The member alleges the label is misleading, but that means she already knows it's misleading. So she won't be misled. (And who cares what anyone else thinks.) So she doesn't have an injury. Case dismissed.
3. A century ago, when zoning laws were shiny and new, they were a favorite tool for targeting racial minorities. City of Cromwell, Conn.: As a nation, we've evolved since then. What we like to use our zoning laws for now is targeting people with mental-health disabilities. Cool? Second Circuit: Decidedly uncool―and unlawful under the Fair Housing Act. But the mismatch between the jury's award of $181k in compensatory damages and its award of $5 mil in punitive damages was so large as to violate the Due Process Clause's limit on excessive punitive damages. The punitive damages are reduced to $2 mil.
4. Driver pulls over to fix his malfunctioning GPS; a Waterbury, Conn. police officer knocks on the window, and driver hands over his driver's license and gun permit and tells officer there's a legal pistol in the driver's side door. Yikes! Officer violently drags him out of the car, handcuffs him, detains him in squad car for half an hour, and searches the driver's car and trunk. Second Circuit: Having a lawful gun doesn't give police carte blanche to arrest you for over half an hour and ransack your car. No qualified immunity
5. One man is murdered and another grievously wounded in Lebanon, Penn. in drug-money dispute. Three people were seen leaving the scene of the crime; one pleads guilty to a 20-count criminal information, naming one of the others seen as a co-conspirator. At the latter man's trial, the court reads aloud to the jury the entirety of the former man's criminal information—without having him testify—and he's convicted, sentenced to life. Third Circuit: A clear violation of the Confrontation Clause. Habeas granted.
6. The first rule of ex post facto challenges to sex-offender registration and residency requirements is that the sex offenders lose. Fourth Circuit: Applying that hoary legal principle here, we conclude that the sex offenders lose.
7. Circuit split alert! In July, the Fourth Circuit (over a dissent) held that "geofence" warrants ordering Google to provide law enforcement with information about every accountholder who enters a particular area in a particular time period are totally cool under the Fourth Amendment. But lo! A mere month later, here comes the Fifth Circuit to tell us that these same warrants are, in fact, totally bogus under the Fourth Amendment! This problem can only be solved by SCOTUS (or by Google, which has apparently changed the way it stores data to put a stop to these warrants no matter what the courts say).
8. This Sixth Circuit opinion is an absolute banger for anyone who's a huge fan of the Social Security Administration's org chart or who gets super-excited when federal courts reaffirm that the Appointments Clause of Article II doesn't really pose any obstacle to federal agencies' doing whatever they want so long as the nominal agency head says the right magic words. The slim minority of you who fall into neither category can probably give it a miss.
9. Cleveland, Ohio woman is found in a park in 1974, fatally stabbed. Near her body is a newspaper with a bloody palm print and a bloody pillowcase from a nearby hotel, both with ties to another man. Despite no physical evidence linking the woman's husband, he's convicted, spends 46 years in prison—and is exonerated in 2021. (He died six months after his acquittal.) He sues the detectives' estates (they've since died) and the city of Cleveland. Sixth Circuit: He's too late suing the detectives' estates, but a jury should have the chance to consider whether evidence was unconstitutionally withheld. Partial concurrence/dissent: The claims against the detectives' estates should go forward, too.
10. Under federal law, anyone who receives more than $10k in cash in the course of their trade or business has to make certain disclosures to the gov't. In 2021, Congress amended the law so that "cash" now includes "digital assets," such as cryptocurrency and monkey pictures. Crypto folks sue. Sixth Circuit: And their enumerated powers, Fourth Amendment, and First Amendment claims can go forward. But their vagueness and self-incrimination claims are not yet ripe.
11. Security guard at a Cincinnati public library posts an insensitive meme to his personal Facebook page concerning the BLM protests. He takes it down less than 24 hours later, but some of his Facebook friends who work with him at the library complain. He's fired from his job. He sues for First Amendment retaliation: Sixth Circuit: He spoke on a matter of public concern, and nobody could think that his post would actually disrupt the library. He wins. Dissent: How are we supposed to weigh whether his interest in speaking outweighs potential disruption at work? We should defer to the library.
12. After a warning, Barron County, Wisc. officer lets canine loose into home to apprehend man wanted on several outstanding arrest warrants for violent crimes. The dog locates the man, and the K9 officer shouts that he'll call off the dog if the man shows his hands. Amid tortuous screams, the man explains he can't do that because of the dog trying to tear one of his arms apart. After about 2 minutes the dog is successfully commanded to stop. The arm is now severely disfigured. Qualified immunity? Seventh Circuit: Too many disputed facts to assess at this stage. Get thee to a jury.
13. You might think two affected firearms industry manufacturers, a gun association, and an individual are enough to make a federal case out of a new ATF rule reclassifying pistols equipped with "stabilizing braces" as "short-barreled rifles." But apparently 25 states—fully half of the Republic—needed to be plaintiffs as well. And their AGs can now ring the register (and prepare talking points for future gubernatorial runs) because their additional presence seems to have been just enough to convince the Eighth Circuit to find the rule likely is arbitrary and capricious under the APA and therefore is preliminarily enjoined. Dissent: A judge in Texas already vacated this rule so how can we enjoin it?
14. Man in Columbia County, Ark., wanted for a murder earlier that evening, is said to be driving a white SUV. Officer finds a matching SUV, blocks the vehicle into its parking space, gets out and asks the driver his name. Which—in an unusual tactic for a wanted murderer—he honestly provides. However, he then puts the SUV in reverse, slamming into the cop car, and is about to drive over the curb when the officer shoots him dead through the window. His estate sues for excessive force. Eighth Circuit: Dude, he just murdered someone. Qualified immunity. Dissent: The facts of the encounter are genuinely disputed.
15. Iowa passes law requiring school libraries to remove any books that are not "age-appropriate" and prohibiting any "program, curriculum, test, survey, questionnaire, promotion, or instruction relating to gender identity or sexual orientation to students in kindergarten through grade six." Lawsuits are filed and the law is enjoined. Eighth Circuit: Enjoined a little too hastily. Why don't you take another look at it and hew a little closer to the Supreme Court's standards.
16. Conservation group sues Minnesota, saying the state isn't doing enough under the Endangered Species Act to protect the threatened Canadian lynx. Minnesota agrees to a consent decree that imposes regulations on trappers to prevent harms to the lynx. But wait! Three pro-trapping organizations intervene and object to the consent decree. Eighth Circuit: The decree seems fair and reasonable to us and doesn't appear to violate state administrative law.
17. Los Angeles police looking for a stolen limo encounter a limo driving by, the license plate of which doesn't match the vehicle because of DMV error. Yikes! Escalating rapidly, roughly a dozen officers (with a helicopter assist) conduct a "high-risk" stop, swarming the innocent and terrified occupants—a mom and two teens. When the limo occupants sue, alleging excessive force, the district court grants qualified immunity to the individual officers, and then a jury rules for the city on the remaining claims against the LAPD. Ninth Circuit: It was clearly established that reasonable suspicion a vehicle is stolen isn't a constitutionally sufficient basis to go all Heat on the car, so plaintiffs get another crack at their claims against the individual officers. But jury instructions were OK, so verdict for the city affirmed. Dissent: Given how the jury was instructed, it's clear they didn't think the officers acted unreasonably and would have rejected the individual-officer claims too, so any qualified-immunity error was harmless.
18. With no warrant, Los Angeles police snoop onto driveway ("curtilage") and spot an uncle handling meth in his nephew's garage. Drug convictions ensue for both. They push for post-conviction relief, claiming their lawyers messed up by not raising the obvious: Police can't snoop onto curtilage without a warrant, so the evidence should've been tossed. Ninth Circuit: Nephew's lawyer dropped the ball since the police had no right to invade his curtilage. But the uncle? It's not his house. Concurrence: Few things are more serious than a (literal) overstep of gov't power. Protection of curtilage, tracing back to English common law, is an ancient right deeply rooted in our history.
19. Children's Health Defense, a nonprofit founded by RFK Jr., wants to distribute information via social media about what it views as the dangers of vaccines. But Meta Platforms, operator of Facebook, adds warnings these views are, in fact, bunk. The nonprofit sues, alleging that Meta violated their First Amendment rights and even effectuated an unconstitutional "taking" by removing their donation button. Ninth Circuit: But Meta is not the gov't, so all of these wacky claims fail. Dissent: All of the wackiest claims fail, but there are enough allegations that Meta was acting on behalf of the gov't that the First Amendment claims should go forward.
20. Mexican national is connected to the fatal shooting of a Border Patrol agent in the United States. Seven years later, FBI agents interrogate him in a Mexican prison. After reading him his Miranda rights, they hit him with everything: good cop, bad cop; your friends told us a different story; we're not charging you with anything. He doesn't bite. Then his lawyer says, you were just in the mountains looking to rob drug dealers, and that's not a crime, so tell these guys what they want to know. So he does. Ninth Circuit: That is extremely ineffective assistance of counsel. Dissent: We should make this guy who admitted to participating in the murder of a federal agent work at least a little harder before we vacate his sentence.
21. Mexican national—who had previously been removed from the country—reenters, gets caught, and is charged with illegal reentry. His lawyer collaterally challenges his initial removal, arguing that he has major brain damage and unknowingly waived his right to counsel in the first case because when he was told the gov't would not pay for his attorney and he would have to "hire" one, he thought that precluded him from getting a pro bono attorney. Ninth Circuit: The waiver was invalid. Dissent: Oh, come on. He was expressly told about the availability of pro bono counsel.
22. Man abducts pregnant woman from her home at gunpoint, forces her to steal stacks of money from the bank where she works. The man faces kidnapping and robbery charges, along with a solicitation of murder charge based on a jailhouse informant, who said that the man asked him to kill the woman, her husband, and baby for $10k. The informant also testified that his motives were altruistic and he'd received no parole consideration—a lie. Ninth Circuit (over a dissent): And that lie results in a habeas grant.
23. And in amicus brief news, IJ—and some friends—are asking the Supreme Court to hold that a civil rights plaintiff is a "prevailing party" when they win a preliminary injunction and then the gov't capitulates, by changing the law being challenged or otherwise mooting the case before a final judgment on the merits. Last year, the Fourth Circuit—in line with every other circuit—ruled that indeed they are, which entitles them to attorneys' fees under Section 1988. And that's a holding the Court should not disturb.
24. And in en banc news, the Eleventh Circuit will reconsider its decision that the Houston County, Ga. sheriff's office is violating Title VII by offering health insurance that lacks coverage for sex changes.

New case! Indiana's state motto is "The Crossroads of America," and for years Indiana police have exploited one of the nation's biggest shipping hubs to profit from that status―plucking parcels en route from the East Coast to the West, subjecting them to K-9 sniffs, opening them, and, if they contain money, suing to forfeit the money in Indiana state courts. What violation of Indiana law supports these forfeitures? Indiana doesn't say. Since 2022, the state has sued to forfeit more than $2.5 mil in this way. Now, IJ has teamed up with a small California jewelry company (whose money was recently snatched up in Indiana) to file a class-action lawsuit and put a stop to Indiana's money grab.

New case! Friends, do you love meat but have ethical or environmental qualms about the more than 34 million cows and 8 billion chickens killed annually to satisfy America's appetite for it? Then you're the sort of consumer UPSIDE Foods wants to appeal to with cultivated chicken, which is grown from real chicken cells without the need to kill animals and has been greenlit for interstate sale by the FDA and USDA. The state of Florida, however, is not a fan: At the behest of in-state agricultural interests, it recently banned cultivated meat from the state. But Florida can't wall itself off from the interstate market just to please favored in-state interests. So this week IJ and UPSIDE joined forces to challenge this protectionist ban. Learn more here.

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

This was just announced today; if you're interested, please apply, and if you know people who might be interested, please pass this along to them.

Opportunity for Post-JD Scholars

The Hoover Institution at Stanford University is seeking an outstanding early-career legal scholar interested in researching free speech law, in preparation for seeking an academic position at a law school or elsewhere.

If selected, you would work on your own research with the guidance and supervision of Senior Fellow Eugene Volokh, who has moved to Hoover after 30 years as a Professor of Law at UCLA School of Law. You would be appointed a Research Fellow with the Center for Free Expression, for one year from July 2025 through June 2026. The term may be renewed, if both you and Hoover agree, for one extra year. You would be expected to be physically present at the Institution, working full-time, with no competing major professional commitments.

There is no teaching obligation, so you would have maximum time to research and write. However, you would be expected to help organize and participate in occasional conferences, workshops, and lectures, and to work on occasional projects with Volokh or other Senior Fellows. These tasks would all be related to free speech law and are expected to help promote your own research and future career.

Eligibility Criteria:

• You must have a JD or its equivalent by June 2025.
• You must commit to staying for at least one year (July 2025 through June 2026). The date range might be moved back slightly if required because of a judicial clerkship that will keep you occupied until July to September 2025.
• A judicial clerkship (past or upcoming) is not required, though it is a plus.
• Work experience as a lawyer is not required, though some such experience is a plus.
• A PhD in another discipline is not required, though neither is it frowned upon.
• You must have written a publishable law journal article already while in law school or shortly after. Whether it has already been published or not does not matter, so long as it is essentially complete. That article need not have been on free speech law.
• You must be planning to work on free speech law, understood broadly. This is not limited to First Amendment law, but includes federal or state statutes, common law rules, state constitutional provisions, transnational or international legal provisions, and rules of important private institutions—so long as they relate to the regulation (or deregulation) of speech, press, expression, assembly, expressive association, petition, and the like. Likewise, it includes doctrinal, historical, theoretical, and empirical scholarship.
• We prefer projects on important but insufficiently studied topics, rather than on ones that have already been heavily researched by others.

To Apply, Please Submit:

• Your resume
• Your law school transcript
• Plans for at least two research projects, described in some detail; draft Introductions for what would become journal articles tend to be a good format
• At least one published or completed and publishable research article
• Any other articles, whether published or in draft
• Contact information for three professors or other legal scholars who can speak to your intellect, writing, or research agenda

Requirements:

The Research Fellowship position provides full Stanford benefits with a salary range of $80,000-125,000. Depending on individual circumstances, a housing and relocation allowance may also be provided.

Completed applications must be submitted online by Deadline to Apply: February 1, 2025

Please direct questions to Julie Park at julp@stanford.edu.

About Stanford University's Hoover Institution:

The Hoover Institution on War, Revolution, and Peace is a public policy research center devoted to the advanced study of economics, politics, history, political economy, and law—both domestic and foreign—as well as international affairs. It is located on the Stanford University campus and is an academic unit of the University.

The Hoover Institution is an equal employment opportunity and affirmative action employer. All qualified applicants will receive consideration without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability, protected veteran status, or any other characteristic protected by law.

The post Hiring a Research Fellow in Free Speech Law for 1 or 2 Years, at the Hoover Institution (Stanford) appeared first on Reason.com.

The Fourth Amendment's protection against unreasonable searches and seizures extends to the length of a seizure, a federal court ruled last week, significantly restricting how long law enforcement can retain private property after an arrest.

"When the government seizes property incident to a lawful arrest, the Fourth Amendment requires that any continued possession of the property must be reasonable," wrote Judge Gregory Katsas of the U.S. Court of Appeals for the District of Columbia in a unanimous ruling.

Most courts of appeal to pass judgment on the issue—namely, the 1st, 2nd, 6th, 7th, and 11th circuits—have held that, once an item is seized, law enforcement can retain the item indefinitely without violating the Fourth Amendment. These precedents have allowed police to retain personal property without clear legal grounds, effectively stripping people of their property rights merely because they were arrested. The D.C. Court of Appeals' ruling complicates this general consensus.

Though law enforcement does not have to return property "instantaneously," Katsas wrote, the Fourth Amendment requires that any "continuing retention of seized property" be reasonable. So while police can use seized items for "legitimate law-enforcement purposes," such as for evidence at trial, and are permitted some delay for "matching a person with his effects," prolonged seizures serving no important function can implicate the Fourth Amendment, the court ruled.

Given that the D.C. court finds itself in the minority on the question, some say that the case may be primed for the Supreme Court if the District chooses to appeal. "This case has potential to make national precedent," Paul Belonick, a professor at the University of California, San Francisco law school, tells Reason. "The influential D.C. Circuit deliberately intensified a circuit split and put itself in the minority of circuits on the question, teeing it up cleanly for certiorari."

The plaintiffs each had their property seized by D.C.'s Metropolitan Police Department (MPD). Five of the plaintiffs were arrested during a Black Lives Matter protest in the Adams Morgan neighborhood of D.C. on August 13, 2020.

As they were arrested, MPD officers seized their phones and other items. Though the protesters did not face any charges and were, in Katsas' words, "quickly released," MPD retained their phones for around a year. Some of the plaintiffs had to wait over 14 months to get their property back.

In the meantime, the plaintiffs say that they were forced to replace their phones and lost access to the important information on the originals, including personal files, contacts, and passwords. "The plaintiffs have alleged that the seizures at issue, though lawful at their inception, later came to unreasonably interfere with their protected possessory interests in their own property," Katsas explained.

"MPD is aware of the ruling and will continue to work with our partners at the United States Attorney's Office to ensure that our members are trained appropriately to ensure compliance with recent rulings," a spokesperson for MPD tells Reason.

"Practically, this case is important because police have been exploiting a gap in the Fourth Amendment," Andrew Ferguson, a professor at American University's Washington College of Law, tells Reason. "In situations where there is a lawful arrest, but no prosecution, there are no clear rules on retaining personal property. In these cases, police have been confiscating phones to punish protestors."

Michael Perloff, the lead attorney for the plaintiffs, agreed that the D.C. Circuit's decision could set an important precedent going forward. "Nationally, we've seen litigants attempt to challenge similar practices only to fail because the court concluded that the Fourth Amendment does not limit the duration of a seizure," he tells Reason. "Moving forward, we are hopeful that the D.C. Circuit's opinion will lead courts to reconsider those rulings and, instead, enforce the Fourth Amendment as fully as the framers intended."

The post Police Cannot Seize Property Indefinitely After an Arrest, Federal Court Rules 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.

President Biden launched an attack on the independence of the federal judiciary on July 29th when he endorsed the packing of the U.S. Supreme Court. He did this in an op-ed in the Washington Post and then in a partisan speech that same day commemorating the 60th anniversary of the passage of the Civil Rights Act of 1964. His Vice President, Kamala Harris, endorsed Biden's comments and indicated that she would be more aggressive on this issue than Biden has been. Packing the Supreme Court is thus a key issue in the 2024 presidential and senatorial elections, as GOP Senate candidates running in red or purple states like Montana, Ohio, Pennsylvania, Wisconsin, Michigan, Nevada, and Arizona should make clear.

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.

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