Happy Tuesday and welcome to another edition of Rent Free. This week's stories include:
A federal appeals court slaps down the federal government's odd argument that it doesn't have to compensate landlords for its eviction moratorium because the moratorium was illegal.
Vice President Kamala Harris sets a first-term goal of building 3 million middle-class homes.
A Michigan judge sides with property owners trying to build a "green cemetery."
But first, a look at an under-the-radar federal regulation change that might make it easier for builders to create more small multifamily "missing middle" homes.
Code Games
In his 1942 book Capitalism, Socialism, and Democracy Joseph Schumpeter praised capitalist mass production for bringing almost every basic commodity, from food to clothing, within the affordable reach of the working man. The one exception he highlighted was housing, which he confidently predicted would soon see a similar collapse in prices due to mass-produced manufactured housing.
As it happens, manufactured housing production—which is built in factories and then shipped and installed on-site—peaked in the mid-1970s and has been limping along as a small share of overall home construction ever since.
Nevertheless, the dream that cheap, factory-built homes can deliver lower-cost housing has never died.
It's certainly alive and well in the current White House.
This past week, the Biden-Harris administration released a "fact sheet" of actions it was taking to lower housing costs. It included an in-progress regulatory change that would allow two-, three-, and four-unit homes to be built under the federal manufactured housing code set by the U.S. Department of Housing and Urban Development (HUD).
"The HUD Code creates economies of scale for manufacturers, resulting in significantly lower costs for buyers," says the White House in that fact sheet. Letting small multifamily housing be built under the HUD code will extend "the cost-saving benefits of manufactured housing to denser urban and suburban infill contexts," it says.
IRC, IBC, IDK
The proposed change comes at an interesting time for small multifamily housing construction.
Across the country, more and more states and localities are allowing more two-, three-, and four-unit homes to be built in formerly single-family-only areas.
That liberalization of the zoning code (which regulates what types of buildings can be built where) has set off a follow-on debate about which building code (which regulates construction standards) newly legal multiplexes should be regulated under.
Currently, the options are either the International Building Code (IBC) or the International Residential Code (IRC).
The IBC and IRC are model codes created by the non-profit International Code Council, which are then adopted (often with tweaks and changes) by states and localities.
The IBC typically covers apartment buildings of three or more units, while the IRC covers single-family homes. Neither is particularly well-suited for the regulation of smaller multi-family buildings that cities are now legalizing.
The IBC, for instance, requires expensive sprinkler systems that don't do much to improve fire safety in smaller buildings but can make their construction cost-prohibitive.
Zoning reformers have responded by trying to shift the regulation of smaller apartments into the IRC. But that raises its own problems, says Stephen Smith of the Center for Building in North America.
"It's a complicated thing to do because the IRC is not written for small multi-family. It's written for detached single-family," he says. "For traditional apartment buildings with a single entrance and stairs and halls and stuff, it's not really clear how the IRC would work with that."
The White House's proposed changes open the possibility of sidestepping this IRC-IBC dilemma entirely by letting builders of manufactured, multifamily housing opt into a single, national set of regulations.
A Floor or a Ceiling?
The question then is whether this will actually make life easier for builders.
The effect of HUD regulation on the production of single-family manufactured housing is a topic of intense debate.
Prior to the 1970s, manufactured housing was governed by a patchwork of state and local building codes. In 1974 Congress passed legislation that gives HUD the power to regulate manufactured housing.
Critics of HUD regulation argue that its initial implementation caused the steep decline in manufactured housing production in the 1970s.
In particular, they point to the HUD requirement that manufactured housing must sit on a steel chassis as a regulation that increases costs and decreases production.
Brian Potter, a senior fellow at the Institute for Progress and writer of the Construction PhysicsSubstack, contrastingly argues that HUD regulation has actually helped keep the cost of building manufactured housing down.
The production of all housing, not just manufactured housing, plummeted in the 1970s, he notes. Since the 1970s, the costs of non-manufactured, site-built housing have skyrocketed while the costs of building manufactured housing have risen much less, he points out. Potter argues that the effect of the steel chassis requirement is also overstated.
To this day, manufactured housing is the cheapest type of housing to produce when comparing smaller manufactured housing units to smaller site-built single-family housing units. The HUD code has less expensive requirements and allows builders more flexibility in the construction of units.
"The most interesting and attractive thing about the HUD code is that HUD code homes tend to be much, much less expensive than single-family homes," says Potter.
The hope is that allowing newly legal duplexes, triplexes, and fourplexes to be built under HUD standards would reduce costs compared to building them under IBC or IRC regulations.
Degrees of Change
While the HUD code has been in existence since the 1970s, its explicit exclusion of manufactured, multifamily housing is a relatively recent development. In 2014, HUD issued a memorandum saying that only single-family housing can be built under the department's manufactured housing standards.
In a 2022 public comment on the proposed updates, the Manufactured Housing Association for Regulatory Reform argues that the 2014 memorandum was in error and that HUD actually has no regulatory authority to cap the number of units that can be built under the code.
According to the White House fact sheet, the Biden administration's proposed updates to the HUD code would once again allow up to four units of housing to be built under the code once again.
If the HUD code critics are correct, then this will make a minimal difference. Under this theory, builders would just have another cost-increasing building code to choose from. If folks like Potter are correct, however, this should allow builders to opt into less demanding regulations. We might therefore see an increase in the number of two-, three-, and four-unit homes built.
Building code liberalization will still only be effective in places where zoning code liberalization has already happened. Cities and states still have every power to zone out multifamily housing and ban the placement of manufactured housing.
Where cities have made those "missing middle" reforms, however, it's possible the White House's proposed regulatory changes will increase the production of manufactured, multifamily housing while policymakers figure out whether how to change the IBC or IRC to allow more site-built multiplexes.
If the CDC's Eviction Moratorium Was Illegal, Do the Feds Have To Pay for It?
When the Centers for Disease Control and Prevention (CDC) banned residential evictions for non-payment of rent in 2020, property owners responded with a flurry of lawsuits, arguing that the federal government owed them compensation for what amounted to a physical taking of their property.
While those lawsuits were ongoing, the U.S. Supreme Court ruled in August 2021 that the CDC moratorium was an illegal overstepping of the agency's authority.
This armed the federal government with an audacious response to all those property owners' claims for compensation: Because the CDC's eviction moratorium was illegal and lacked federal authorization, the federal government wasn't required to pay any compensation.
Incredibly, the Court of Federal Claims agreed with this argument—citing past cases that immunized the government from having to pay compensation for clearly illegal, unsanctioned acts of its agents—and dismissed a property owners' lawsuit in the case of Darby Development Co. v. United States.
But this past week, the United States Court of Appeals for the Federal Circuit sided with property owners and reversed that dismal.
The appeals court ruled that the CDC eviction moratorium, while illegal, clearly did have the endorsement of both Congress and the executive branch.
"Taken to its logical conclusion, [the government's] position is that government agents can physically occupy private property for public use, resist for months the owner's legal attempts to make them leave, and then, when finally made to leave, say they need not pay for their stay because they had no business being there in the first place," wrote Judge Armando O. Bonilla in an opinion issued earlier this month.
The case is now remanded back to the federal claims court.
"The government should not be able to hide behind its own illegality to avoid paying damages for that very illegality," Greg Dolin, a senior litigation counsel at the New Civil Liberties Alliance (which filed an amicus brief in the Darby case) told Reason.
Kamala Harris, Supply Sider?
In a speech this past Friday laying out her economic agenda, Vice President and Democratic presidential candidate Kamala Harris criticized state and local restrictions on homebuilding for driving up prices.
"There's a serious housing shortage in many places. It's too difficult to build, and it's driving prices up. As president, I will work in partnership with industry to build the housing we need, both to rent and to buy. We will take down barriers and cut red tape, including at the state and local levels," said Harris, promising to deliver 3 million units of housing that's affordable to middle-class families by the end of her first term.
It's always refreshing to hear a politician accurately diagnose the cause of America's high housing costs as a matter of restricted supply. It's even better when politicians promise to do something about those supply restrictions. Harris' remarks are rhetorically a lot better than the explicit NIMBYism coming from Republican presidential contender Donald Trump.
Nevertheless, Harris' actual housing policies, including downpayment subsidies and rent control, will only make the problem worse. Downpayment subsidies will drive up demand and prices while leaving supply restrictions in place. Rent control has a long, long record of reducing the quality and quantity of housing.
Harris' speech was also peppered with lines attacking institutional housing investors who are providing much-needed capital for housing production.
Town's Ban on 'Green Cemetery' Is Dead
If the government doesn't like your cemetery, can it just ban all cemeteries? The answer, at least in Michigan, is no, no it can't.
In the case of Quakenbush et al v. Brooks Township et al, a state circuit court judge sided with a married couple who'd sued their local government when it passed a ban on new cemeteries with an eye toward stopping their development of the state's first "conservation burial forest."
"We're excited and feel vindicated by this ruling. We are delighted that the judge understood that Brooks Township's ordinance violated our right to use our property," said Peter and Annica Quakenbush, the plaintiffs in the case. They were represented by the Institute for Justice.
Quick Links
Jim Burling, the Pacific Legal Foundation's vice president of legal affairs, has a new bookNowhere to Live covering the legal history of zoning in America, the courts' acquiescence to this restriction on property rights, and all the attendant consequences of high housing costs and homelessness that have flowed from it.
A new paper published on SSRN estimates that a 25 percent reduction in permitting times in Los Angeles leads to a 33 percent increase in housing production.
Calmatters covers the killing, or severe injuring, of various bills introduced in the California Legislature this year that aimed to pair back the California Coastal Commission's powers to shoot down new housing production. Read Reason's past coverage of the Coastal Commission here and here.
Hawaii has legalized accessory dwelling units statewide, but they haven't made building them easy.
If you build it, prices drop.
*UPDATED* (and still true)
When you build "luxury" new apartments in big numbers, the influx of supply puts downward pressure on rents at all price points -- even in the lowest-priced Class C rentals. Here's evidence of that happening right now:
A Michigan couple sued when their local township passed an ordinance to prevent them from opening a cemetery. This week, in a victory for property rights, a judge ruled in the couple's favor and threw out the ordinance entirely.
As Reasonreported in January, Peter and Annica Quakenbush wanted to open a "green" cemetery, allowing people to bury their loved ones in a natural and environmentally friendly manner, free of chemicals like formaldehyde and coffins containing metal. They specifically intended to establish a conservation burial ground, in which decedents would be buried in biodegradable coverings like cotton shrouds or wooden caskets and the burial sites would be marked by natural landmarks like rocks or native trees. The site would otherwise remain an undisturbed forest.
The Quakenbushes bought a 20-acre plot near Brooks Township and started putting together the necessary paperwork. But local officials had other plans in mind, and in June 2023, the Brooks Township Board passed an ordinance prohibiting the establishment of all new cemeteries.
"In the past, cemeteries elsewhere have taken up large amounts of sometimes otherwise productive land," the ordinance declared. "Cemetery landscaping, grass cutting, monument repair and upkeep costs have increased dramatically over time. The problems associated with abandoned or 'orphan' cemeteries have increased throughout Michigan, and citizens look to the local municipal government…to take over abandoned or orphan cemeteries."
According to the Quakenbushes' lawsuit, after they first inquired about establishing their cemetery in February 2022, a zoning official emailed the township's legal counsel. "It is our general recommendation that new private cemeteries not be allowed within the Township except under certain very limited circumstances," the attorney replied. "Almost certainly, at some time in the future (whether in a few decades or the distance [sic] future), the family members of the deceased individuals will no longer own the parcel involved. What happens to the burials then? In all likelihood, it would devalue the property and make it unmarketable or difficult to sell."
"My response to that is, what does it matter? It's not your property," Renée Flaherty, an attorney with the Institute for Justice who represented the Quakenbushes, told Reason in January.
Besides, there were numerous mechanisms in place to prevent that outcome: Establishing a conservation burial ground in accordance with the Green Burial Council's criteria, as is the Quakenbushes' intent, requires obtaining a conservation easement—preventing the land from being used for other purposes—and partnering with a land conservancy that can maintain the property in perpetuity.
Michigan state law also requires all private cemeteries to establish an "endowment and perpetual care trust fund," with $50,000 to start and monthly deposits of "not less than 15% of all proceeds received."
"Nearly 250 people had reserved a burial plot even while the ban was in place," a local FOX affiliate reported.
The Quakenbushes sued to overturn the ordinance as a violation of due process. The township filed a motion to dismiss the lawsuit. This week, after hearing oral arguments, Newaygo County Circuit Court Judge David Glancy not only dismissed the township's motion but found the ordinance unconstitutional.
A written order was not available at press time; a representative of the Newaygo County Circuit Court tells Reason that the court directed the plaintiffs' attorneys to prepare a ruling, which the judge will review in a later hearing.
"We're excited and feel vindicated by this ruling," the Quakenbushes said in a statement released by the Institute for Justice. "We are delighted that the judge understood that Brooks Township's ordinance violated our right to use our property and operate our cemetery."
"The Green Burial Council (GBC) is pleased to learn that Newaygo County, Michigan Circuit Judge David Glancy rejected Brooks Township's attempt to throw out a lawsuit against the 'cemetery ban' ordinance," the GBC said in a statement to Reason. "The Green Burial Council has stated before, that we believe Brooks Township's ordinance stood on a weak foundation of misinformation about green burial's negative impact on soil and water, and other similar fears. Though individuals may experience genuine trepidation about a naturally interred body's impact on their environment, local governments can easily find scientific evidence proving no such impact when burial practices are performed according to industry standards."*
UPDATE: This piece has been updated to include a statement from the Green Burial Council.
Donald Trump used to boast about not needing a teleprompter, but had a fit today when he couldn't read his teleprompter (emphasis on "couldn't read").
"Isn't it nice to have a president who doesn't need a teleprompter?" he once asked, as shown in the "then" part of a then-and-now video posted by MeidasTouch (see below). — Read the rest
Tressa Beltran, former police chief of Hartford, Michigan, has been charged with multiple felonies, including delivery of narcotics, larceny, extortion, using a computer to commit a crime, embezzlement over $50 by a public official, and three counts of drug possession. Beltran reportedly admitted stealing from the drug disposal box at the police department. Now a new lawsuit against Beltran and the city claims she coerced Hai Quoc Le Jr. into providing her with pain medication he was prescribed for a torn ACL. Le is on parole, and according to his lawsuit, Beltran threatened to make his life "a living hell" if he didn't provide her with drugs, by reporting him to his parole officer and charging him criminally. Le says Beltran was often in her uniform and on duty when she met with him.
Voters in California went to the polls this week for a primary election that's the first step towards picking a permanent replacement for the late Sen. Dianne Feinstein, who died nearly six months ago.
In Washington, meanwhile, Feinstein is still wielding influence from beyond the grave. Her name is attached to 256 different earmarks included in the budget bill working its way through Congress this week. Those pork projects will cost taxpayers about $1.1 billion if the bill passes in its current form, the Washington Examiner reported Tuesday.
And that only scratches the surface. The partial budget deal—which contains six of the 12 appropriations bills that make up the discretionary portion of the annual federal budget—is overflowing with earmarks to fund lawmakers' pet projects. All told, there are more than 6,000 earmarks in the bill, costing taxpayers more than $12.7 billion, according to Sen. Mike Lee (R–Utah), who has urged Republicans to vote against the package.
Many of the earmarks in the package seem like things that would be better funded by local or state taxpayers, who at least might stand to benefit from projects like new sewer systems, new runways and other upgrades for tiny rural airports, and a plethora of highway projects. Some are truly head-scratching, like Sen. Tammy Baldwin's (D–Wis.) $1.4 million earmark for a solar energy project in Wisconsin, one of the places in America least well suited for a solar farm.
Plenty of others make no sense for the public to be funding at all. Like a $3.5 million earmark secured by Sen. Debbie Stabenow (D–Mich.) for The Parade Company, which runs Detroit's annual Thanksgiving Day parade. Or the $2.5 million earmark that will help build a new kayaking facility in Franklin, New Hampshire, curtsey of Sen. Jeanne Shaheen (D–N.H.), as well as $2.7 million line item to help build a bike park in White Sulfur Springs, West Virginia, a town with a population of less than 2,300 people.
For that amount of money, "you could buy EVERY resident a $1,200+ bike" Sen. Rick Scott (R–Fla.), who has become a vocal critic of the earmarks in the bill, posted on X (formerly Twitter). "There's no way they need this much of YOUR money for this."
The same could be said for several Republican-based earmarks too. Sen. Lindsey Graham (R–S.C.) has inserted at least eight earmarks into the bill, forcing federal taxpayers to put up more than $33 million for things most will never use, like a new trail at Coastal Carolina University and an ROTC facility at the University of South Carolina. Among the dozens of earmarks inserted by Sen. Lisa Murkowski (R–Alaska), perhaps the strangest is the $4 million grant for the "Alaska King Crab Enhancement Project."
Wait, you might be thinking, didn't Congress ban the use of earmarks when tea party-era Republicans controlled the government? Yep, they did. But like fiscal responsibility and concern about America's ballooning entitlement costs, those efforts to limit pork barrel spending are now distant memories. Democrats voted to reinstate earmarks in 2021, and Republicans soon followed suit.
To Congress' credit, earmarks are now handled more transparently than they used to be—which is why you can view the full list of earmarks included in the budget bills here.
A new candidate is making waves in the Democratic primaries: nobody. Organizers had urged Democrats to vote "uncommitted" in the Michigan primary on Tuesday, a way to show President Joe Biden that his foreign policy risked losing a crucial swing state. Around 13 percent of Democratic primary voters did, exceeding organizers' expectations.
The campaign was led by Arab Americans angry with U.S. military involvement in Gaza and Yemen. Other voters were motivated by a lesser-known side of Biden's foreign policy: The Armenian National Committee of America (ANCA) also campaigned for uncommitted votes in order to protest Biden's support for Armenia's enemy Azerbaijan.
"We didn't deliver the bulk of those votes, clearly, but we were part of it, and we were happy to be a part of it," says Aram Hamparian, executive director of ANCA. Armenians are looking to organize similar campaigns in Nevada and Pennsylvania, two other swing states with robust diaspora communities, according to Hamparian.
The U.S. Census counts 17,000 Armenian Americans in Michigan, although it may be an undercount, as the Armenian Community Center in Dearborn says that there are 50,000 Armenian Americans in the state. Both the Armenian and Arab communities in the state date back more than a century.
The Armenian uncommitted campaign went public on February 20, when ANCA board member Dzovinar Hatsakordzian published an op-ed in The Armenian Weekly announcing that she would vote "uncommitted" in the Michigan primary.
"I was surprised with the reaction of the community," Hatsakordzian tells Reason. "When we started, we didn't think that they would be open to the idea, but [the support] was overwhelming."
Armenian Americans "tend to align along with the area they live in" in terms of party politics, but "they'll cross a party line if they feel like there's a very stark issue before them," Hamparian says. "The military aid to Azerbaijan is our chief complaint about Biden."
In September 2023, the Azerbaijani military stormed the Armenian-majority territory of Nagorno-Karabakh, driving out almost the entire population, an act that many outside observers have called ethnic cleansing or even genocide. It was the ugly coda to a long, brutal conflict between Armenia and Azerbaijan.
During the collapse of the Soviet Union, the Armenians of Nagorno-Karabakh had attempted to declare their independence from Azerbaijan, leading to a war that involved atrocities and mass displacement on both sides. (The territory is also called Artsakh in Armenian.) The conflict froze in the mid-1990s and restarted with an Azerbaijani offensive in September 2020.
"If they do not leave our lands of their own free will, we will chase them away like dogs and we are doing that," Azerbaijani President Ilham Aliyev said in an October 2020 speech. Aliyev also stated that he would welcome Nagorno-Karabakh's Armenians as fellow citizens, a claim that Armenians were inclined to disbelieve after Azerbaijani troops beheaded two elderly Armenian men on camera.
Azerbaijan's wars have been funded, in part, by the American taxpayer. Congress initially tried to stay out of the conflict, banning military aid to Azerbaijan in 1992. A decade later, the U.S. government reversed course, hoping to gain a new strategic ally, because Azerbaijan is located between Iran and Russia and along key air routes to Afghanistan.
Every president since George W. Bush has waived the congressional aid restrictions, and Washington provided $164 million in "security assistance" to the Azerbaijani military between 2002 and 2020. Most of that aid, over $100 million, came during Donald Trump's presidency.
After the 2020 offensive, then-candidate Biden demanded an end to the aid. But after he took office, Biden continued to sign off on the security assistance programs.
"The bulk of military aid to Azerbaijan went under Trump, and the [2020 offensive] took place in the last months of Trump's presidency, so he bears heavy responsibility for that," Hamparian says, but "having witnessed the war, [Biden] continued the military aid."
There was a particularly strong sense of whiplash within the Armenian-American community in April 2021. That month, Biden recognized the World War I–era mass murder of Armenians in Turkey as a genocide, a move that Armenian Americans have long called for. A few days later, Biden went back on his campaign promise and approved additional aid to Azerbaijan.
The Biden administration announced its genocide recognition with massive media fanfare, while it quietly notified Congress about the military aid. Biden was behaving "as if somehow Armenians will not notice that he's arming a genocidal state in the same week that he's recognizing a genocidal crime," Hamparian says.
U.S. military aid, which mostly focuses on border security, is not a make-or-break issue for the Azerbaijani army. Between 2010 and 2020, the majority of Azerbaijan's weapons came from Russia, with smaller contributions from Israel, Belarus, and Turkey. Russia also supplied nearly all of Armenia's weapons in the same period.
In addition to selling weapons to both sides, Russia has had peacekeepers in Nagorno-Karabakh since November 2020. Those troops have largely not acted to protect the local population.
However small U.S. aid was in the grand scheme of things, Hamparian believes that the very existence of that aid was "morally emboldening" to Azerbaijani leaders, who thought they had an American green light.
Then came the starvation siege. In late 2022 and early 2023, the Azerbaijani army gradually cut off Nagorno-Karabakh's access to the outside world. Severe shortages set in. Azerbaijan was even rumored to be building a concentration camp for Armenian men, a rumor that New Lines journalists were able to corroborate using satellite imagery.
Her voice filled with emotion, Hatsakordzian describes the Armenian-American message to the Biden administration at the time: "We went to them, and we said we know this is going to end with ethnic cleansing…Why is my taxpayer money going to fund a genocidal country such as Azerbaijan?"
Those fears came true in September 2023, when the Azerbaijani army overran the territory, leading to a mass Armenian exodus. The Biden administration then paused military aid to Azerbaijan, and the Senate moved to make it a two-year suspension. At the time, Hamparian called Washington's actions "a day late and a dollar short."
Hatsakordzian says that she does not currently plan to vote for Biden, and that in order to win back her vote, "he can sanction Azerbaijan, he can stop sending weapons to Azerbaijan, and take concrete actions to stop the genocide that is going on."
Some Armenian Americans also sympathize with Arab Americans' campaign against the Biden administration.
The two campaigns "share the exact same frustrations" with U.S. foreign policy, says Sarah Leah Whitson, executive director of Democracy in the Arab World Now, a Washington-based nonprofit. She is an Armenian American whose own family escaped to Jerusalem in the wake of the Armenian genocide, before fleeing again due to the Israeli-Palestinian conflict.
Whitson compares Armenian-American grievances with U.S. support for Azerbaijan to Palestinian-American grievances with U.S. support for Israel: "You have a strong diaspora community that's deeply opposed to an abusive regime, and they find their own government supporting it."
ANCA has been more circumspect about its stance on the Israeli-Palestinian conflict. Hatsakordzian and Hamparian emphasize that Armenians have good relations with their Arab and Jewish neighbors alike. Yet Hamparian supports, on principle, the other efforts to pressure the Biden administration in the primaries.
"Everyone who voted 'uncommitted' went to the polls trying to bring accountability to our foreign policy system, and that's a good thing," Hamparian says. "Exercises like this remind [politicians] that foreign policy doesn't start and end at the State Department. It's the property of the American people."
Just 15 percent of Americans approve of the job Congress is doing. But why is it broken and how do we fix it? Those are just two of the questions that Reason's Nick Gillespie asked Justin Amash, the former five-term congressman from Michigan who is currently exploring a Senate run.
Elected as part of the Tea Party wave in 2010, Amash helped create the House Freedom Caucus but became an increasingly lonely, principled voice for limiting the size, scope, and spending of the federal government. After voting to impeach Donald Trump, he resigned from the GOP, became an independent, and then joined the Libertarian Party in 2020, making him the only Libertarian to serve in Congress.
They talked about the 2024 presidential election and the country's political and cultural polarization that seems to be growing with every passing day. And about how his parents' experiences as a Christian refugee from Palestine and an immigrant from Syria inform his views on foreign policy, entrepreneurship, and American exceptionalism.
This Q&A took place on the final day of LibertyCon, the annual event for Students for Liberty that took place recently in Washington, D.C.
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Watch the full video here and find a condensed transcript below.
Nick Gillespie: Why is Congress broken and how do we fix that?
Justin Amash: We can take up the whole 30 minutes talking about that if we wanted to. We don't know exactly how Congress got to where it is, but today it is highly centralized, where a few people at the top control everything. And that has a lot of negative consequences for our country. Among them is that the president has an unbelievable amount of power because the president now only has to negotiate with really a few people. You have to negotiate with the speaker of the House. You have to negotiate with the Senate majority leader and maybe some of the minority leaders. But it's really a small subset of people that you have to negotiate with. And when that happens, it gives the president so much leverage.
So when we talk about things like going to war without authorization, as long as the speaker of the House isn't going to hold the president accountable and the Senate majority leader is not going to, the president is just going to do what he wants to do. And when it comes to spending, as long as the president only has to negotiate with a couple of people, the president's going to do whatever the president wants to do. So it's super easy in the system for the president to essentially bully Congress and dictate the outcomes.
But there's a deeper problem with all of this, which is that representative government is supposed to be a discovery process. You elect people to represent you. You send them to Washington, and then the outcomes are supposed to be discovered by these representatives through discussions and debates, and the introduction of legislation, and amendments. You're supposed to have lots of votes, where the votes freely reflect your will representing the people back home. But instead, in Congress today, a few leaders are deciding what the final product is and then they're not bringing it to the floor until they know they have the votes. So there's no actual discovery process. Nancy Pelosi used to brag about this; she wouldn't bring a bill to the floor unless she knew it was going to pass. Which is the opposite of how Congress should work.
Gillespie: What are some of the ways to decentralize power within Congress? When you were in Congress, you founded the Freedom Caucus, which was supposed to be kind of a redoubt of people who believed in limited government and libertarian and conservative principles and actually even some liberal principles, but decentralizing authority. You got kicked out of the Freedom Caucus, right?
Amash: Well, I resigned from it.
Gillespie: Well, you were asked to leave. The police sirens were coming, and it's like, "Hey, you know what? I'm going to go," right? But even places like that, that were explicitly designed to act as a countervailing force to this unified Congress, how can that happen? What can you do or what can somebody do to make that happen?
Amash: Well, it does take people with strong will. I think that when we go to vote for our elected officials, when you go to vote for a representative, when you go to vote for a senator, you have to know that that person is willing to stand up to the leadership team. And if that person's not willing to break from the leadership team on a consistent basis—and this doesn't mean they have to be mean or anything like that; it just means that they have to be independent enough where you know they're willing to break from their leadership team. If they're not willing to do that, it doesn't matter how much they agree with you on the issues, don't vote for them because that person is going to sell out. There's no chance they're going to stand up for you when it counts. I think you need to have people who have a strong will, who are going to go there and actually represent you and are willing to stand up to the leaders.
Gillespie: If you are interested in Congressman Amash's commentary on contemporary issues, go to his substack Justin Amash. The tagline is: "A former congressman spills on Congress and makes the practical case for the principles of liberty." It's a great read, particularly on issues you mentioned.
Can you tell us how you discovered libertarian ideas? You got elected in 2010, which was a wave election. It was part of the Tea Party reaction to eight years of Bush, and more problems during the financial crisis and the reaction of the government to that. Where did you first encounter the ideas of liberty, and how did that motivate you to get into Congress?
Amash:The ideas of liberty are something that have been with me since I was a child. It's hard to pinpoint exactly where they came from. I think they came from my parents' immigrant experience, coming to the United States. My dad came here as a refugee from Palestine. He was born in Palestine in 1940. And when the state of Israel was created in '48, he became a refugee. My mom is a Syrian immigrant.
When my parents came here, they weren't wealthy. My dad was a very poor refugee. He was so poor that the Palestinians made fun of him. So that's really poor. When he came here, he didn't have much, but he felt he had an opportunity. He felt he had a chance to start a new life, a chance to make it, even though he came from a different background from a lot of people, even though his English wasn't great compared to a lot of people. So he came here and he worked hard, and he built a business. When we were young, he used to tell us that America is the greatest place on earth, where someone can come here as a refugee like he did and start a new life and have the chance to be successful. It doesn't matter what your background is. It doesn't matter what obstacles you face. You have a chance here and you don't have that chance in so many places around the world.
I think that's where that spirit of liberty came from. It was from my dad's experience especially, my mom as well, coming here as a young immigrant. So I was always a little bit anti-authoritarian as a child. I rebelled against teachers at times. I didn't like arbitrary authority, let's put it that way. When someone would just make up a rule, like this is the rule, "I just say so/" Well, tell me why.
Gillespie: Have you rethought that as a parent?
Amash: No, I mean, I let my kids think very freely.
Gillespie: As long as they follow the rules.
Amash:I don't mind when they are a little bit rebellious. I think it doesn't hurt for kids to have some independence. I encourage them to challenge their teachers, even when they think the teacher is wrong about something. I think that it's a good thing for people to go out there and not just accept everything as it is.
Gillespie: You famously, as a congressman, explained all of your votes on Facebook, which is a rare concession by authority to say, okay, this is why I did what I did.
Amash:Yeah. Actually, a lot of the people in leadership and in Congress didn't like that I was doing that because I was giving people at home the power to challenge them. Instead of just being told this is the way it is, now I was revealing what was going on.
Gillespie: You grew up in Michigan. You went to the University of Michigan as an undergrad and for law school. Was it there that you started coming across names like Hayek, and Mises, and Friedman, Rand, and Rothbard?
Amash: Not really, no. My background is in economics, my degree is in economics. I did well in economics at Michigan, but we sure didn't study Austrian economics. We didn't study Hayek. I think he might have been mentioned in one class. Very briefly he was mentioned, like there was one day where he was mentioned. But I'd say that what happened is, as I went through my economics degree, and then I got a law degree at Michigan as well, I started to realize that I had a lot of differences from other people who were otherwise aligned with me. I was a Republican. I aligned with them on a lot of things, but there were a number of issues where we didn't align— some of the foreign policy issues, but certainly a lot of civil liberties issues.
I started to wonder, what am I? What's going on here? I just thought of myself as a Republican, and I would read the platform and hear what they're saying. They believe in limited government, economic freedom, and individual liberty.
But when push came to shove on a lot of issues, they didn't believe those things. They'd say they believe those things, but they didn't. I've told this story before, I just typed some of my views into a Google search, and up popped Hayek's Wikipedia page. Literally, it was like the top thing on Google. So I clicked on that, started reading about them, and I was already in my mid-20s at this time. And I was like, yes, this is what I believe.
Gillespie: It is interesting because you would have been coming of age during a time when the Republicans were ascendant. But they were the war party. And we were told after 9/11 that you should not speak freely. That was kind of a problem, right?
Amash: Yeah, sure. Throughout my life, I believed in freedom of speech, freedom of thought, and freedom of expression. These are critical values. Maybe they're the essence of everything that makes this country work. The idea that we come from a lot of places—there's an incredible amount of diversity in the United States. I think diversity is always treated or often treated like a bad word these days. But it's a blessing to our country that we have people who come from so many backgrounds. Actually, the principle of liberty is about utilizing that diversity.
It's in centrally planned systems where diversity is not utilized, where someone at the top dictates to everyone else and doesn't take advantage of any of the diversity. They say no, a few of us at the top, we know everything. It doesn't matter. All of your backgrounds, all of your skills, all of your talents, that doesn't matter. What matters is we've got a few people in a room somewhere, and they're going to decide everything. And they know best because they're experts.
Gillespie: You came into office in 2011, and it seemed like there was a real libertarian insurgency within the Republican Party. But more nationally in discourse, people were tired of continued centralization, and government secrecy—famously, a lot of Bush's activities and particularly war spending early on was done in supplemental and emergency preparations, not really open to full discussions.
All of the stuff coming out of the Patriot Act, somebody like Dick Cheney kind of saying we're in control. But then Obama also promised the most transparent administration ever and plainly did not deliver on that.
That energy pushing back on centralization and government power and government secrecy that helped bring you and other people like you to Congress seems to have dissipated. Do you agree with that? And if so, what took that away?
Amash: Yeah, I agree with that. When I was running for office, both for State House in 2009 and when I got to Congress in 2011, there was a lot of energy behind a limited government, libertarian-ish republicanism. I felt like libertarianism was really rising. There was a chance for libertarian ideals to get a lot of traction. A lot of people who used to be more like Bush conservatives were coming around to the libertarian way.
I felt really good about where things were heading. And for the first, I'd say three or four years that I was in Congress, I felt like we continued to move in the right direction. The creation of the Freedom Caucus was kind of a dream of bringing people together to challenge the leadership. They weren't all libertarians or anything like that. There are a few who are libertarian-leaning, but the idea that a group of Republican members—it wasn't determined that it was going to be only Republicans, but it ended up being Republicans—got together and said, "Hey, we're going to challenge the status quo. We're going to challenge the establishment." That was kind of a dream that had come together.
Then when Donald Trump came on the scene, I think a lot of that just fell apart because he's such a strong personality and character, and had so much hold over a lot of the public, especially on the Republican side, that it was very hard for my colleagues to be able to challenge him.
Gillespie: What's the essential appeal of Trump? Is it his personality? Is that that he said he could win and he ended up doing that at least once? Is it a cult of personality? What's the core of his appeal to you?
Amash: I think he is definitely a unique character. He has a certain charisma that is probably unmatched in politics. I don't think I've ever seen someone who campaigns as effectively as he does. It doesn't mean you have to agree with all of the ethics of what he does or any of that, or the substance.
Gillespie: To keep it in Michigan, he's a rock star. He's Iggy Pop. You may not like what he's doing on the stage, but you can't take your eyes off it.
Amash:That's right. He holds court. When he's out there, people pay attention. He really understands the essence of campaigning, and how to win a campaign. He understands how to effectively go after opponents. Now, again, I'm not saying that all of these things are necessarily ethical or that other people should do the same things, but he really understands how to lead a populist movement.
Gillespie: How important do you think in his appeal is a politics of resentment, that somehow he is going to get back what was taken from you?
Amash: The whole Make America Great Again, there's a whole idea there of "someone is destroying your life, and I'm going to get it back for you." That's a very powerful thing to a lot of people. For a lot of people out there, it is more important to get back at others than necessarily to have some kind of vision of how this is all going to work going forward. It's not appealing to me because I understand, we live in one country. We have people of all sorts of backgrounds. And if you're going to persuade people, you have to be able to live with them and work with them, regardless of your differences. It doesn't mean that you can't be upset, be angry about what some other people are doing or saying. But there has to be an effort to live together here as one country. We have too much in common in this country.
Gillespie: Michigan was a massive swing state when he won the election. You voted to impeach Donald Trump. What went into that calculation? What was the reaction like to that? That's a profile in courage.
Amash:Well, I don't think that's my most courageous vote, not even by a long shot.
Gillespie: What was? Naming the post office after your father?
Amash:I didn't name any post offices after my father, to be clear. I think that the courageous votes are the ones where everyone is against you. And I don't mean just one party. It's one thing to vote for impeachment and half the country loves what you did and half the country doesn't like what you did. That's, in my mind, not that challenging or difficult. It's when you take a vote and you know that 99 percent of the public is going to misconstrue this, misunderstand it, be against it. The vote is going to be something like 433 to 1 in the House or something like that. Those are the tough votes. And there are plenty of those votes out there, where you're taking a principled stand and you're doing it to protect people's rights. But it's not the typical narrative.
Gillespie: Is there an example that, in your legislative record, you would put forth for that?
Amash:One of the ones I've talked about before is, they tried to pass some anti-lynching legislation at the federal level and everyone's against lynching, obviously, but the legislation itself was bad and would actually harm a lot of people, including harming a lot of black Americans. There was this idea that this legislation was good and parroted by a lot of people in the media. They didn't read the legislation. In fact, I complained about it and it mysteriously did not pass both houses of Congress after I pointed out all the problems with it. It did pass the House of Representatives. Did not pass both Houses and get signed by the president. Mysteriously, the next Congress, they reintroduced it and rewrote it in a way that took into consideration all of my complaints, and they tried to pass it off like they were just reintroducing the same legislation. I pointed out: They actually saw that there was a problem here and then tried to pretend like, "Oh, we're just passing it again." Those kinds of votes are tough because when you take the vote, everyone thinks you're wrong. Everyone. And you have to go home and you have to explain it. Those are the ones that are tricky.
Back to the impeachment point. Look, I'd impeach every president. Let's be clear. I'm not the kind of person who's going to introduce impeachment legislation over every little thing that a president does wrong. When you introduce legislation to impeach a president, you have to have some backing for it. It can't just be one person saying, let's impeach.
For example, I would definitely impeach President Biden over these unconstitutional wars 100 percent. But the idea of introducing impeachment legislation suggests there's other people who will join you. Otherwise, it's just an exercise in futility. You introduce it. It doesn't go anywhere. It just sits there. If we're going to impeach people, there has to be some public backing, which is why I try to make the case all the time for these impeachable offenses, why some legislation should be brought forth. But you've got to get the public behind you on that kind of stuff. I think that every president should be impeached, every recent president at least.
Gillespie: If Trump's populism, national conservatism, and politics of resentment are sucking up a lot of energy on the right, how do we deal with the rise of identity politics and a kind of woke progressivism on the left? Where is that coming from? And what is the best way to combat that?
Amash:I think a lot of it is just repackaged socialist ideas, collectivist ideas. The idea of equity, for example, is really like a perversion of the idea of equality. In most respects, when people say equity, they mean the opposite of equality. It means you're going to have the government or some central authority decide what the outcomes should be, how much each person should have, rather than some system of equality before the law, where the government is not some kind of arbiter of who deserves what. When you think about it, there is no way for the government to do this. There's no way for the government to properly assess all of our lives. This is in many ways the point of diversity: we're all so different. There's no way that a central authority can decide how to manage all that.
For many of the people on the woke left who say they care about diversity, they don't care about diversity if they're talking about equity. These things are in conflict with each other. The idea that you're going to decide that someone is more deserving than another based on some superficial characteristics. As an example—I've talked about this and I've talked about this earlier in this conversation—my dad came here with nothing as a poor refugee. Yet, in a lot of cases, he might be classified as just a white American. Even though he came here as an extremely poor Palestinian refugee. The New York Times, for example, classifies me as white. They might classify someone else who's Middle Eastern as a person of color.
I think a lot of this is just, someone is making decisions at the top saying, "Well, we think this person is more like this or that, and we're going to decide they're more deserving." But they don't know our backgrounds. They don't know anything about us. They don't know who deserves this or who deserves that. No central authority could figure that out. The best thing we can do is have a system of equality before the law, where the law treats everyone the same. It doesn't give an advantage to any person over another person. It may not be fair in some sense to some people. Some people might say, "well, that's not fair."
Some people, instead of having a dad who's a Palestinian refugee, their dad was some Silicon Valley billionaire. Some person might have a dad who was a professor. Another person might have a dad who worked at a fast-food restaurant. You don't know what the differences are. The government can't figure all of this out and say who is more deserving than someone else. So I really think that the woke left, when they pushed this idea of equity, they're really pushing against diversity. They're saying, a few people at the top are gonna decide who's valuable and who's not valuable, and they're not going to actually take into consideration any of our differences, because no central authority could take it into consideration.
Gillespie: You are a libertarian, not an anarchist. You believe there is a role for government, but it should be obviously much more limited. You are also an Orthodox Christian. Could you talk a little bit about how in a world of limited government, a libertarian world, the government wouldn't be doing everything for everybody, but placing organizations and institutions like the church or other types of intervening, countervailing, mediating institutions would help to fill the gaps that are left by the government?
Amash:The place for these organizations is to help society, not to have government deciding it. When you have some central authority deciding it, you are really limiting the opportunities for the public. You're limiting the opportunities for assisting people. You're deciding that a few people are going to make all the decisions, rather than having a lot of organizations and a lot of individuals making decisions.
When you centralize it all, there are a lot of people who are going to be missed, a lot of people who are going to be ignored. When you let the marketplace work this out, when you let private organizations work this out, there is a lot more opportunity for people who need help to get help. I think that's really important.
Gillespie: There was a libertarian wave—I like to call it a libertarian moment—which I think we're still living in, but we don't understand, rhetoric aside. What are the best ways to get libertarian ideas and sensibilities in front of young people, to really energize Gen Z? The world is getting young again. How do we make sure that these people are hearing and understanding and maybe being persuaded by libertarian ideas?
Amash:For one thing, we have to meet them where they are. I spend a lot of time, for example, asking my kids, which social media kids use these days? They're in a lot of places that the adults aren't. We might be on Facebook—I mean, my generation, your generation. Other people are on X or Twitter. And there are other people on TikTok.
You have to meet them where they are and if they're not on X and—it's still weird to call it X—if they're not on X and you are, well, they're not hearing your message. That's an issue. That's something we all have to work on. I'm probably reaching primarily Gen X and millennial people on X, and I'm probably not reaching Gen Z people as well. I think we need to work on getting them in those places.
Also, I think people who have libertarian instincts, people who want to present libertarianism and have an opportunity, go speak to students at schools. I used to do this as a member of Congress. I used that opportunity as much as I could. When schools would invite me, I'd say, "Yes, I'd be happy to come to the school to speak to the students" and take all their questions and be open about being a libertarian. Tell them frankly that your philosophy is libertarianism and talk to them about it. I think it's great. A lot of teachers end up surprised. I've had many teachers walk up to me and whisper to me, "I think I'm a libertarian, too," after having the conversation because they have stereotypes about what it might mean to be a libertarian and you have the opportunity to change their mind.
Gillespie: I have seen a lot of chatter. I have actually helped publish a lot of chatter that you may be running for the U.S. Senate from the mediocre state of Michigan. Do you have an announcement that you would like to make?
Amash: As a part of the national championship-winning state of Michigan this year, I am exploring a run for Senate. The [Federal Election Commission] FEC requires me to state that I am not a candidate for Senate, but I am exploring a run for Senate.
If you're interested in checking it out, go to https://exploratory.justinamash.com/. I'm giving it serious thought. I think that there is an opportunity for libertarians this year, and there's an opportunity to win a Republican Senate seat this year. So I'm looking at the Republican primary. I think this is probably the best shot libertarians have had in a long time in the state of Michigan.
This interview has been condensed and edited for style and clarity.
Photo Credits: Bill Clark/CQ Roll Call/Newscom; BONNIE CASH/UPI/Newscom
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