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.

The post Harris and Trump Offer Terrible Housing Policies appeared first on Reason.com.

Yesterday, in United States v. Abbott, the en banc US Court of Appeals for the Fifth Circuit ruled in favor of Texas in a case where the federal government is suing the state for installing floating buoy barriers in the Rio Grande River to block migration and drug smuggling, thereby creating safety hazards and possibly impeding navigation. The Biden Administration claimed this violates the Rivers and Harbors Act of 1899.

Texas argues the federal government incorrectly interpreted the statute, but also asserts that one of the "invasion" clauses of the Constitution gives it the power to install the buoys even if federal law forbids it. Article I, Section 10, Clause 3 of the Constitution states that "[n]o state shall, without the Consent of Congress, . . . engage in war, unless actually invaded, or in such imminent Danger as will not admit of delay." Texas claims illegal migration and drug smuggling qualify as "invasion," and therefore the Constitution gives the state the power to take military action in defiance of federal statues, and even in the absence of congressional authorization for war.

In an 11-7 decision largely divided along ideological lines (with more conservative judges in the majority), the en banc Fifth Circuit overturned appellate panel and trial court decisions that had ruled in favor of the federal government.

The majority decision is based on statutory arguments, concluding that the relevant stretch of the Rio Grande is not covered by the Rivers and Harbors Act because it isn't "navigable." On that issue, I think both sides have some good arguments, and I will leave it to analysts with greater interest and expertise. Significantly, the majority does not address Texas's "invasion" argument, thereby not overturning the panel and trial court rulings against Texas on that issue.

Texas has also advanced the "invasion" argument in another case, one dealing with the legality of the states SB 4 law, giving law enforcement broad powers to detain and expel undocumented migrants. So far, both the district court and a Fifth Circuit panel have ruled against the state on that point.

In a recent Lawfare article and an amicus brief in this case, I have explained why illegal migration and drug smuggling do not qualify as "invasion" under the text and original meaning of the Constitution. An "invasion" is an organized armed attack. In addition, I outline the dangerous implications of Texas's argument. If accepted by courts, it would give states nearly unlimited power to start wars without congressional authorization, and give the federal government a similar blank check to suspend the writ of habeas corpus (thereby allowing it to detain people, including US citizens, without charges).

In a concurring opinion in the en banc court, prominent conservative Judge James Ho argues that the court should have addressed the invasion argument. He contends that the meaning of "invasion" is a "political question" that the judiciary is not permitted to address. Other courts that have ruled that invasion is a political question have simultaneously concluded that the matter is left up to the federal government (while, in several cases, also simultaneously concluding that illegal migration does not qualify as invasion). Judge Ho, however, argues that courts must defer to the Texas governor's assertion that there is an invasion, at least so long as the governor is acting in "good faith."

This theory has breathtakingly awful implications. It implies a state governor can declare the existence of an "invasion" virtually any time he or she wants, and then "engage in war" in response—even without authorization from Congress. Moreover, Ho argues the governor can continue military action indefinitely, even if the federal government has had time to consider the situation, and opposes the state's actions.

The "good faith" restriction is not much of a constraint. Political partisans can persuade themselves that almost any interaction with  foreigners they find threatening qualifies as an "invasion." If illegal migration and drug smuggling qualify, why not economic competition (many "national conservatives" view imports as a national security threat)? Why not supposedly harmful cross-border cultural influences (dangerous foreign ideas and art forms are "invading" our people's minds!)? And that list can easily be extended.

If this conclusion were required by the text and original meaning of the Constitution, perhaps there would be no way around it. But that isn't so. As explained in my article and amicus brief, historical and textual evidence overwhelming demonstrate that only an organized armed attack qualifies as an "invasion." As James Madison put it, invasion is "an operation of war." Nor is there any original meaning evidence indicating that courts must defer to state governments on this issue.

The "political questions" doctrine is a judicial invention, not something embedded in text and original meaning itself. I am skeptical that the doctrine makes much sense at all. Even if it should be used in some contexts, there is no reason to think the meaning of "invasion" is the kind of issue that courts cannot or should not resolve. The meaning of that term is at least as clear as that of many other words in the Constitution that courts routinely interpret.  At the very least, the political question doctrine should not be interpreted to mandate the absurd consequence that a single state can start a war virtually anytime it wants—since there is virtually always some substantial amount of illegal migration and cross-border smuggling, at least so long as we have drug prohibition and severe migration restrictions.

Judge Ho also argues that actions by nongovernmental groups can qualify as "invasion." This may be true in some situations, as in the case of attacks by insurgents or terrorist groups. It does not follow that illegal migration, drug smuggling, or other ordinary criminal activity qualify.

Moreover, most of the evidence he cites relates to a situation in the 1870s where the governor of Texas used state militia to combat large-scale cross-border banditry from Mexico. This episode—occurring almost a century of the enactment of the Invasion Clause—sheds little light on the text and original meaning. In a recent opinion, Supreme Court Justice Amy Coney Barrett rightly cautions against  reliance on "[h]istory (or tradition) that long postdates ratification." This is the kind of thing she had in mind.

In addition, the 1870s history doesn't really support Judge Ho's position. In an 1874 letter to the Attorney General (which Judge Ho helpfully reprints in an appendix to is opinion), Texas Governor Richard Coke argued that the Mexican bandits had gone beyond ordinary criminality, and "were making war on the people of Texas and their property." He also stressed that Texas state forces were "not authorized to cross the river for purposes of retaliation, nor to make war on the territory or any of the people of Mexico, but only to pursue marauders going out of Texas, and take from them and bring back property found in their possession belonging in Texas." This stops short of claiming a right to "engage in war." Perhaps most important, the Governor acknowledged that "the officers of the United States Government… have the power to prevent… enforcement" of his order to the Texas troops, and that he will withdraw the order if the federal government requests it. That's a far cry from the claim of virtually unlimited power to declare an "invasion" and engage in war in response claimed by Governor Abbott today.

The dissenting opinion by Judge Dana Douglas has additional criticisms of Ho's opinion on the "invasion" issue. I don't agree with all of her arguments. But she's right to point out that Texas's position "would enable Governor Abbott to engage in acts of war in perpetuity."

In a concurring opinion, Judge Andrew Oldham (another prominent conservative jurist), contends that Judge Ho is wrong to argue the majority was required to address the invasion issue. I think Judge Oldham is probably right about that question, but will leave it to commentators with greater expertise on civil procedure.

Yesterday's ruling is not a final resolution of the buoy case. Technically, it only lifts the preliminary injunction against the buoys issued by the district court. However, the majority's analysis makes clear that the trial court will have to resolve the case in favor of Texas on the issue of "navigability." If so, the invasion question need not be addressed, since the en banc majority signaled it does not have to be.

However, the invasion argument is still in play in the SB 4 case, and Texas—and perhaps other states—are likely to continue making it in the future. So long as they persist in doing so, I will keep on explaining why that argument is dangerously wrong.

UPDATE: In the original version of this post, I indicated that the vote in the en banc Fifth Circuit was 11-6, rather than the correct figure of 11-7. I apologize for the mistake, which has now been corrected.

The post En Banc Fifth Circuit Rules for Texas in Water Buoy Case, but Doesn't Resolve Issue of Whether Illegal Migration Qualifies as "Invasion" appeared first on Reason.com.

In its important recent immigration decision in Department of State v. Munoz, the Supreme Court ruled there are virtually no constitutional limits on the federal government's power to bar non-citizen spouses of American citizens from entering the country. In the process, Justice Amy Coney Barrett's majority opinion (written on behalf of herself and the five other conservative justices) commits serious errors in historical analysis, and violates Justice Barrett's own well-taken strictures about the appropriate use of history in constitutional analysis.

Sandra Munoz is a US citizen whose husband, Luis Asencio-Cordero (a citizen of El Salvador) was barred from entering the US to come live with her, because US consular officials claimed he had ties to the MS-13 criminal drug gang (which connectoin Ascencio-Cordero denies). Munoz filed suit, claiming that, given that the constitutional right to marriage was implicated, the State Department was at the very least required to reveal the evidence that supposedly proved her husband's connection to the gang.

In arguing that there is no originalist or historical justification for US citizens to claim a right to entry for their non-citizen spouses, Justice Barrett cites historical evidence from the 1790s:

From the beginning, the admission of noncitizens into the country was characterized as "of favor [and] not of right." J. Madison, Report of 1800 (Jan. 7, 1800)….  (emphasis added); see also 2 Records of the Federal Convention of 1787, p. 238 (M. Farrand ed. 1911) (recounting Gouverneur Morris's observation that "every Society from a great nation down to a club ha[s] the right of declaring the conditions on which new members should be admitted"); Debate on Virginia Resolutions, in The Virginia Report of 1799–1800, p. 31 (1850) ("[B]y the law of nations, it is left in the power of all states to take such measures about the admission of strangers as they think convenient"). Consistent with this view, the 1798 Act Concerning Aliens gave the President complete discretion to remove "all such aliens as he shall judge dangerous to the peace and safety of the United States." 1 Stat. 571 (emphasis deleted). The Act made no exception for spouses—or, for that matter, other family members.

Almost everything in this passage is either false or misleading. The quote from James Madison's Report of 1800, does not, in fact, indicate that Madison believed the federal government has blanket authority to exclude immigrants for whatever reason it wants. Far from it. Madison was arguing that the Alien Friends Act of 1798 (part of the notorious Alien and Sedition Acts) was unconstitutional because the federal government lacks such power. Here is the passage where the quote occurs:

One argument offered in justification of this power exercised over aliens, is, that the admission of them into the country being of favor not of right, the favor is at all times revokable.

To this argument it might be answered, that allowing the truth of the inference, it would be no proof of what is required. A question would still occur, whether the constitution had vested the discretionary power of admitting aliens in the federal government or in the state governments.

Note that Madison does not even admit that admission of immigrants is "a favor."  He just assumes it is for the sake of argument, then goes on to argue that the Alien Act is unconstitutional regardless, because the relevant power isn't given to the federal government (this is what he argues in the rest of the Alien Act section of his Report). The 1798 Act Concerning Aliens, also quoted by Justice Barrett, is the very same Alien Friends Act denounced as unconstitutional by Madison, Thomas Jefferson, and many others. Opposition to the Act was so widespread that no one was ever actually deported under it, before Thomas Jefferson allowed it to expire upon becoming president in 1801.

I think Jefferson and Madison were right to argue the Alien Friends Act was unconstitutional. But, at the very least, legislation whose constitutionality was so widely questioned at the time cannot be relied on as strong evidence of the original scope of federal power in this area.

The quote by Gouverneur Morris at the Constitutional Convention is not about immigration restrictions at all. It is part of a speech defending his proposal that people must be required to have been citizens for at least fourteen years before being eligible to become US senators. The proposal was rejected by the Convention (which eventually decided on a nine-year requirement). It was denounced by several other prominent members of the Convention, including James Madison and Benjamin Franklin. Madison argued it was "unnecessary, and improper" and would "give a tincture of illiberality to the Constitution" (see Records of the Federal Convention of 1787, Vol. 2, pp. 235-37 (Max Farrand, ed., 1911)).

Morris's speech in favor of this failed proposal is not a reliable guide to the sentiments of the Convention. Still less is it indicative of the original meaning understood by the general public at the time of ratification (which is the relevant criterion for most originalists, including Justice Barrett, who has said the original meaning of a constitutional provision is "the meaning that it had at the time people ratified it").

Finally, the Debate on the Virginia Resolutions in the Virginia Report of 1799-1800, also quoted by Justice Barrett, was a record of debates in the Virginia state legislature over the Virginia Resolution (drafted by Madison) a statement asserting that the Alien Friends Act is unconstitutional. The passage Barrett quotes is from a speech by a dissenting member of the Virginia state legislature opposing the Resolution. The majority, however, sided with Madison.

Given this history, the debate over the Resolution cannot be relied on to justify virtually unlimited federal power over immigration by spouses of citizens, or any other migrants. And because Madison and the majority in the state legislature argued that the entire Alien Friends Act was unconstitutional, they understandably did not bother to argue that there was a separate issue regarding exclusion of non-citizen spouses of citizens. To my knowledge, no such case involving spouses came up during the short time the Act was in force.

Justice Barrett also relies on dubious 19th century history:

The United States had relatively open borders until the late 19th century. But once Congress began to restrict immigration, "it enacted a complicated web of regulations
that erected serious impediments to a person's ability to bring a spouse into the United States." Din, 576 U. S., at 96 (plurality opinion). One of the first federal immigration
statutes, the Immigration Act of 1882, required executive officials to "examine" noncitizens and deny "permi[ssion] to land" to "any convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge." 22 Stat. 214. The Act provided no exception for citizens' spouses. And when Congress drafted a successor statute that expanded the grounds of inadmissibility, it again gave no special treatment to the marital relationship….

This legislation was enacted almost a century after the Founding. So its relevance to original meaning is highly questionable, at best. Moreover, it was adopted in an era of widspread nativist and racist hostility to Chinese immigration, at a time when the Supreme Court also upheld a wide range of domestic racially discriminatory legislation, as well. The Immigration Act of 1882 was enacted by the same Congress and in the same year as the deeply racist Chinese Exclusion Act. The latter legislation was upheld by the Supreme Court in a terrible 1889 decision that completely ignored the arguments Madison and other Founders had raised against a broad federal power over immigration. The immigration policies and legal decisions of this era were part and parcel of the same mentality that also led to Plessy v. Ferguson.

In her recent concurring opinion in United States v. Rahimi, an important Second Amendment case, Justice Barrett warned about careless reliance on post-ratification history in constitutional interpretation:

[F]or an originalist, the history that matters most is the history surrounding the ratification of the text; that backdrop illuminates the meaning of the enacted law. History (or tradition) that long postdates ratification does not serve that function. To be
sure, postenactment history can be an important tool. For example, it can "reinforce our understanding of the Constitution's original meaning"; "liquidate ambiguous constitutional provisions"; provide persuasive evidence of the original meaning; and, if stare decisis applies, control the outcome…. But generally speaking, the use of postenactment history requires some justification other than originalism simpliciter….

As I have explained elsewhere, evidence of "tradition" unmoored from original meaning is not binding law… And scattered cases or regulations pulled from history may have little bearing on the meaning of the text.

Here, Barrett relies heavily on "evidence of 'tradition' unmoored from original meaning" and "scattered… regulations" enacted more than a century after ratification. In fairness, the nineteenth century laws in question were enacted closer in time to the ratification of the Fourteenth Amendment in 1868, which is where the Supreme Court has said the right to marry arises from (albeit, when it comes to the federal government, the right is read back into the Fifth Amendment).  But the 1880s was still a long time after ratification. Moreover, the laws in question were enacted at a time when racial and ethnic bigotry undermined enforcement of much of the original meaning of the Fourteenth Amendment, and such bigotry heavily influenced immigration legislation and jurisprudence.

Barrett also relies on the history in part because the Supreme Court's test for whether the Due Process Clauses of the Fifth and Fourteenth Amendment protect an unenumerated right  (like right to marry) require the right to be "deeply rooted in this Nation's history and tradition." But a combination of badly misinterpreted 1790s history and 19th century history heavily tinged by racial and ethnic bigotry are poor means for applying that test.

As Justice Barrett recognizes later in her opinion, in later years Congress did in fact enact legislation giving spouses of US citizens a presumptive right to enter the United States, though there are exceptions, such as the one for "unlawful activities" at issue in this case. That suggests there may in fact be a historically rooted right to spousal migration, even if not an absolute one (most other constitutional rights aren't completely absolute, either).

Overall, I think Amy Coney Barrett has been a pretty good justice since her controversial appointment just before the 2020 election. But Munoz is far from her finest hour.

The Court's badly flawed handling of history doesn't necessarily mean the bottom-line decision was wrong. Even the dissenting liberal justices agreed the government was justified in denying Asencio-Cordero a visa, reasoning that the possible ties to MS-13 were a sufficient justification to outweigh the right to marry in an immigration case (and, as Justice Gorsuch notes in a concurring opinion, the government did eventually reveal the evidence in question). Alternatively, one can argue the right to marriage doesn't necessarily include a broad right to have your spouse present in the same jurisdiction. There may be other possible justifications for the outcome, as well.

But the Supreme Court should not have relied on a badly flawed interpretation of post-enactment history to justify a sweeping power to run roughshod over marriage rights in immigration cases, even in situations where the right to marry might otherwise impose a constraint. That's especially true given that similar reasoning could potentially be used to apply to other constitutional rights. If the Alien Friends Act of 1798 and 1880s immigration legislation qualify as relevant evidence, they could be used to justify almost any immigration restriction.

Obviously, Munoz is far from the first Supreme Court decision where the justices effectively exempted immigration restrictions from constitutional constraints that apply to other federal laws. Trump v. Hawaii, the 2018 travel ban decision is another recent example, and there are other such cases going back to the 19th century. But Munoz is still notable for its particularly slipshod historical analysis.

The post The Supreme Court's Dubious Use of History in Department of State v. Munoz appeared first on Reason.com.

Longtime Cato Institute vice president David Boaz passed away on June 7. He was one of the most effective and principled advocates for libertarianism in our time. In his last major public speech, delivered at a Students for Liberty conference in February, David cautioned us against excessive pessimism, but also warned about the dangerous rise of illiberal nationalism as a major threat to freedom around the world. The speech was transcribed by Andy Craig, and is reprinted here with permission:

Too often, libertarians (and also conservatives) believe that we are actually on the road to serfdom. I want to give you a more optimistic view along with a warning and a challenge. I'm going to start with some history.

For millennia, with few exceptions, the world was marked by despotism, slavery, hierarchy, rigid class privilege, and literally no increase in the standard of living over hundreds of years. And then, the Western world experienced the Enlightenment, a new perspective on the world based on reason, science, a belief in progress, and freedom.

And the ideas about freedom eventually came to be known as liberalism. Human rights, markets, property rights, religious toleration, the value of commerce, the dignity of the individual. Life, liberty and the pursuit of happiness. Peace, human flourishing.

That brought about what Deirdre McCloskey calls the Great Fact of human history, the enormous and unprecedented growth in living standards, starting around 1800 in the Western world. And these ideas spread to more aspects of society and more parts of the world. They gave Europe a century of peace and progress, from roughly 1815 to 1914. The Great Fact spread from Northwestern Europe and America to the rest of Europe, to Latin America, to parts of Asia.

Liberal ideas were never perfectly realized. When they faded in the late 19th century, we got World War I, trade war, the Great Depression, and World War II, and some countries endured the horrors of communism and national socialism. Mercantilism, cronyism, bigotry and discrimination, political murders, authoritarianism, plagued and still plague parts of the world.

Even in our own country, in my own lifetime—and the interesting thing is most of these things are no longer true in your lifetime—but in my country, in my lifetime, we lived with military conscription, 90% marginal income tax rates, wage and price controls, restricted entry to transportation and communications, indecency laws, and Jim Crow.

It's a lot of change. Progress has been happening. After World War II, a renewed commitment to free trade, international rule of law, and constitutional liberal democracy brought about another long period of great power peace and prosperity. And the spread of property rights and market institutions to China, India, Latin, America, and even Africa has brought more than a billion people out of extreme poverty in just 25 years.

More and more of the world is respecting equal rights for people regardless of color, gender, religion, sexuality or language. Equal rights based on our common humanity. It was our liberal ideas that brought that about, and we should take pride in that. Of course, now we're more likely to call those liberal ideas libertarian, but our job is not done. We face the rise of illiberalism on both left and right in the United States and around the world with threats to liberty, democracy, trade, growth, and peace.

And so it remains to us to defend the constitutional order of our republic, to remind people over and over of the wonders that America has produced, how rare freedom and abundance have been in the world and the rules that are essential to their continuance.

There was a book some years ago called All I Really Need To Know I Learned in Kindergarten. Well, everything you need to know about politics, in a way, you learn in kindergarten, the fundamentals of freedom, the fundamentals of civilization: Don't hit other people, don't take their stuff, and keep your promises. If you apply those rules, you'll have a prosperous and peaceful society.

One more idea you wouldn't think needed to be said, is we libertarians, like most of us Americans, are liberals. Liberalism is a universal creed. We believe that all people are endowed with inalienable rights, that among these are life, liberty, and the pursuit of happiness. Not just some people. That idea is incompatible with political ideas based on 'blood and soil' or treating people differently because of race or religion.

So when you see self-proclaimed freedom advocates talking about blood and soil or helping a would-be autocrat overturn an election, or talking about LGBT equality as degeneracy, or saying we shouldn't care about government racism against Black people, or defending the Confederacy and the cause of the South, or joining right-wing culture wars and supporting politicians who want to use the state to fight their enemies, or posting Holocaust jokes and death threats on Twitter, recognize that for what it is. Speak up, fight back, tell people that's not America and it's certainly not libertarianism.

And while it's not actually un-libertarian to be anti-vaccine, it's stupid, and I'd rather recruit smart people. Can you believe that there are people who think an environmental extremist, tax-hiking, gun-grabbing, big spender who's also an anti-vaccine crank, would make a good Libertarian Party candidate? Meanwhile, before I move on, I just want to remind you, taxation is theft.

We libertarians spend a lot of time talking about what we're against, high taxes, unnecessary wars, crony capitalism, over-criminalization, treating people unequally because of who they are. And we should talk more about what we're for. As our Cato Institute mission statement says, individual rights, limited government, free markets and peace. But more than that, we're for those things because they help us achieve abundance and social harmony and human dignity and human flourishing. We want everyone to flourish, to be free, to pursue happiness in his or her or their own way.

I'm always happy to quote George Washington's letter to the Newport Synagogue. It's a little bit of archaic language. "It is now no more that toleration is spoken of as if it was by the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights. For happily, the government of the United States gives to bigotry, no sanction to persecution, no assistance."

Libertarian ideas are radical, yet deeply rooted in Western tradition, and we have a record to be proud of. We've been fighting ignorance, superstition, privilege and power for several centuries, and it is to those ideas and that struggle that we owe the best parts of our civilization. More often than libertarians often recognize, we live in a world of freedom and progress, imperfect freedom and imperfect progress to be sure, but real. We have extended the promises of the Declaration of Independence, life, liberty and the pursuit of happiness — I say that a lot, I like that phrase — to people to whom they had long been denied.

Around the world, more people in more countries than ever before in history enjoy religious freedom, personal freedom, democratic governance, the freedom to own and trade property, the chance to start a business, equal rights, civility, respect, a higher standard of living, and a longer life expectancy, and it is libertarian ideas and libertarian-minded people who have made that happen. We need to fight for those gains, especially here in America where the right and the left are battling over who gets to do the most to destroy liberty.

I was asked once by some skeptics what the most important libertarian accomplishment ever was. I thought for a moment and said the abolition of slavery. "Okay," they conceded. "Name another." Now, I thought if you had the abolition of slavery on your resume, you're ready to meet your maker. That's pretty good.

But I thought more carefully, and I said, bringing power under the rule of law. That was a revolutionary achievement. Constitutions, divided powers, consent of the governed, all of those things helped to constrain the natural human instinct to gain power over others. And constraining that instinct for power is our revolutionary achievement, but it's still incomplete.

It's what the Levellers and John Locke and the American Founders fought for, and the abolitionists. It's what the protesters in 1989 against communism fought for. It's what our friends in Russia and China and Egypt and Ukraine and Hong Kong fight for in challenging circumstances that we never face. It's what we fight for.

But nothing is guaranteed. Ideas we thought were dead are back. Socialism, protectionism, ethnic nationalism, anti-semitism. In what was once Ronald Reagan's party, we see people advocating something called national conservatism, which is old-fashioned, big government dressed up in new clothes. Protectionism, control of private enterprise, scapegoating of minorities.

They denounce the Enlightenment and liberalism. Some of them even advocate imposing a national religion. And that's why our job is not done. We now confront the rise of illiberalism on both left and right with threats to peace, liberty, democracy, trade and growth.

Our ancestors have faced similar challenges. Imagine the American Revolutionaries who thought they could take on the most powerful military in the world, and yet they dared and they won. Then they wrote a Declaration of Independence that is the most eloquent piece of libertarian writing in history, and they wrote a Constitution that did the things I'm talking about, putting constraints on power, dividing it between the three branches, dividing it between the two houses of Congress, dividing it between the states and the federal government. All of those kinds of things are classical liberal ideas that were first really brought forth here in America, and that's our heritage and that's our legacy.

But it keeps coming back. We also had the abolitionists who had to fight tyranny as well. There are some people who disparage talking about slavery. It's over, that's good, we should be proud of that. But we should also remember that when some people talk about the good old days, as if there was more freedom in the 19th century, when four million Americans were held in chattel slavery, held in bonds before the Civil War. So it was not exactly what you'd call a free society. And we could go through a lot of other things too, the restrictions on women's rights. God knows restrictions on gay rights wasn't even something people thought of, but people who were gay knew damn well they should keep it quiet.

Closer to our own time, in the 1940s, in the darkest days of war and a growing welfare state, three remarkable women stood up to challenge the establishment. Isabel Paterson, Rose Wilder Lane, and Ayn Rand, warned Americans that we were losing our founding values and freedoms, and they launched a movement. And some writers have said, "Why was it women who stood up? Where were the men? What were they doing?" Well, there were men. All three of those women wrote a book in 1943. In 1944, Hayek wrote The Road to Serfdom. So it wasn't just women, but we did have three founding mothers of the modern libertarian movement, and I think we don't make enough of that. We should have their pictures on everything.

I just read Tim Sandefur's book, Freedom's Furies, about these three women, and one of the things I kept noticing was everything he quotes from Isabel Paterson, it's like things we say today about big government. She anticipated it all, or maybe we got it all from her even though we don't know it. So that happened in the 1940s and they started a movement. In the 1970s, in the face of the government's three great accomplishments, Vietnam, Watergate, and stagflation, great scholars like Hayek and Friedman criticized the government's economic policies.

And along with some younger scholars, some of whom are now older scholars whose names you've heard, they changed them, and they launched another movement that restored a lot of American economic freedom. Not all of it, and some bad things kept happening, but we did make a lot of progress over the few years after that in repealing a lot of bad economic restrictions.

And now it's your turn to pick up the banner of liberty. Don't let it go. Fight illiberalism and authoritarianism wherever you find it. Extend liberty to more parts of the world and more parts of life. And make the 21st century the most liberal century yet. Thank you very much and good luck.

I don't fully agree with every point here. It's probably impossible to cover so much ground in so short a time without some oversimplification. But the core message is sound, and well-worth heeding.

Although we lack David's eloquence, Cato Institute scholar Alex Nowrasteh and I explained why the rise of nationalism is a major menace to liberty in somewhat greater detail in our recent National Affairs article, "The Case Against Nationalism."

No one person can replace David Boaz. But we can, as he said, "pick up the banner of liberty" and work to raise it to new heights.

The post David Boaz's Final Speech: "The Rise of Illiberalism in the Shadow of Liberal Triumph" appeared first on Reason.com.

David Boaz passed away today. Liberty has lost one of its greatest and most principled advocates. As the Cato Institute's longtime longtime vice president for public policy and executive vice president for over forty years, he—more than any other single person—built Cato into the world's leading libertarian think tank. His 2015 book The Libertarian Mind is one of the best and most accessible introductions to libertarian ideas. In an edited volume, The Libertarian Reader, David compiled a wide range of classic libertarian writings by leading thinkers.

Central to David's thought was the idea that libertarianism requires both a broad conception of the range of liberties that must be protected, and a broad view of the range of people entitled to that full protection. Thus, he advocated radically cutting back on government policies that violated economic liberty, such as taxation and welfare state spending. But he was equally concerned about those that threatened liberty of other kinds, such as immigration restrictions and the War on Drugs. And he repeatedly emphasized that the full range of liberties must be available to everyone—whether they be black or white, gay or straight, men or women, immigrants or natives.

Thus, in a 2010 article, he cautioned libertarians against nostalgia for an imagined past, where liberty was supposedly greater. While some types of government intervention were less prevalent in the 18th and 19th centuries, it was—he noted—also an era of slavery, segregation, and other forms of oppression that have since been at least in large part overcome.

David also repeatedly reminded libertarians that we must be concerned about dangers to liberty from both right and left.  Unlike some, he did not minimize or ignore the threat of right-wing authoritarian ethno-nationalism exemplified by the rise of Trump in the US, an similar movements in Europe. In his contribution to National Review's 2016 "Against Trump" symposium, David wrote that "From a libertarian point of view…. Trump's greatest offenses against American tradition and our founding principles are his nativism and his promise of one-man rule." He was right then, and remains right today.

I knew David for over thirty years, since I was an intern at Cato in 1992, during the summer after my freshman year in college. A small incident from that time illustrates David's simultaneous commitment to high standards and intellectual outreach.

In those days, Cato was housed in a small building, which included a storage room filled with books published by the Institute. I liked to go there and browse—it was more fun than the work I was assigned to do! Early one morning, David happened by the storage room, and saw me reading a book there.

"Mr. Somin," he asked, "did your paycheck come on time this week?"

"Yes, sir," I answered.

"Then, why," David inquired, "are you late to work?"

Whether they were a vice president or an intern, everyone at Cato had a job they should be focused on. David had little tolerance for slackers.

Duly chastened, I moved to get back to work. But David also made sure to point out that Cato interns were entitled to free copies of Institute publications. If I wanted to read that book (or any other Cato book), he said, I should simply take it home with me—and read it on my own time. He never forgot that developing and spreading ideas was the main focus of a think tank's mission.  And that is how I got copies of David's excellent edited volumes, Liberating Schools, and The Crisis in Drug Prohibition.

That same commitment to ideas and outreach made David a great promoter of libertarian thought to a wide range of audiences. He had the rare skill of always maintaining civility, while also never pulling his punches.

In later years, I became a Cato adjunct scholar, and—eventually—the Institute's Simon Chair in Constitutional Studies (in addition to my primary employment as a law professor at George Mason University). Over that time—thanks to David's support—Cato co-published two of my books, and I did various other projects with the Institute, as well. Thus, I often had the opportunity to work with David and learn from him. I could not help but admire both his unfailingly high standards, and his commitment to principle. Cato and other libertarian institutions should strive to continue his legacy.

In closing, I would like to extend my condolences to David's family, friends, and colleagues.

The Cato Institute has posted a summary of David's career, and tributes by many Cato scholars, here.

The post David Boaz, RIP appeared first on Reason.com.

An Indiana court recently touched off a firestorm of media attention and online debate by ruling that burritos and tacos are sandwiches. The decision exemplifies a longstanding issue in legal interpretation: how to figure out the "ordinary meaning" of words in a statute or regulation. It also highlights the absurdity of zoning rules restricting the development and use of property.

The case arose because developer Martin Quintana wanted to use a property he owned in Fort Wayne, Indiana for commercial purposes. In order to be able to do that, he had to get the Fort Wayne Plan Commission (a local government agency) to "upzone" the area from allowing single-family residential housing only, to allowing some types of commercial uses. The Commission was only wlling to do that in exchange for Quintana signing a "Written Commitment" (required at the behest of a local NIMBY group) under which only certain types of restaurants would be allowed in the area.  The restrictions imposed by the Commitment became new zoning rules for these tracts. Specifically, the Commitment bars "restaurants, including fast food-style restaurants," except for the following:

A sandwich bar-style restaurant whose primary business is to sell "made-to-order" or "subway-style" sandwiches (which by way of example includes, but is not limited to, "Subway" or "Jimmy John's", but expressly excludes traditional fast food restaurants such as "McDonalds", "Arbys" and "Wendys"), provided that any such restaurant shall not have outdoor seating or drive—through service….

One of the businesses Quintana recruited as a tenant for the new development is a Famous Taco establishment—a Mexican restaurant that (as the name implies) serves tacos and burritos. The Plan Commission contended the Famous Taco should be barred because these food options are not "sandwiches." Indiana Superior Court Judge Craig Bobay rejected that argument, concluding that burritos and tacos are, in fact sandwiches:

The proposed Famous Taco restaurant falls within the scope of the general use approved in the original Written Commitment. The proposed Famous Taco restaurant would serve made-to-—order tacos, burritos, and other Mexican-style food, and would not have outdoor seating, drive-through service, or serve alcohol. The Court agrees with Quintana that tacos and burritos are Mexican—-style sandwiches, and the original Written Commitment does not restrict potential restaurants to only American cuisine-style sandwiches. The original Written Commitment would also permit a restaurant that serves made-to-order Greek gyros, Indian naan wraps, or Vietnamese banh mi if these restaurants complied with the other enumerated conditions.

In Indiana, as in most jurisdictions, courts are generally required to interpret laws  (or, in this case, an agreement that has the force of law, by virtue of being embodied in a zoning restriction) in accordance with their "ordinary meaning." The Supreme Court of Indiana recently reiterated that rule in its February decision in Spells v. State.

Do tacos and burritos fall within the ordinary meaning of "sandwich"? It's hard to say. I think most Americans would not usually refer to these items as sandwiches. On the other hand, it's not hard to see why a taco or a burrito would fall under what most ordinary people would understand to be the general concept of a sandwich: meat and/or vegetables encased in bread or some other similar wrap. Thus, it may be that Judge Bobay was right to conclude that tacos and burritos are "Mexican-style sandwiches," even if few people would actually refer to them in that way. It all depends on whether ordinary meaning depends on usage or on people's intuitive theoretical understanding of the concept in question.

This ruling diverges from a controversial 2006 Massachusetts state court decision, which held that tacos, burritos, and quesadillas do not fall within the ordinary meaning of "sandwich," because that term normally refers to a food item encased in two pieces of bread, while these Mexican foods usually only feature one. Judge Bobay does not cite the Massachusetts precedent, which—in fairness—isn't binding in Indiana. He also doesn't consider the issue of whether a sandwich must have two pieces of bread, as opposed to just one.

To my mind, food encased in a single continuous piece of bread (or tortilla roll) still counts as a "sandwich." The top and bottom of a hamburger bun or hot dog roll are sometimes connected to each other. But that doesn't mean hamburgers and hot dogs can't qualify as sandwiches. My wife (who is both a lawyer and much more knowledgeable about food than I am) points out there are "open-face sandwiches" that use only one piece of bread.

Perhaps these kinds of issues reveal the limits of "ordinary meaning" interpretive rules. Ordinary people (at least those who aren't lawyers) usually just don't think about these kinds of conundrums. Thus, when an issue like whether burritos qualify as sandwiches comes up, there may not be any unequivocal "ordinary meaning" answer to the question at hand.

Whichever way you come down on the definition of "sandwich," this case also highlights the absurdity of zoning restrictions on development. Barring some kind of significant danger to public health or safety (of which there is no evidence here), Quintana should not have had to get special permission to use his property for commercial purposes in the first place. It makes even less sense to allow restaurants that serve "'made-to-order' or 'subway-style' sandwiches," but not those that serve other kinds of food. This distinction appears to be based on little more than the esthetic preferences of the Covington Creek Association, the NIMBY group that pressured the Plan Commission into imposing this restriction on the development.

Such NIMBYism causes real harm to both property owners (who are deprived of the right to use their own land as they see fit) and consumers who wish to patronize their services. I don't especially like tacos and burritos, myself. But many people do, which is why there is a substantial demand for restaurants like Famous Taco.

In a forthcoming Texas Law Review article, Josh Braver and I argue that exclusionary zoning rules restricting housing construction violate the Takings Clause of the Fifth Amendment. Restrictions on commercial development are a more complicated case. But under the originalist theories discussed in Part II of the Article, such restrictions also violate the right to use property protected by the Takings Clause, unless they protect against a serious threat to public health or safety, and thereby fall within the "police power" exception (see Section II.C). Things may be different under the living constitution approaches covered in Part III of the article.

The post Indiana Court Rules Burritos and Tacos Qualify as Sandwiches appeared first on Reason.com.

Bryan Caplan's guest-blogging stint has come to an end. We thank Bryan for his excellent contributions to the blog!

Here is a listing of his posts about his book Build, Baby, Build: The Science and Ethics of Housing Regulation. I myself also wrote a post introducing Bryan and the book.

1."Trillions"

2. "*Build, Baby, Build*: My Most Inexcusable Omission"

3. "The YIMBY Napkin"

4. "*Build, Baby, Build*: Responses to the Best Objections"

I think my forthcoming Texas Law Review article, "The Constitutional Case Against Exclusionary Zoning" (coauthored with Josh Braver), in some ways serves as a complement to Bryan's book. In the book, Bryan suggests that judicial review is "probably the best shot [at] radical housing deregulation," but doesn't elaborate further. Braver and I explain how such judicial intervention can happen, and why it should be done.

The post Compendium of Bryan Caplan's Guest-blogging Posts on His New Book "Build, Baby, Build: The Science and Ethics of Housing Regulation" appeared first on Reason.com.

Today is the 70th anniversary of Brown v. Board of Education. That ruling is one of the most famous decisions in the history of the Supreme Court, and probably the most widely praised. But many aspects of the ruling remain controversial, including elements of the Court's reasoning, and how the decision fits in with various types of constitutional theory.

In honor of the anniversary, the American Journal of Law and Equality is publishing a symposium on Brown. I am honored to be invited to contribute. A draft of my aricle, entitled "Brown, Democracy, and Foot Voting," is available on SSRN. Here is the abstract:

Traditional assessments of Brown's relationship to democracy and popular control of government should be augmented by considering the ways it enhanced citizens' ability to "vote with their feet" as well as at the ballot box. Brown played a valuable role in reinforcing foot voting, and this has important implications for our understanding of the decision and its legacy.

Part I of the article summarizes the relationship between foot voting and ballot box voting, and how the former has important advantages over the latter as a mechanism of political choice. Relative to ballot box voting, foot voting offers individuals and families greater opportunities to make decisive, well-informed choices. It also has special advantages for minority groups, including Blacks.

Part II considers traditional attempts to reconcile Brown and democracy, through arguments that the decision was actually "representation-reinforcing." While each has its merits, they also have significant limitations. Among other flaws, they often do not apply well to the Brown case itself, which famously originated in a challenge to segregation in Topeka, Kansas, a state in which – unlike most of the South – Blacks had long had the right to vote.

Part III explains how expanding our understanding of Brown to include foot voting opportunities plugs the major holes in traditional efforts to reconcile the decision and democratic choice. Among other advantages, the foot-voting rationale for Brown applies regardless of whether racial minorities have voting rights, regardless of whether segregation laws are motivated by benign or malevolent motives, and regardless of whether the targeted ethnic or racial groups can form political coalitions with others, or not.

In Part IV, I discuss the implications of the foot-voting justification of Brown for judicial review of other policies that inhibit foot voting, particularly in cases where those policies have a history of illicit racial motivations. The most significant of these is exclusionary zoning.

As I note in the article, it is difficult to produce a thesis on Brown that is both original and useful. More has been written about this decision than almost any other Supreme Court case. Readers will have to judge whether I managed to succeed.

The post The 70th Anniversary of Brown v. Board of Education appeared first on Reason.com.

Today, in Culley v. Marshall, the Supreme Court reached a dubious decision in an asset forfeiture property rights case, holding that the seizure of property through civil forfeiture requires a "timely hearing," it does not require "a separate preliminary hearing to determine whether the police may retain the car pending the forfeiture hearing." The justices split 6-3 along ideological lines. However, a concurring opinion by Justice Neil Gorsuch (joined by Justice Clarence Thomas) suggests there may be a majority in favor of a more fundamental challenge to the abusive asset forfeiture regimes that exist in many states.

Civil asset forfeiture enables the government to seize property that has allegedly been used in the commission of a crime, even if the owner has never been charged or convicted of anything. In many states, including Alabama (whose policies are at issue in Culley), law enforcement can then hold on to the property for many months before the owner is allowed to contest the seizure. Moreover, many states allow law enforcement to keep the proceeds from seized property, thereby creating an incentive to take as much as possible. Culley involves two Alabama cases where the owners of cars were subject to asset forfeitures as a result of the use of the vehicles by other people to conduct illegal drug transactions. The owners eventually managed to prevail in state court. But that process took many months. In the meantime, they were deprived of their vehicles, without any compensation.

Critics have long argued that such practices violate the Due Process Clauses of the Fifth and Fourteenth Amendments, which bar the government from  depriving "any person of life, liberty, or property, without due process of law." If the police can seize property and hold on to it for months on end without any meaningful process at all, that surely is not "due process of law."

In an opinion written by Justice Brett Kavanaugh, the Supreme Court nonetheless ruled that a separate "preliminary hearing" is not required in such cases, for two reasons. First, they contend the issue was resolved in two earlier Supreme Court precedents:

Ultimately, we need not reweigh the competing due process arguments advanced by the parties because this Court's decisions in United States v. $8,850, 461 U. S. 555 (1983), and United States v. Von Neumann, 474 U. S. 242 (1986), already resolved the issue. After a State seizes and seeks civil forfeiture of personal property, due process requires a timely forfeiture hearing but does not require a separate preliminary hearing….

The dispute in $8,850 arose when the Customs Service seized currency from an individual entering the United States, but then waited before filing for civil forfeiture of the currency…. The property owner argued that the delay violated due process….This Court concluded that a post-seizure delay "may become so prolonged that the dispossessed property owner has been deprived of a meaningful hearing at a meaningfultime." Id., at 562–563. The Court elaborated that timeliness in civil forfeiture cases must be assessed by "analog[izing] . . . to a defendant's right to a speedy trial" and considering four factors: the length of the delay, the reason for the delay, whether the property owner asserted his rights, and whether the delay was prejudicial. Id., at 564… Those factors are appropriate guides in the civil forfeiture context, the Court explained, because the factors ensure that "the flexible requirements of due process have been met…."

In Von Neumann, the Court addressed whether a timely forfeiture hearing, without more, provides the process that is due in civil forfeiture cases. See 474 U. S., at 249–251. The property owner there failed to declare the purchase of his new car upon driving it into the United States. See id.,at 245. A customs official determined that the car was subject to civil forfeiture and seized it. See ibid. The plaintiff filed a petition for remission of the forfeiture—in essence, a request under federal law that the Federal Government exercise its discretion to forgive the forfeiture. See id., at 245–246. The Government did not respond to that petition for 36 days. See id., at 246. The plaintiff sued, arguing that the Government's 36-day delay in answering the remission petition violated due process…. Justice Brennan's opinion for the Court broadly held that due process did not require a pre-forfeiture-hearing remission procedure in the first place….

This Court's decisions in $8,850 and Von Neumann resolve this case. As the Court stated in Von Neumann, a timely forfeiture hearing "satisfies any due process right"
with respect to a "car" that has been seized for civil forfeiture. 474 U. S., at 251; see also id., at 249. The Due Process Clause does not require a separate preliminary
hearing.

The second reason why the majority rejects the need for a pre-forfeiture hearing is the originalist argument that Founding-era evidence suggests it wasn't required:

Historical practice reinforces the holdings of $8,850 and Von Neumann that due process does not require preliminary hearings in civil forfeiture cases. Since the Founding era, statutes have authorized the Government to seize personal property and hold it pending a forfeiture hearing, without a separate preliminary hearing. For example, the first federal forfeiture law, the Collection Act of 1789, authorized the civil forfeiture of ships, goods, and merchandise involved in suspected violations of the customs laws…. The collector then filed a forfeiture action, which a court would "hear and determine . . . according to law." §36, id., at 47. While that action was pending, the seized property could remain in the custody of the collector." §25, id., at 43.…

The Collection Act did not require a separate preliminary hearing before the forfeiture hearing. Rather, the forfeiture "trial" supplied the opportunity for the property owner to challenge the collector's case.

In a forceful concurring opinion that reads more like a dissent, Justice Gorsuch outlines serious due process flaws in the current asset forfeiture regime, and in the process undermines the majorities arguments. Like Justice Sotomayor in her dissent for the three liberal justices, Gorsuch emphasizes the abusive practices of the modern asset forfeiture regime, and the fact that most of it is of relatively recent origin, arising from the growth of the War on Drugs.  This puts it in serious tension with text and original meaning:

To my mind, the due process questions surrounding these relatively new civil forfeiture practices are many. Start with the most fundamental one. The Fifth and Fourteenth
Amendments guarantee that no government in this country may take "life, liberty, or property, without due process of law." As originally understood, this promise usually meant that a government seeking to deprive an individual of her property could do so only after a trial before a jury in which it (not the individual) bore the burden of proof. See, e.g., 1 W. Blackstone, Commentaries on the Laws of England 134– 135 (1765) (Blackstone); Vanhorne's Lessee v. Dorrance, 2 Dall. 304, 315 (CC Pa. 1795) (Patterson, J.); Wilkinson v. Leland, 2 Pet. 627, 657 (1829) (Story, J.). So how is it that, in civil forfeiture, the government may confiscate property first and provide process later?

The answer, if there is one, turns on history. If, as a rule, the Due Process Clauses require governments to conduct a trial before taking property, some exceptions are just asdeeply rooted. And for just that reason, these exceptions, too, may be consistent with the original meaning of the Fifth and Fourteenth Amendments.

Gorsuch goes on to note that the Founding-era and Supreme Court precedents cited by the majority may not be generally applicable, because they arose in " the discrete arenas of admiralty, customs, and revenue law." That's true of the Collections Act, and also of $8850 and Von Neumann, the two modern precedents emphasized by Kavanaugh. But, as Gorsuch points out, these areas are likely to be special cases, exceptions to the general rule that the government may only seize property after a trial:

The reasons for the law's traditionally permissive attitude toward civil forfeiture in those three contexts may merit exploration, too. From a brief look, it seems they were
sometimes justified for reasons particular to their fields. In the early Republic, for example, once a ship involved in violations of the Nation's piracy or customs laws slipped port for a foreign destination, American courts often could not exercise jurisdiction over it or its crew, let alone its owners…. In many instances, the law recognized that seizing the ship, subject to postdeprivation procedures, represented "the only adequate means of suppressing the offence or wrong, or insuring an indemnity to the injured party." Harmony v. United States, 2 How. 210, 233 (1844) (Story, J.); see also 3 Blackstone 262 (1768) (justifying civil forfeiture in customs cases as necessary "to secure such forfeited goods for the public use, though the offender himself had escaped the reach of justice"). But if history sanctions that line of thinking, it's hard not to wonder: How does any of that support the use of civil forfeiture in so many cases today, where the government can secure personal jurisdiction over the wrongdoer? And where seizing his property is not the only adequate means of addressing his offense?

How indeed?

Notice that Gorsuch's reasoning effectively disposes of both of the main arguments advanced by the majority: $8850 and Von Neumann are not dispositive precedents, because both were customs cases, which are a special, distinct situation. For the same reason, the Founding-era evidence cited by Kavanaugh is also inadequate. It too focuses on customs legislation.

More generally, if Gorsuch is right to conclude that "a government seeking to deprive an individual of her property could do so only after a trial before a jury in which it (not the individual) bore the burden of proof," then the Alabama laws at issue in this case are clearly unconstitutional! A procedure under which the government can seize and hold on to property for many months before providing any kind of hearing clearly doesn't meet that standard. Ditto for the way in which Alabama (like many other states) effectively shifts the burden of proof onto the property owner.

Thus, by their own reasoning, Gorsuch and Thomas should have dissented. Even if a "separate preliminary hearing" isn't required, the government still may not seize property without holding a trial first, and a procedure that, as Gorsuch puts it, allows "it take and keep private property without a warrant or any other form of prior process" is clearly unconstitutional, and violates the requirement of a "timely" hearing.

Justice Sotomayor's dissenting opinion offers additional constitutional criticisms of the Alabama asset forfeiture system, and others like it. Like Gorsuch, she also highlights the perverse incentives created by the current system (which allows law enforcement to profit from seizures), ways in which that system disproportionately burdens the poor and disadvantaged, including property owners who don't have the resources for a prolonged legal battle. Losing the use of your car for many months may be only a moderate burden for the relatively affluent. It's a much bigger one for a poor or working class person. She also points out additional flaws in the majority's use of precedent.

From the standpoint of civil libertarians and property rights advocates, there is a silver lining to today's otherwise terrible decision: at least five justices seem open to issuing a broader ruling curbing asset forfeiture. In his concurring opinion, Gorsuch comes close to inviting litigants to file a broad challenge arguing that most asset forfeitures require a prior jury trial:

Why does a Nation so jealous of its liberties tolerate expansive new civil forfeiture practices that have "led to egregious and well-chronicled abuses"? Leonard, 580 U. S., at 1180 (statement of THOMAS, J.). Perhaps it has something to do with the relative lack of power of those on whom the system preys. Perhaps government agencies' increasing dependence on forfeiture as a source of revenue is an important piece of the puzzle…. But maybe, too, part of the reason lies closer to home. In this Nation, the right to a jury trial before the government may take life, liberty, or property has always been the rule. Yes, some exceptions exist. But perhaps it is past time for this Court to examine more fully whether and to what degree contemporary civil forfeiture practices align with that rule and those exceptions.

If Justice Sotomayor's dissent is any indication, the three liberal justices also seem open to a broader attack on at least the more egregious current asset forfeiture practices, prevalent in many states.  Defense lawyers and public interest organizations should take note—and take up Gorsuch's thinly veiled invitation. Victory may yet be snatched from the jaws of today's defeat.

The post Supreme Court Issues Flawed Ruling in Asset Forfeiture Case appeared first on Reason.com.

The most significant factor inhibiting the construction of new housing in the United States—resulting in severe housing shortages in many areas—is exclusionary zoning. But a new study suggests immigration restrictions contribute to the problem, by reducing the supply of workers. Here's the abstract to the paper by Eeconomists Troup Howard, Mengqi Wang, and Dayin Zhang:

US housing markets have faced a secular shortage of housing supply in the past decade, contributing to a steady decline in housing affordability. Most supply-side explanations in the literature have tended to focus on the distortionary effect of local housing regulations. This paper provides novel evidence on a less explored channel affecting housing supply: shortages of construction labor. We exploit the staggered rollout of a national increase in immigration enforcement to identify negative shocks to construction sector employment that are likely unrelated to local housing market conditions. Treated counties experience large and persistent reductions in construction workforce, residential homebuilding, and increases in home prices. Further, evidence suggests that undocumented labor is a complement to domestic labor: deporting undocumented construction workers reduces labor supplied by domestic construction workers on both extensive and intensive margins.

The basic idea here is fairly intuitive Economics 101: immigrants—including undocumented immigrants—are an important part of the construction work force. Reducing the number of available workers increases the price of construction, and thereby reduces output.

More counterintuitive is the finding that reducing the number of undocumented construction workers also reduces employment for native workers. But, as the authors point out, this can occur when native-born and immigrant workers in the industry are complements, rather than substitutes. Previous studies document such effects in other industries, and it can occur in this one, too. The authors' findings are consistent with recent work by noted immigration economist Michael Clemens showing that mass deportation—on net—reduces job opportunities for native workers more than it expands them.

Obviously, as the authors recognize, immigration can also increase demand for housing, thereby increasing prices. Similarly, deporting immigrants (or any other group) can reduce demand, thereby lowering prices. But the authors show this effect is outweighed by the ways in which deportation reduces supply, thereby leading to a net increase in housing prices when more immigrants get deported. This makes intuitive sense: allowing in a group that is disproportionately represented in the housing construction industry can result in sufficient new construction to both meet the extra demand created by that group, and also build additional new housing for others.

None of this proves that immigrant workers never displace native-born ones (or vice versa). Similarly, immigrants can sometimes outbid natives for housing (and, again, vice versa). But, on net, the two groups benefit each other economically far more than the reverse. That appears to be true in the housing sector, as in the economy more generally.

If this seems implausible, consider the impact on white males of allowing more women and minorities to compete on a more equal basis in the labor force in the twentieth century.  I summarize this comparison in my last post on the impact of deportation:

One helpful way to think about the issue is to ask whether the twentieth-century expansion of job market opportunities for women and blacks helped white male workers, on net, or harmed them. Some white men likely were net losers. If you were a marginal white Major League Baseball player displaced by Jackie Robinson or other black baseball stars after MLB was integrated, it's possible that you would never find another job you liked as much as that one. But the vast majority of white men were almost certainly net beneficiaries by virtue of the fact that opening up opportunities for women and blacks greatly increased the overall wealth and productivity of society.

If, today, we barred women from the labor force, or restricted them to the kinds of jobs open to them a century ago, some male workers would benefit….

But, overall, men would be much poorer, by virtue of living in a far less productive and innovative society. And many men would lose jobs or suffer decreases in wages because their own productivity depends in part on goods and services produced by women….

Similar consequences would occur if we were to reinstitute racial segregation, thereby severely restricting the job opportunities of black workers. While some whites would come out ahead, most would be net losers, as our economy becomes much less productive.

The key point to remember is that the economy—including the labor market—is not a zero-sum game. Men and women, blacks and whites—and immigrants and natives—can all prosper together, if only the government would let them.

The post How Immigration Restrictions Reduce Housing Construction and Exacerbate Shortages appeared first on Reason.com.

This year is the 70th anniversary of Brown v. Board of Education, arguably the Supreme Court's most iconic decision. The American Journal of Law and Equality is publishing a symposium on the topic, and I am one of the participants. A draft of my contribution, entitled "Brown, Democracy, and Foot Voting," is now available on SSRN. Here is the abstract:

Traditional assessments of Brown's relationship to democracy and popular control of government should be augmented by considering the ways it enhanced citizens' ability to "vote with their feet" as well as at the ballot box. Brown played a valuable role in reinforcing foot voting, and this has important implications for our understanding of the decision and its legacy.

Part I of the article summarizes the relationship between foot voting and ballot box voting, and how the former has important advantages over the latter as a mechanism of political choice. Relative to ballot box voting, foot voting offers individuals and families greater opportunities to make decisive, well-informed choices. It also has special advantages for minority groups, including Blacks.

Part II considers traditional attempts to reconcile Brown and democracy, through arguments that the decision was actually "representation-reinforcing." While each has its merits, they also have significant limitations. Among other flaws, they often do not apply well to the Brown case itself, which famously originated in a challenge to segregation in Topeka, Kansas, a state in which – unlike most of the South – Blacks had long had the right to vote.

Part III explains how expanding our understanding of Brown to include foot voting opportunities plugs the major holes in traditional efforts to reconcile the decision and democratic choice. Among other advantages, the foot-voting rationale for Brown applies regardless of whether racial minorities have voting rights, regardless of whether segregation laws are motivated by benign or malevolent motives, and regardless of whether the targeted ethnic or racial groups can form political coalitions with others, or not.

In Part IV, I discuss the implications of the foot-voting justification of Brown for judicial review of other policies that inhibit foot voting, particularly in cases where those policies have a history of illicit racial motivations. The most significant of these is exclusionary zoning.

As noted in the article, producing a thesis on Brown that is both new and useful is a tall order. Few if any other judicial decisions have been analyzed so much. But, as the saying goes, "fools rush in where the wise fear to tread." And so I accepted the journal's invitation.

I welcome comments, suggestions, and criticisms.

The post New Article on "Brown, Democracy, and Foot Voting" appeared first on Reason.com.

NOTE: This post largely reprints last year's Victims of Communism Day post, with some modifications.

Today is May Day. Since 2007, I have advocated using this date as an international Victims of Communism Day. I outlined the rationale for this proposal (which was not my original idea) in my very first post on the subject:

May Day began as a holiday for socialists and labor union activists, not just communists. But over time, the date was taken over by the Soviet Union and other communist regimes and used as a propaganda tool to prop up their [authority]. I suggest that we instead use it as a day to commemorate those regimes' millions of victims. The authoritative Black Book of Communism estimates the total at 80 to 100 million dead, greater than that caused by all other twentieth century tyrannies combined. We appropriately have a Holocaust Memorial Day. It is equally appropriate to commemorate the victims of the twentieth century's other great totalitarian tyranny. And May Day is the most fitting day to do so….

Our comparative neglect of communist crimes has serious costs. Victims of Communism Day can serve the dual purpose of appropriately commemorating the millions of victims, and diminishing the likelihood that such atrocities will recur. Just as Holocaust Memorial Day and other similar events promote awareness of the dangers of racism, anti-Semitism, and radical nationalism, so Victims of Communism Day can increase awareness of the dangers of left-wing forms of totalitarianism, and government domination of the economy and civil society.

While communism is most closely associated with Russia, where the first communist regime was established, it had comparably horrendous effects in other nations around the world. The highest death toll for a communist regime was not in Russia, but in China. Mao Zedong's Great Leap Forward was likely the biggest episode of mass murder in the entire history of the world.

November 7, 2017 was the 100th anniversary of the Bolshevik seizure of power in Russia, which led to the establishment of the first-ever communist regime. On that day, I put up a post outlining some of the lessons to be learned from a century of experience with communism.  The post explains why the lion's share of the horrors perpetrated by communist regimes were inherent flaws  of the system. For the most part, they cannot be ascribed to circumstantial factors, such as flawed individual leaders, peculiarities of Russian and Chinese culture, or the absence of democracy. Some of these other factors, especially the last, probably did make the situation worse than it might have been otherwise. But, for reasons I explained in the same post, some form of dictatorship or oligarchy is  virtually inevitable in a socialist economic system where the government controls all or nearly all of the economy.

While the influence of communist ideology has declined since its mid-twentieth century peak, it is far from dead. Largely unreformed communist regimes remain in power in Cuba and North Korea. In Venezuela, the Marxist government's policies have resulted in political repression, the starvation of children, and a massive refugee crisis—the biggest in the history of the Western hemisphere.

In Russia, the authoritarian regime of former KGB Colonel Vladimir Putin has embarked on a wholesale whitewashing of communism's historical record. Putin's brutal and indefensible invasion of Ukraine owes more to Russian nationalist ideology than communism. But it is nonetheless fed in part by his desire to recapture the supposed power and glory of the Soviet Union, and his long-held belief that the collapse of the USSR was "the greatest geopolitical catastrophe of the century." It is also telling that most communists in Russia and elsewhere have joined with many far-right nationalists in  backing Putin's line on the war.

In China, the Communist Party remains in power (albeit after having abandoned many of its previous socialist economic policies), and has recently become less tolerant of criticism of the mass murders of the Mao era (part of a more general turn towards greater repression).

China's horrific repression of the Uighur minority is reminiscent of similar policies under Mao and Stalin, though it has not—so far—reached the level of actual mass murder. But imprisoning over 1 million people in horrific concentration camps is more than bad enough.

Far-left support for Hamas since the horrific October 7, 2023 terrorist attack is yet another reminder of the inherently evil nature of communist ideology. Backing terrorism is part of a long history of support for repression and mass murder. Not all extreme socialists of the type who support Hamas are communists. But the latter are a subset of the former.

In a 2012 post, I explained why May 1 is a better date for Victims of Communism Day than the available alternatives, such as November 7 (the anniversary of the Bolshevik seizure of power in Russia) and August 23 (the anniversary of the Nazi-Soviet Pact). I also addressed various possible objections to using May Day, including claims that the date should be reserved for the celebration of labor unions.

But, as explained in my 2013 Victims of Communism Day post, I would be happy to support a different date if it turns out to be easier to build a consensus around it. If another date is chosen, I would prefer November 7; not out of any desire to diminish the significance of communist atrocities in other nations, but because it marks the establishment of the very first communist regime. November 7 has in fact been declared Victims of Communism Memorial Day by three state legislatures.

If this approach continues to spread, I would be happy to switch to November 7, even though May 1 would be still more appropriate. For that reason, I have adopted the practice of also commemorating the victims of communism on November 7.

I  would also be happy to back almost any other date that could command broad support. Unless and until that happens, however, May 1 will continue to be Victims of Communism Day at the Volokh Conspiracy.

The post Victims of Communism Day — 2024 appeared first on Reason.com.

In the course of an interview mostly devoted to other issues, a Japanese reporter recently asked me whether there is a difference between justice and the rule of law. Some of his (understandable) confusion was purely linguistic. Both "justice" and "rule of law"are fuzzy terms that different people use in different ways. It's easy to see how non-native English speakers could get confused.

Nonetheless, there are differences between the two concepts that go beyond semantics. Sometimes, of course, "rule of law" might be used in ways that preemptively rule out the possibility that legislation that meets rule-of-law requirements could ever be unjust. In the famous Hart-Fuller debate of the 1950s, Lon Fuller argued that gravely unjust rules and regulations (like those of Nazi Germany) could never be real laws. If so, enforcing such mandates can never be squared with the rule of law.

More commonly, however, "rule of law" is used to denote crucial procedural elements of a legal system, particularly that that ordinary people should be able to readily determine what laws they are required to obey, and that whether or not you get charged by the authorities depends mostly on objective legal rules rather than the exercise of official discretion (thus, the contrast between the rule of law and the "rule of men"). We might add that the rule of law bars—or at least presumptively forbids—discrimination on the basis of certain morally irrelevant characteristics, such as race, ethnicity, and gender.

By contrast, "justice" is a broader notion that focuses on the substantive rightness of the legal rule in question. Laws protecting freedom are (at least usually) just. Laws promoting slavery are not. And so on.

Understood in this way, it is easy to see how legislation that meets the requirements of the rule of law can nonetheless be profoundly unjust. Consider a law mandating the death penalty for jaywalking. It's certainly clear and unequivocal. Assume, further, that there is no enforcement discretion; no discrimination on the basis of race, gender, or any other morally arbitrary trait. Nor is there any favoritism. It is enforced against the rich and powerful no less than the poor and weak. If the governor of the state jaywalks, he or she will be executed just as readily as a homeless person who commits the same offense.

This rule meets the requirements of the rule of law. But it is still blatantly unjust. The death penalty is a hugely disproportionate punishment for the offense of jaywalking, no matter how evenly it is applied.

The same can be true of laws where "crime" itself is something that should not be illegal, even aside from the severity of the punishment. Imagine a law imposing forced labor on a large swathe of the population, such as one requiring all able-bodied adult citizens to do a month of forced labor each year. In Butler v. Perry (1916), the Supreme Court actually upheld a Florida law that required all able-bodied male citizens between the ages of 21 and 45 to either do road repair work for six days each year, provide a substitute, or pay a $3 tax (a much larger amount in inflation-adjusted terms in 1916 than it would be today).

In 1916 Florida, this law was likely enforced much more aggressively against blacks and poor people than against affluent whites. Such unequal enforcement arguably violated rule-of-law principles. Perhaps the rule of law was also undermined by the fact that the law only mandated forced labor for men, exempting women. But we could easily imagine a version of the law that is enforced equally, and also covers women. That version would satisfy the requirements of the rule of law. And, unlike the death penalty for jaywalking law, the punishment seems at least reasonably proportional to the offense.

The forced labor law would nonetheless be terribly unjust, because forced labor (including forced labor for the state) is itself unjust—no matter how equally enforced. Indeed, fully equal enforcement might in some ways make things worse, because it would increase the number of people who are victimized.

If laws that meet the requirements of the rule of law can still be unjust, we might also consider whether justice might sometimes require dispensing with rule-of-law constraints. At the very least, it seems like such a possibility cannot be categorically ruled out.

Elsewhere, I have argued that the rule of law is undermined by our having too many laws.

Because of the vast scope of current law, in modern America the authorities can pin a crime on the overwhelming majority of people, if they really want to. Whether you get hauled into court or not depends more on the discretionary decisions of law enforcement officials than on any legal rule. And it is difficult or impossible for ordinary people to keep track of all the laws they are subject to and to live a normal life without running afoul of at least some of them….

Scholars estimate that the vast majority of adult Americans have violated criminal law at some point in their lives. Indeed, a recent survey finds that some 52 percent admit to violating the federal law banning possession of marijuana, to say nothing of the myriad other federal criminal laws. If you also include civil laws…. even more Americans are lawbreakers….

For most people, it is difficult to avoid violating at least some laws, or even to keep track of all the laws that apply to them….

Ignorance of the law may not be a legally valid excuse. But such ignorance is virtually inevitable when the law regulates almost every aspect of our lives and is so extensive and complicated that few can hope to keep track of it….

Most Americans, of course, never face punishment for their lawbreaking. But that is true only because the authorities lack the resources to pursue most violators and routinely exercise discretion in determining which ones are worth the effort….

In this way, the rule of law has largely been supplanted by the rule of chance and the rule of executive discretion.

The post The Difference Between Justice and the Rule of Law appeared first on Reason.com.

In addition to finally passing long-delayed and much-needed military assistance to Ukraine, the House of Representatives today also enacted the REPO Act.  That law gives the president the authority to confiscate $6 billion in Russian government assets currently frozen in the United States, and transfer them to Ukraine, in order to assist that country in resisting Russia's brutal war of aggression.

The Senate will almost certainly pass the REPO Act, as well, and President Biden seems certain to sign it and act on it. While $6 billion isn't all that much relative to the costs of the war, hopefully this US action will incentivize our European allies to confiscate the nearly $300 billion in Russian state assets currently frozen under their jurisdiction.

I have long advocated this idea, which is overdue. In a November post, I outlined the case for it, and addressed a number of objections, including claims that confiscation would violate the Takings Clause of the Fifth Amendment, sovereign immunity arguments, arguments that confiscation is unfair to the people of Russia, and fears that it would set a bad precedent deterring foreign investment in the US.

Here's an excerpt:

There is a staggering $300 billion in frozen Russian state assets located in Western nations backing Ukraine…. To put this figure in perspective, it's worth noting that the total amount of US aid to Ukraine from February 2022 through July 31, 2023 was about $77 billion. The European Union, individual European states, and Canada, gave approximately $165 billion during the same period…. The $300 billion in frozen assets is equal to some two years of total Western assistance to Ukraine at the current pace of spending!…

[I]n the US the private property of foreigners is protected against confiscation by the Takings Clause of the Fifth Amendment, which requires the government to pay "just compensation" if it takes "private property." Most European nations have similar constitutional protections for private property rights, as does the European Convention on Human Rights.

But the Fifth Amendment and its European analogues do not offer the same kind of blanket protection to the property of foreign governments. This distinction undermines claims by some critics that uncompensated seizure of Russian state assets would violate the Takings Clause and similar constitutional guarantees in Europe. It also mitigates concerns that confiscating Russian government assets would create a dangerous slippery slope. Private property rights of foreigners would remain protected by constitutional guarantees….

Oona Hathaway argues that confiscating Russian state assets would violate sovereign immunity. I think the Tribe report offers compelling responses to this argument (pp 60-64).

In addition, I am not convinced that sovereign immunity is actually a just principle that we have a duty to obey. It is in fact a perversion of justice, enabling rulers to escape accountability for violating human rights and other injustices they perpetrate. It was a mistake to read it into the US Constitution. It is equally a mistake to allow it to be a principle of international law. Some laws are so deeply unjust that we have no duty to obey them. The law of sovereign immunity is one such case.

At the very least, sovereign immunity should not be permitted to shield authoritarian states like Putin's regime from having their assets confiscated in order to combat their wars of aggression, mass murder of civilians, and other large-scale human rights violations. Such rulers no more deserve sovereign immunity than Mafia bosses….

The post House Passes REPO Act Giving President Authority to Confiscate Russian Government Assets in the US and Transfer them to Ukraine appeared first on Reason.com.

At the Vox website, Dylan Matthews offers a compelling defense of the proposed End Kidney Deaths Act. He makes good points, and I agree the act would be a major improvement over the status quo. But full legalization of organ markets would be better still. Here's an excerpt from Matthews' article:

What if I told you there was a way that the US could prevent 60,000 deaths, save American taxpayers $25 billion, and pay a deserving group of people $50,000 each? Would you be interested?…

I am not a spokesman. I am simply a fan and supporter of the End Kidney Deaths Act, a bill put together by a group of kidney policy experts and living donors that would represent the single biggest step forward for US policy on kidneys since … well, ever….

The plan is simple: Every nondirected donor (that is, any kidney donor who gives to a stranger rather than a family member) would be eligible under the law for a tax credit of $10,000 per year for the first five years after they donate. That $50,000 in total benefits is fully refundable, meaning even people who don't owe taxes get the full benefit.

Elaine Perlman, a kidney donor who leads the Coalition to Modify NOTA, which is advocating for the act, based the plan on a 2019 paper that estimated the current disincentives to giving a kidney (from travel expenses to lost income while recovering from surgery to pain and discomfort) amounted to about $38,000. That's almost $50,000 in current dollars, after the past few years' inflation.

The paper also found that removing disincentives by paying this amount to donors would increase the number of living donors by 11,500 a year. Because the law would presumably take a while to encourage more donations, Perlman downgrades that to about 60,000 over the first 10 years, with more donations toward the end as people become aware of the new incentives. But 60,000 is still nothing to sneeze at….

The End Kidney Deaths Act is trying to solve a fundamental problem: Not nearly enough people are donating their kidneys….

In 2021, some 135,972 Americans were diagnosed with end-stage renal disease, meaning they would need either dialysis or a transplant to survive. That year saw only 25,549 transplants. The remaining 110,000 people needed to rely on dialysis.

Dialysis is a miraculous technology, but compared to transplants, it's awful. Over 60 percent of patients who started traditional dialysis in 2017 were dead within five years. Of patients diagnosed with kidney failure in 2017 who subsequently got a transplant from a living donor, only 13 percent were dead five years later.

Life on dialysis is also dreadful to experience. It usually requires thrice-weekly four-hour sessions sitting by a machine, having your blood processed. You can't travel for any real length of time, since you have to be close to the machine. More critically, even part-time work is difficult because dialysis is physically extremely draining.

An estimated 40,000 Americans die every year for lack of kidneys available for transplant. If enacted, the End Kidney Deaths Act would save many of these people. In addition, as Matthews points out, the $50,000 per kidney tax credits would easily pay for themselves, because kidney dialysis is vastly more expensive, and Medicare ends up paying for most of that expense. If more people suffering from kidney failure could get a new kidney quickly, the government would save a lot money on dialysis expenses, and those people would be able to be more productive (as well as avoiding great pain and discomfort).

Matthews also has a good response to claims that paying for kidneys would amount to problematic "commodification":

When you think of donor compensation as payment for work done, the injustice of the current system gets a lot clearer.

When I donated my kidney, many dozens of people got paid. My transplant surgeon got paid; my recipient's surgeon got paid. My anesthesiologist got paid; his anesthesiologist got paid. My nephrologist and nurses and support staff all got paid; so did his. My recipient didn't get paid, but hey — he got a kidney. The only person who was expected to perform their labor with no reward or compensation whatsoever was me, the donor.

This would outrage me less if the system weren't also leading to tens of thousands of people dying unnecessarily every year. But a system that refuses to pay people for their work, and in the process leads to needless mass death, is truly indefensible.

I agree, and have made similar points myself. And Matthews deserves great commendation for donating a kidney, thereby quite possibly saving a life! At the very least, he probably saved the recipient from having to endure additional years of painful kidney dialysis.

The major shortcoming of the End Kidney Deaths Act is the implicit price control it creates. By setting the payment at $50,000, it prevents higher payments where that would be necessary to ensure adequate supply. While the Act would save thousands of lives, the estimates Matthews cites (some 6000 to 11,500 additional kidney donations per year) would still leave us many thousands of kidneys short, thereby still dooming many people to needless death, or at least additional years on kidney dialysis.  This problem might be especially acute for patients whose genetics make it unusually difficult to find a matching donor. Conversely, if some potential donors are willing to sell for less than $50,000, there is no good reason to ban such transactions.

Full legalization of organ sales, with no price controls, would fix these problems. It's basic economics 101 that markets function best if prices are allowed to fluctuate in response to supply and demand. In a free market, insurance companies, medical care providers, and others have every incentive to pay what it takes, as the alternative of kidney dialysis is far more expensive. If necessary, the government could subsidize consumption by the poor, as it already does for kidney dialysis and many other health care expenses.

Matthews includes a passage lauding the End Kidney Deaths Act in part precisely precisely because it falls short of authorizing a full-blown organ market:

The most common objection to compensating kidney donors is that it amounts to letting people "sell" their kidneys, a phrasing that even some proponents of compensation adopt. For opponents, this feels dystopian and disturbing, violating their sense that the human body is sacred and should not be sold for parts.

But "selling kidneys" in this case is just a metaphor, and a bad one at that. The End Kidney Deaths Act would not in any sense legalize the selling of organs. Rich people would not be able to outbid poor people to get organs first. There would be no kidney marketplace or kidney auctions of any kind.

What the proposal would do is pay kidney donors for their labor. It's a payment for a service — that of donation — not a purchase of an asset. It's a service that puts some strain on our bodies, but that's hardly unusual. We pay a premium to people in jobs like logging and roofing precisely because they risk bodily harm; this is no different.

This formulation is clever. And I myself have noted parallels between organ markets and paying people for doing jobs involving physical risk, such as the work performed by lumberjacks  and professional football players (both of whom accept far greater risks than those faced by kidney donors). Nonetheless, if we compensate kidney donors, it is difficult to deny that such compensation is at least in part for giving up a kidney.

And there is nothing wrong with that! If you believe in the principle of "my body, my choice," the right to sell organs is one of the liberties that ideal entails. And there is no good reason to distinguish organ-selling from other potentially risky activities people are allowed to do for pay.  If anything, organ markets are more defensible than most of the others, because they could save many thousands of lives. By contrast, NFL players take greater risks to provide the rest of us with entertainment.

As for the fear that rich people will hoard or monopolize kidneys, that is highly improbable given that few people—rich or otherwise—are likely to have a need for more than one. In a nation of over 300 million people, full legalization would induce sufficient sales to fully cover the demand (roughly another 40,000 kidneys per year or so). If necessary, as noted above, government could subsidize the purchase of kidneys for poor people suffering kidney failure, as it does for other kinds of medical care for the poor.

A free market might be politically difficult to enact. But survey data suggests it may not be nearly as hard as is usually supposed.

In sum, the End Kidney Deaths Act would be a major improvement over the status quo. Matthews is absolutely right about that. But a more fully free market would be much better still.

In previous writings on organ sales, I have discussed the scope of the problem, and addressed standard arguments against organ market legalization, such as concerns that it would be too dangerous for organ donors,  claims that it amounts to to immoral "commodification" of the body, and fears that it would lead to exploitation of the poor (see also here).

The post Two Cheers for the Proposed End Kidney Deaths Act appeared first on Reason.com.

The Supreme Court is currently considering two cases in which social media firms challenge the constitutionality of Texas and Florida laws requiring them to host content the platforms would prefer to exclude. The issue before the Court is whether these laws violate the Free Speech Clause of the First Amendment. But, in a recent Reason article, Ethan Blevins of the Pacific Legal Foundation—one of the nation's leading public interest law firms litigating takings cases—argues they also violate the Takings Clause of the Fifth Amendment:

While pundits and lawyers cross swords over free speech on social media, a quieter yet critically important principle is being ignored: property rights. In addition to violating the First Amendment, the rush to force social media platforms to host content violates the Fifth Amendment as well—in particular, the Takings Clause.

The Takings Clause says that government shall not take private property "for public use, without just compensation." While many are familiar with the clause's importance when the government wants to seize land through eminent domain, courts have also applied this right as a limit on the ability to overregulate property. For example, if a beach town requires the owners of oceanfront properties to let the public walk across their yards to get to the beach, this would require compensation, because the regulation effectively takes the property owner's right to exclude, a cornerstone of ownership.

Likewise, the Takings Clause shields social media platforms from regulations requiring they host content or users they want to exclude. These platforms have as much right to eject unwelcome digital interlopers as homeowners do to stop the government from using their yard as a public right of way—unless they are given just compensation. If states intend to force social media apps to host users and content against their wishes, they will have to pay for it….

Both state and federal laws already treat online platforms as property. All states criminalize unauthorized access to computer systems, often expressly framing these crimes as trespass….

Laws that mandate online platforms to accept certain content or users effectively invade private property. And the courts have established that when the government grants third parties access to private property without the owner's consent, that requires compensation. The federal government had to pay a private marina owner in Hawaii before it could be compelled to allow public boating access. Similarly, the Supreme Court ruled just a few years ago that California had to compensate employers after it forced them to let union representatives access their property.

I very much agree, and previously made a similar argument here:

The Takings Clause bars government from taking "private property" without paying "just compensation." In its 2021 ruling in Cedar Point Nursery v. Hassid, the Supreme Court ruled (correctly, in my view) that even a temporary government-mandated "physical occupation" or invasion of private property counts as a per se taking….

The Florida and Texas social media laws are also blatant attacks on the right to exclude. No one doubts that the Twitter site and its various features are Twitter's private property. And the whole point of the Florida and Texas laws is to force Twitter and other social media firms to grant access to users and content the firms would prefer to exclude, particularly various right-wing users. Just as the plaintiffs in Cedar Point wanted to bar union organizers from their land, so Twitter wishes to bar some content it finds abhorrent (or that might offend or annoy other users)….

To be sure, there are obvious differences between virtual property, such as a website, and more conventional physical property, like that involved in the Cedar Point case. But the Taking Clause nonetheless applies to both. If Texas decided to seize the Twitter site, bar current users, and instead fill it with content praising the state government's policies, that would pretty obviously be a taking, much like if California decided to seize the Cedar Point tree nursery's land.  In the same way, requiring Twitter to host unwanted content qualifies as an occupation of its property, no less than requiring a landowner to give access to unwanted entrants…

One could argue that forcing a website owner to host unwanted users isn't really a "physical occupation," because the property is virtual in nature. But websites, including the big social media firms, use physical server space. Other things equal, a site with more user-generated content requires more such space than one with less. Even aside from the connection to physical infrastructure, it seems to me that occupation of virtual "real estate" is analogous to occupation of land. Both are valuable forms of private property from which the owner generally has a right to exclude.

The post Laws Requiring Social Media Firms to Host Content they Prefer to Exclude Violate the Takings Clause appeared first on Reason.com.

UPDATE: This event has been postponed till September, for scheduling reasons. I will post the new date and time when it is set.

Note: I am reposting this in order to include the registration link.

On April 23, the Schar School of Policy and Government at George Mason University will hold an event on "Solving the Nation's Housing Shortage." I will be speaking along with economist Bryan Caplan (George Mason University), author of Build, Baby, Build: The Science and Ethics of Housing, and Jerry Howard, former Director of the National Association of Home Builders. Bryan will discuss his book,  which addresses the causes of the housing crisis, and potential solutions. I will speak about how exclusionary zoning—the most significant cause of our housing shortage—violates the Takings Clause of the Fifth Amendment, and how judicial review can help address the problem. These issues are covered in greater detail in my forthcoming Texas Law Review article on exclusionary zoning (coauthored with Josh Braver).

The event is free and open to the public. Here is the time and address:

12-1 PM, Schar School of Policy and Government, George Mason University, Van Metre Hall, Rm. 111, 3351 Fairfax Dr., Arlington, VA

You can register at this link.

The post Upcoming Event on "Solving the Nation's Housing Shortage" [update] appeared first on Reason.com.

Today, federal District Court Judge Drew Tipton issued a ruling in Texas v. Department of Homeland Security, rejecting a suit filed by a coalition of red states led by Texas, challenging the legality of the Biden Administration's CNVH parole program (also sometimes called "CHNV"), which allows migrants from four Latin American countries to enter the United States and live and work here for up to two years, if they can find a US-resident sponsor willing to support them.

Judge Tipton (a conservative Trump appointee) ruled that the states lacked standing to bring a lawsuit challenging the program. The plaintiff states argued Texas has standing because parolee migrants entering the state would lead the state government to incur various additional costs, thereby proving the necessary "injury in fact" required by Supreme Court standing precedent. But Judge Tipton concluded the evidence shows that the CNVH program actually reduces the number of migrants from these countries who enter the state. Thus, it doesn't increase the costs borne by the state, and therefore Texas hasn't suffered an "injury" sufficient to get standing:

To prove an injury in fact, Texas must show "an invasion of a legally protected
interest which is (a) concrete and particularized, and (b) actual or imminent, not
conjectural or hypothetical." Lujan, 504 U.S. at 560, 112 S.Ct. at 2136…. In the
context of state challenges to federal immigration policies, states have historically proven injury-in-fact by demonstrating the additional costs paid across state-funded industries because of additional aliens….

Texas's theory for standing "was based on allegations that the CHNV processes were likely to increase the number of CHNV nationals in the State and thus increase the State's costs…."  And as observed by Intervenors [a group of sponsors of CHNV participants], the trial record disproves this theory…. Intervenors argue that the undisputed data presented at trial confirms that the CHNV Parole Program has reduced the total number of individuals from the four countries, and consequently, Texas has actually spent less money as a result of the Program….

Judge Tipton canvasses the relevant Supreme Court and Fifth Circuit court of appeals precedent and finds that the right way to measure costs is to consider the net impact of the program in question, not just the costs that may be created by program beneficiaries taken in isolation. Since the evidence shows the program reduces the total number of CNVH migrants in Texas, it actually saves Texas money, and thus the state lacks standing. Earlier in the litigation, the state plaintiffs stipulated that only Texas's costs were to be considered, not those of the other states.

How does the CNVH parole program actually reduce the number of migrants from these four countries entering Texas? Because it allows program participants to come to the US legally without ever having to cross the southern border, many migrants who might otherwise have tried to enter Texas or other border states illegally instead seek legal entry under CNVH. Many go directly to their final destinations in other states by ship, plane, or other means of transportation. Even those who do enter through border states might not stay there very long.

I covered this point in much more detail in an amicus brief I filed defending the legality of the program, on behalf of the Cato Institute, MedGlobal (a medical non-profit serving migrants and refugees, among others), and myself. Our brief does not address standing. But, for reasons  explained in the brief, the alleviation of pressure on the border also matters for the merits of the case (which Judge Tipton didn't reach). See also my September 2023 article about the case in the Hill.

I am skeptical of narrow definitions of standing and would have preferred the court to uphold the CNVH program on the merits. However, Judge Tipton does make a good argument that this is the right result under current standing precedent. It is also broadly consistent with the Supreme Court's June 2023 8-1 decision in United States v. Texas, holding that many of the same red states that brought this case lack standing to challenge the Biden administration's immigration enforcement guidelines, even though the states argued that the administration's decision not to deport certain migrants increases states' costs (though there are also ways to potentially distinguish the two cases).

As David Bier and I explain in a November USA Today article, CNVH could do even more to alleviate border problems—and help migrants fleeing horrific oppression and violence—if the Biden administration were to expand it to cover more countries, and lift the arbitrary 30,000 per month cap on the number of participants. The cap has created a massive backlog of applicants.

And, while it may not be relevant to standing analysis (because of the indirect nature of such effects), the economic benefits of increased migration generally outweigh any additional costs to state and federal governments, especially given the immigrants also pay taxes.

This decision is likely to be appealed to the Fifth Circuit. Alternatively, the states might try to find some other way to get standing. The latter, however, may prove difficult if Judge Tipton's ruling stands. For the moment, however, the CNVH program can continue.

This case likely isn't over. But it's not a good sign for the states that they lost in district court despite the fact they chose to file in this district specifically because they were likely get Judge Tipton to hear the case. He's a conservative whom many observers expected to be sympathetic to the states' position.

NOTE: As indicated above, I filed  an amicus brief in this case defending the legality of the program, on behalf of the Cato Institute, MedGlobal, and myself. However, the brief does not address the issue of standing. What I write on that question represents solely my own views, and not those of Cato, MedGlobal, or anyone else.

I am, as discussed in the brief, a sponsor in the Uniting for Ukraine program, which is based on the same statutory authority as CNVH, but was not challenged by plaintiff states.

The post Federal District Court Rules Red States Lack Standing to Challenge Legality of Immigration Parole Program for Migrants from Four Latin American Countries appeared first on Reason.com.

Earlier today, Lawfare published my article criticizing the Supreme Court's recent article in the Trump Section 3 disqualification case. Here is an excerpt from the introduction:

The Supreme Court's unanimous recent decision in Trump v. Anderson overturned the Colorado Supreme Court ruling disqualifying Donald Trump from the presidency under Section 3 of the 14th Amendment. It does so on the grounds that Section 3 is not "self-executing." In a per curiam opinion jointly authored by five justices, including Chief Justice John Roberts, the Court ruled that only Congress, acting through legislation, has the power to determine who is disqualified and under what procedures. This outcome was predictable based on the oral argument… But the Court nonetheless got the issue badly wrong….

Section 3 states that "No person" can hold any state or federal office if they had previously been "a member of Congress, or … an officer of the United States" or a state official and then "engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."

By focusing exclusively on the self-execution issue, the Court left for another day all the other arguments at stake in the Trump case, such as whether the Jan. 6, 2021, attack on the Capitol qualifies as an "insurrection," whether Trump "engaged" in it, whether his actions were protected by the First Amendment, whether Trump received adequate due process, and whether the president is an "officer of the United States" covered by Section 3. The justices may hope they can avoid ever having to decide these questions.

In my view, Trump deserved to lose on all these points, and the Colorado Supreme Court correctly rejected his arguments on them. But I think he did have a plausible argument on the issue of whether his involvement in the Jan. 6 attack was extensive enough to qualify as "engaging" in insurrection. At the very least, he had a better argument there than on self-execution. The Court's resolution of the latter issue is based on badly flawed reasoning and relies heavily on dubious policy arguments invoking the overblown danger of a "patchwork" of conflicting state resolutions of Section 3 issues. The Court's venture into policy was also indefensibly one-sided, failing to consider the practical dangers of effectively neutering Section 3 with respect to candidates for federal office and holders of such positions.

The post New Lawfare Article on "What the Supreme Court Got Wrong in the Trump Section 3 Case" appeared first on Reason.com.

The Society for the Rule of Law (formerly known as Checks and Balances) has posted the video of today's webinar on "Impeachment of the Rule of Law," where I appeared along with fellow VC blogger Keith Whittington. Here is the video:

We covered a number of topics, including the history and purpose of impeachments, how the utility of this institution has been undermined by partisanship and polarization, the recent impeachment of DHS Secretary Alejandro Mayorkas, and ongoing efforts to impeach Biden.

Keith is one of the nation's leading experts on impeachment, and I look forward to reading his forthcoming book on the subject.

The post Society for the Rule of Law Webinar on Impeachment appeared first on Reason.com.

Earlier today, as Orin Kerr notes, federal district court Judge David Alan Ezra issued a decision holding—among other things—that illegal migration does not qualify as "invasion" under the Constitution. Article I, § 10, Clause 3 of the Constitution states that "No State shall, without the Consent of Congress … engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay." Texas claims that undocumented migration and cross-border illegal drug smuggling qualify as an invasion under this Clause, and therefore authorize Texas to "engage in war" in response, including taking measures that would otherwise be barred by federal statute.

In this case, Texas is defending the legality of SB 4, a news state law that criminalizes unauthorized migration and gives Texas state courts the authority to order removal of migrants convicted under the law. If Texas's invasion argument fails, SB 4 might be preempted by federal law.

Judge Ezra's ruling is far from the first court decision to conclude that illegal migration is not invasion. There have been several previous such cases, including three appellate court decisions, and Judge Ezra's own recent ruling in United States v. Abbott, a case where the federal government is suing  Texas for installing floating buoy barriers in the Rio Grande River in violation of the federal Rivers and Harbors Act of 1899 (that decision was upheld by the US Court of Appeals for the Fifth Circuit, but the case is now under review by the en banc Fifth Circuit.

But today's opinion is by far the most thorough judicial analysis of this important issue. Judge Ezra outlines extensive evidence indicating that the text and original meaning of the the Constitution indicates that only an armed attack qualifies as "invasion":

Ultimately, all tools of constitutional construction cut against Texas's position.  Contemporary definitions of "invasion" and "actually invaded" as well as common usage of the term in the late Eighteenth Century predominantly referred to an "invasion" as a hostile and organized military force, too powerful to be dealt with by ordinary judicial proceedings. This Court could not locate a single contemporaneous use of the term to refer to surges in unauthorized foreign immigration. The text and structure of the State War Clause imply that "invasion" was to be used sparingly for temporary, exigent, and dangerous circumstances. Put simply, the overwhelming textual and historical evidence does not support Texas's understanding of the State War Clause.

As James Madison put it in his Report of 1800, "Invasion is an operation of war." Judge Ezra extensively canvasses the ratification debates and other Founding-era evidence. He also highlights the radical implications of Texas's position, which woul effectively allow  states to usurp the federal government's war powers "whenever they disagreed with federal immigration policy." If it is correct, Texas and other states could "engage in war" against neighboring countries anytime there is substantial illegal migration, which i has been the case at almost all times, ever since the US government first imposed significant immigration restrictions applying to migrants crossing the southern border. Thus, Texas would be free to, for example, use its state National Guard to attack Mexico in order to forestall illegal migration and drug smuggling from there.

Judge Ezra's ruling is also the first to highlight the dire implications of the equation of immigration and invasion for the writ of habeas corpus:

Article 1, Section 9 mentions "invasion" to note that the "Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." Id. art. 1, § 9, cl. 2. The suspension of habeas corpus is a stunning exercise of power. The Writ of Habeas Corpus has been suspended only four times in this country's history: the Civil War,….. KKK insurrections during Reconstruction, a guerilla war in the Philippines, and in Hawaii during World War II…. These examples show that the Writ of Habeas Corpus has only ever been suspended in the face of imminent and overwhelming violent direct threats to the stability of the state or federal government….

Unauthorized immigration is not akin to armed and organized insurrection against the government. Even as Texas points to cartel violence, it cannot maintain in good faith that the cartels will imminently overthrow the state government. Nor can the mere presence of ongoing organized crime, which has long existed in the United States, suffice to justify the suspension of habeas corpus. Despite the serious threat to public safety that cartels may pose, it is difficult to accept that the threat is so severe as to justify the wholesale suspension of Due Process rights in Texas.

Indeed, British suspension of the writ of habeas corpus was a leading concern among American Revolutionaries and carefully limited by the Framers in the Constitution…. For that reason, the Framers drafted the Constitution such that the writ could be suspended only in times of great emergency….

It is not plausible that the Framers, so cognizant of past abuses of the writ and so careful to protect against future abuses, would have granted states the unquestioned authority to suspend the writ based on the presence of undocumented immigrants.

I have previously highlighted this issue myself: If immigration or drug smuggling by cartels qualify as "invasion," the writ of habeas corpus could be suspended at virtually any time, since such activity is virtually always ongoing (at least since the establishment of severe migration restrictions and the War on Drugs).

Judge Ezra also argues that, if illegal migration did qualify as "invasion" states' efforts to "engage in war" in response would still be subject to federal restrictions, under Congress's own war powers, once federal forces are able to reach the scene of the attack. I am less certain of the correctness of this claim than I am about his the arguments. If a state is indeed "actually invaded," it seems to me it would have at least some substantial authority to "engage in war" that the federal government cannot override, even if federal  troops are also helping to repel the invasion.

There is more to Judge Ezra's analysis of the invasion issue. Anyone interested in this important constitutional question should read the entire section of his careful opinion devoted to this question (pp. 65-98).  It's a true tour de force. For those who care, Judge Ezra is a Republican Reagan appointee.

Texas Gov. Greg Abbott has indicated that he plans to appeal the decision. And the invasion question may also soon be considered by the en banc Fifth Circuit. We probably haven't heard the last of this issue. But hopefully appellate courts will reach the same conclusion as Judge Ezra.

Today's ruling also includes analysis of other issues in the SB 4 case, especially arguments about whether the law is preempted by federal immigration statutes (Judge Ezra concludes it is).

I have previously written about why illegal migration doesn't qualify as "invasion" here, here, here, and here.

The post Federal Court Rejects Texas's Argument that Illegal Migration Qualifies as "Invasion" appeared first on Reason.com.

Earlier today, in the case of Anderson v. Trump, Illinois circuit court Judge Tracie Porter ruled that Donald Trump is disqualified from the presidency under Section 3 of the Fourteenth Amendment, and therefore must be removed from the Illinois Republican primary ballot. Section 3 states that "No person" can hold any state or federal office if they had previously been "a member of Congress, or… an officer of the United States" or a state official, and then "engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."

Judge Porter's ruling largely follows the reasoning of the Colorado Supreme Court decision on the same issue, which is currently being reviewed by the federal Supreme Court. She has stayed her ruling in anticipation of an appeal, and it will likely remain on hold until the federal Supreme Court issues its own decision.

I think the Colorado Supreme Court got all the major federal constitutional issues right, and therefore also agree with today's ruling. Unfortunately, the federal Supreme Court oral argument strongly suggests the justices are going to reverse the Colorado decision on the grounds that Section 3 is not "self-executing," and therefore cannot be enforced by state governments unless and until Congress enacts additional legislation. If that happens, the Illinois decision won't have any effect. The same goes for a December ruling against Trump by the Maine Secretary of State.

For those interested, I have filed an amicus brief in  the federal Supreme Court case, which explains why a prior criminal conviction on charges of insurrection (or any other criminal charges) is not necessary for for Trump to be disqualified.

I have also written about other issues related to the Section 3 litigation  writings, most extensively here and here. In a series of previous VC, I explained why the January 6, 2021 attack on the Capitol qualifies as an "insurrection" under Section 3 (see here, here, and here).

The post Illinois Court Rules Trump Disqualified from the Presidency Under Section 3 of the Fourteenth Amendment appeared first on Reason.com.

Since April 2022, the US has admitted some 200,000 or more Ukrainian migrants under the Uniting for Ukraine (U4U) program, which enables US citizens and legal residents to sponsor Ukrainians fleeing Russia's brutal invasion to live and work in the United States for up to two years (I am myself a sponsor for two Ukrainian families). Although the program has many virtues and has been highly successful, the two-year time limit has been a major downside, from the beginning. Many of the Ukrainians will need a permanent refuge.  And giving it to them will also enable them to contribute more to our economy and society.

Yesterday, the Biden Administration began a program under which U4U participants can apply for "re-parole."  Those whose applications are accepted would be allowed to live and work legally in the US for an additional two years.

This is a step in the right direction. The war in Ukraine shows little sign of ending anytime soon. And many of the refugees may be unwilling or unable to return even after the fighting stops (e.g.—because their former homes have been destroyed by the Russian military). Past refugee crises show that it is often impossible and undesirable to force everyone to return to their original homes, even after the fighting is over.

But the re-parole process does have some downsides. One is that the relevant forms and application process seem unduly complicated, and some aspects of the system are unclear. For example, I cannot figure out whether the two-year extension is tacked on to the end of the original two years, or whether it begins as soon as USCIS accepts an application (in the latter case participants may end up with less than four years total). The filing fees are also hard to determine, though they seem to be $575 per person, if I understand the USCIS website correctly. That goes well beyond any plausible administrative expenses and is a considerable burden for the many parolees who lost everything in the Russian invasion and may be employed at working-class jobs today. At the very least, the fees should be lowered.

In addition, the extension, like the original U4U program, is a matter of executive discretion. What Caesar giveth, he or his successor could taketh away—a very real danger, given the prospect of Donald Trump returning to the White House. It is not entirely clear whether the president could unilaterally strip U4U parolees of their status before their term ends. At the very least, the president could simply let the term expire and refuse to renew it.

Despite such limitations, the re-parole system is a useful step. Otherwise, many U4U participants will see their residency and work rights expire in 2024 or 2025. But, like the earlier grant of a right to apply for TPS status, this is not a substitute for giving Ukrainians permanent residency rights. Congress must pass an adjustment act to do that; I outlined the case for doing so here.  There is in fact a bipartisan Ukrainian Adjustment Act proposed by several members of Congress. But it doesn't seem likely to pass this year. Similar adjustment acts should be adopted to cover Afghans, Venezuelans, and others in similar straits, who fled war and oppression, entered the US through the use of presidential parole power, and now face arbitrary time limits on their residency and work rights.

If you are a U4U participant or a sponsor who needs help with the re-parole process, please let me know and I will see if I can get answers to your questions.

I have made inquiries with government officials and other experts to try to clear up some of the uncertainties noted above. If I learn anything useful,  I will update this post.

The post Biden Administration Lets Migrants Who Entered Under Uniting for Ukraine Apply to Stay in the US For Another Two Years appeared first on Reason.com.

In recent months, many politicians and media outlets have focused on the "migrant crisis" in various cities, supposedly caused by the arrival of large numbers of asylum seekers. Many of these migrants cannot support themselves, and end up taking up shelter space or living on the streets. In a recent Atlantic article (unfortunately, paywalled), Jerusalem Demsas explains why the supposed crisis is in reality a product of flawed government policies, rather than migration, as such:

When the mayor of New York, of all places, warned that a recent influx of asylum seekers would destroy his city, something didn't add up.

"I said it last year when we had 15,000, and I'm telling you now at 110,000. The city we knew, we're about to lose," Eric Adams urged in September. By the end of the year, more than 150,000 migrants had arrived. Still, the mayor's apocalyptic prediction didn't square with New York's past experience. How could a city with more than 8 million residents, more than 3 million of whom are foreign-born, find itself overwhelmed by a much smaller number of newcomers?

In another legendary haven for immigrants, similar dynamics were playing out. Chicago has more than 500,000 foreign-born residents, about 20 percent of its population, but it has been straining to handle the arrival of just 35,000 asylum seekers in the past year and a half. Some people have even ended up on the floors of police stations or in public parks. Mayor Brandon Johnson joined Adams and a handful of other big-city mayors in signing a letter seeking help with the "large numbers of additional asylum seekers being brought to our cities."

Sometimes the best way to understand why something is going wrong is to look at what's going right. The asylum seekers from the border aren't the only outsiders in town. Russia's 2022 invasion of Ukraine brought a separate influx of displaced people into U.S. cities that quietly assimilated most of them. "We have at least 30,000 Ukrainian refugees in the city of Chicago, and no one has even noticed," Johnson told me in a recent interview.

According to New York officials, of about 30,000 Ukrainians who resettled there, very few ended up in shelters. By contrast, the city has scrambled to open nearly 200 emergency shelters to house asylees from the Southwest border.

What ensured the quiet assimilation of displaced Ukrainians? Why has the arrival of asylum seekers from Latin America been so different? And why have some cities managed to weather the so-called crisis without any outcry or political backlash? In interviews with mayors, other municipal officials, nonprofit leaders, and immigration lawyers in several states, I pieced together an answer stemming from two major differences in federal policy. First, the Biden administration admitted the Ukrainians under terms that allowed them to work right away. Second, the feds had a plan for where to place these newcomers. It included coordination with local governments, individual sponsors, and civil-society groups. The Biden administration did not leave Ukrainian newcomers vulnerable to the whims of Texas Governor Greg Abbott, who since April 2022 has transported 37,800 migrants to New York City, 31,400 to Chicago, and thousands more to other blue cities—in a successful bid to push the immigration debate rightward and advance the idea that immigrants are a burden on native-born people.

Demsas is largely right here. Ukrainians admitted under the Uniting for Ukraine (U4U)  program have not caused any controversy in cities largely because they are allowed to immediately start working, and thereby can support themselves and contribute to our economy. By contrast, asylum seekers aren't eligible to apply for work permits for six months, and even then it often takes the federal immigration bureaucracy a long time to actually issue them.

What is true for Ukrainians is also true of Cubans, Nicaraguans, Venezuelans, and Haitians admitted under the "CNVH" program—an extension of the U4U model to a combine total 30,000 migrants per month fleeing oppression and violence in those four countries. Several hundred thousand people have entered the US under the CNVH program. But, like the Ukrainians, they have immediate work authorization, and therefore turn out to be a asset to cities, not a burden.

As Demsas explains, the federal government should abolish the six-month rule and let asylum-seekers work legally from day one. The Biden Administration has taken this step for many Venezuelans already in the US. But it needs to expand work authorization to other asylum seekers.

I do think Demsas gets one point wrong here. For the most part, it is not true that "the feds had a plan for where to place" U4U participants.  The program requires each migrant to have a US sponsor. But, beyond that, the federal government makes little or no effort to control where and how they live.

I myself am a sponsor in the U4U program, and have advised other sponsors and migrants.  Generally speaking, the migrants decide for themselves where they are going to settle in the US. Sponsors advise, but do not dictate. I now have eight Ukrainian sponsorees. To my knowledge, never once has a federal official attempted to plan where they live and work, or even offered advice on that subject.

Instead of planning and controlling, U4U mostly lets the market and civil society work. That, I think, is the real key to its success. While I don't myself have CNVH sponsorees, I know people who do; that program seems much the same.

Demsas also notes that, even when it comes to asylum seekers, the  dfficulties encountered in New York and Chicago have largely been avoided in cities like Houston and Miami, even though the latter also have experienced recent influxes. What's the difference between these cases? I don't know for sure. But a major factor is likely that the cities with serious problems also tend to have highly restrictive zoning rules, which make it difficult or impossible to build housing in response to demand. I have previously noted this issue in the case of New York.

By contrast, Houston is famous for not having zoning at all (thereby making housing construction easy, and housing itself very affordable). And Miami is at least less restrictive than cities like New York and Chicago.

In New York, housing issues have been exacerbated by the city's ill-advised free shelter guarantee, which incentivizes both migrants and poor natives to seek out free housing at public expense. New York would be well-advised to end the guarantee, while simultaneously ending exclusionary zoning rules that block new housing construction.

It is also true, as Demsas notes, that Texas Gov. Greg Abbott's migrant busing program—which has heavily targeted New York and Chicago—has caused disruption in those cities:

When immigrants make their way to a city in an organic fashion, they usually are drawn to a place where they have family ties, job leads, or other connections and resources available….

That's very different from the haphazard Texas busing program. When Abbott's buses arrive at their destinations, many of them are filled with people who had specific plans to go somewhere else. Cities then re-ticket many of the passengers. The mayor of Denver told me that roughly 40 percent of asylees who are bused into his city have no intention of staying there.

Abbott should stop the busing program, and instead let migrants choose their own destinations and pay their own way. In addition to increasing the migrants' economic productivity (thereby boosting the US economy) and reducing disruption in New York and Chicago, it would also save Texas taxpayers money. The state has spent some $148 million busing migrants to other parts of the country.

In sum, the "migrant crisis" is largely caused by a combination of perverse federal, state, and local policies that bar asylum seekers from working legally, artificially restrict housing construction, and bus migrants to places other than where they actually want to go. Migrants who enter by programs that avoid these obstacles don't cause any crises. Indeed, they are actually assets to the economy. If governments want to end the "crisis," for the most part they need only get out of the way.

The post The "Migrant Crisis" is Caused by Flawed Work and Housing Policies, not Migrants appeared first on Reason.com.

Today the Supreme Court refused to review Coalition for TJ v. Fairfax County School Board,  a case in which the Thomas Jefferson High School for Science and Technology ("TJ")—a selective high public school in Fairfax County, Virginia —used facially neutral means to to reduce the percentage of Asian students it admitted. In 2020, TJ adopted a new admissions policy that, while  neutral on its face, was actually intended to reduce the percentage of Asian-American applicants accepted at the school, in order to increase the percentage of other groups, and get a student body closer to the population demographics of Fairfax County (which is about 19% Asian).

I criticized the Fourth Circuit appellate court opinion in this case here, analyzed the district ruling in favor of the plaintiffs here.

Before proceeding, I should note that my wife, Alison Somin, is one of the Pacific Legal Foundation attorneys representing the plaintiffs in this case (a group of parents of Asian-American applicants to TJ), on a pro bono basis. If you want to discount what I say because of this connection, you are free to do so. But my interest in both anti-Asian discrimination in education and the more general issue of the use of "facially neutral" policies for discriminatory purposes long predates Alison's work on the TJ case. Anyone who cares to check will, I think, find that my take on the case is completely consistent with my previously expressed views on these two interconnected topics.

Justice Samuel Alito (joined by Justice Thomas) wrote a forceful dissent to denial of certiorari, warning that the lower court ruling sets a dangerous precedent (I raised similar concerns myself, as did Judge Allison Jones Rushing in her dissent to the Fourth Circuit ruling):

A group representing applicants for admission to a highly competitive public magnet school brought suit, claiming that changes in the school's admissions requirements violated the Equal Protection Clause. They alleged that the changes were made for the purpose of discriminating on the basis of race, to the detriment of Asian-American applicants. The District Court found that direct and circumstantial evidence supported that claim and issued aninjunction against implementation of the changes. On appeal, however, a divided Fourth Circuit panel reversed and held that the plaintiff 's claim failed simply because the challenged changes did not reduce the percentage of Asian-American admittees below the percentage of Asian-American students in the schools in the jurisdictions served by the magnet school. What the Fourth Circuit majority held, in essence, is that intentional racial discrimination is constitutional so long as it is not too severe. This reasoning is indefensible, and it cries out for correction….

The panel majority held that the Coalition could not prevail because, as the majority saw things, the new policy "visit[ed] no racially disparate impact on Asian American students" since, even after use of the new policy began, Asian Americans still received 54.36 percent of the admissions offers [compared to the previous 73%]….This percentage exceeded the percentage of Asian- American students in the applicant pool, and therefore, according to the panel majority's reasoning, Asian-American students had no cause to complain. As the panel majority put it, "an application of elementary arithmetic shows that Asian American students, as a class, experience no material disadvantage under the policy's functioning" and in fact perform "better in securing admission to TJ than students from any other racial or ethnic group…."

As Judge Rushing explained in dissent, under the Fourth Circuit's view, the Constitution permits "facially neutral laws explicitly motivated by racial discrimination, as long as the law's negative effect on the targeted racial group pushes it no lower than other racial groups…."  "It would not matter, for example, if a new law cut a racial group's success rate from 90% to 30% and the legislature was open about its discriminatory purpose, as long as no other racial group succeeded at a higher rate…. " This rule defies law and logic.

Consider the following hypothetical case. Suppose that white parents in a school district where 85 percent of the students are white and 15 percent are black complain because 10 of the 12 players (83 percent) on the public high school basketball team are black. Suppose that the principal emails the coach and says: "You have too many black players. You need to replace some of them with white players." And suppose the coach emails back: "Ok. That will hurt the team, but if you insist, I'll do it." The coach then takes five of his black players aside and kicks them off the  team for some contrived—but facially neutral—reason. For instance, as cover, he might institute a policy that reserves a set number of spots on the roster for each of the middle schools who feed to the high school. According to the reasoning of the Fourth Circuit majority, this action would not violate equal protection because the percentage of black players left on the team (approximately 42 percent) would exceed the percentage of black students in the school. I cannot imagine this Court's sustaining such discrimination, but in principle there is no difference between that imaginary case and one now before us.

As the district court found, the record in this case is full of statements indicating that race was the primary motivation for for the change in admissions policies, and that the School Board specifically sought to reduce the number of Asian students in order to increase the percentage of blacks and Hispanics, and also to—as the TJ principal put it—ensure the TJ student body better  "reflect[s] the racial composition in [the Fairfax County Public Schools].'" Other officials claimed that having too many Asian students was in itself harmful because it would damage TJ's "culture." State legislator Mark Keam fulminated about the "unethical ways" Asian-American parents "push their kids into [TJ]," when those parents are "not even going to stay in America," but instead are "using [TJ] to get into Ivy League schools and then go back to their home country."

The Fourth Circuit could have limited themselves to holding (wrongly, in my view) that the School Board would have adopted the new policy even in spite of illicit racial motivation; this is the relevant legal standard under longstanding Supreme Court precedent. But they went beyon that and made a much worse decision, holding that evidence of racist motivation is simply irrelevant so long as the group discriminated against is still represented at a higher rate than its percentage of the applicant pool. That's a dangerous precedent that can easily be abused in many circumstances, by both right and left-wing policy makers.

As I have previously noted, anti-Asian policies at TJ and many other elite educational institutions are reminiscent of efforts to reduce the number of Jewish students at many elite colleges in the early 20th century. Those policies, too, were often facially neutral, and in many cases the number of Jewish students admitted was still higher than the percentage of Jews in the applicant pool or in the general population. Yet, today, few doubt these policies qualify as anti-Semitic discrimination. The same reasoning should apply to the TJ case and others like it.

While the Court has refused to take the TJ case, the issues it raises are likely to recur. In the wake of the Supreme Court's decision in SFFA v. Harvard severely restricting open use of racial preferences in admissions, many schools are likely to use facially neutral means to achieve the same ends, by deliberately using admissions criteria that correlated with race. The problem of efforts to reduce the number of Asian students at elite institutions is also far from unique to this case. Indeed, it arose in the Harvard case itself.

The Supreme Court can run from these questions. But it can't hide from them for very long. If the justices try to do so, more and more institutions are likely to find "race neutral" ways to circumvent the Court's decision, and to target Asian students.

The post Supreme Court Refuses to Hear Case Involving Use of Race-Neutral Means to Facilitate Anti-Asian Discrimination at Selective Public High School appeared first on Reason.com.