Month: February 2024

For the past several months, congressional lawmakers have attempted to forge a bipartisan border security deal. By many indications, that deal is on shaky ground—but that hasn’t stopped politicians from voicing some very unrealistic policy goals for the border.

House Speaker Mike Johnson (R–La.) floated one such goal while discussing a deal reportedly struck by a group of senators. “It seems the authority to shut down the border would kick in only after as many as 5,000 illegal crossings happen a day. Why? Why would we do that?” he said on Tuesday. “That would be surrender. The goal should be zero illegal crossings a day.”

(The deal would “automatically reject migrants and asylum seekers from crossing the border illegally once the daily average for border crossings surpasses 5,000 over a week or…8,500 on a single day,” per Axios.)

President Joe Biden has vowed to “shut down the border when it becomes overwhelmed” if Congress grants him that authority. “I would use it the day I sign” a bipartisan bill “into law,” he said. (Former President Donald Trump, meanwhile, has claimed that Biden already has this authority and said that he should get on with using it.)

As good as those promises might sound to border hawks, they’re not even remotely feasible. The U.S. government, for all the money and agents it’s thrown at the border over the past several decades, has never been able to practically “shut down the border” or achieve zero illegal crossings (all the legal issues with those proposals aside).

Between the creation of the Department of Homeland Security in 2003 and January 2021, the U.S. has spent $333 billion to fund the agencies tasked with immigration enforcement, according to the American Immigration Council, a pro-immigration nonprofit. The budgets for those agencies have been rising for years.

But more enforcement money hasn’t necessarily led to lower illegal crossings. As budgets have gone up, apprehensions of people who crossed the border between authorized ports of entry have gone up, down, and remained static. In other words, they don’t cleanly align: Though Customs and Border Protection reported 2.05 million apprehensions in FY 2023, it reported somewhat close to that number—over 1.5 million—in FY 2000. Annual apprehensions hovered below 500,000 from FY 2010 through FY 2018.

Tough enforcement doesn’t bring illegal crossings down to zero either. Even the pandemic-era Title 42 border order that effectively “closed the border to unauthorized border crossers” and asylum applicants couldn’t keep arrivals down, per a January report from the Migration Policy Institute (MPI). “Arrivals at the border increased dramatically through 2021 and 2022, despite the order remaining in place.”

A policy brief last May from the National Foundation for American Policy, drawing on 100 years of Border Patrol apprehensions data, found that “none of the three U.S. periods with a significant decline in illegal immigration were due to enforcement policies.” Rather, they were due to increased legal pathways as well as changing demographics and labor demand.

The U.S.-Mexico border stretches nearly 2,000 miles, much of it treacherous. No matter the funding and no matter the enforcement mandate, there’s no way that agents could stop every illegal crosser traversing the deserts, mountains, and waters that make up the border region. That’s proven impossible along much smaller and more surveilled borders, such as the boundaries of East Germany and North Korea.

All this suggests that it’s time for some reflection from today’s zero-illegal-crossings proponents.

“The contemporary challenge at the southwest border is one of border control rather [than] border security,” suggests the MPI. “The national objective must be not to solve the border control challenge by apprehending and removing 100 percent of unauthorized migrants, but rather to manage it in a manner consistent with the law and reasonably satisfactory to the American people.”

Any workable border deal should focus on ways to make legal immigration more accessible—and more attractive—than illegal immigration. That’s a proven way to reduce illegal crossings and a promising way to ensure that border agents can focus on actual threats rather than the vulnerable migrants who are simply seeking a place to live and work in peace.

The post 'Zero Illegal Crossings' Is an Unattainable Goal for the Border appeared first on Reason.com.

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In 2012, Pennsylvania lawmakers—including then-Gov. Tom Corbett, a Republican—crafted a proposal for Shell Oil Co. In exchange for tax incentives estimated to be worth as much as $66 million per year over 25 years—a total state investment of over $1.6 billion—plus a credit that would exempt the company from most, if not all, of its state and local taxes, Shell would build a polymer manufacturing plant in Beaver County, near Pittsburgh, instead of in Ohio or West Virginia. The plant, known as an “ethane cracker,” would refine ethane, a natural gas, to produce single-use plastics.

While that’s a huge investment from the state—and, by extension, from taxpayers—proponents said the project would more than pay for itself, generating millions of dollars in economic benefit that would create thousands of jobs. Two economic impact studies—each funded by Shell—backed up their claims.

But as it turns out, that optimism was misplaced, and the studies used to support the largest subsidy in Pennsylvania’s history were themselves shoddy. That finding comes from a new report by the Ohio River Valley Institute (ORVI), a think tank located in the Appalachian region.

The original studies “were used to justify an ‘investment’ of billions of dollars in Shell’s plan on the premise that the return-on-investment for taxpayers would be positive,” wrote the authors of the ORVI report. “It is, unfortunately, unlikely to be so.”

One study was conducted by professors at the Robert Morris University (RMU) School of Business in 2014, two years after the state approved the tax credits but before Shell purchased the site or began construction; the other study, conducted by some of the same professors, was released in 2021 as a follow-up.

The original study found, according to the ORVI report, that “the construction of the facility would bring millions of dollars in economic benefits to Beaver County.” ORVI finds numerous issues with the methodology of the study, but it’s worth noting that they didn’t have access to it: “Correspondence with two of the RMU authors revealed that the study is the property of Shell and, thus, could not be shared with the authors of this report,” they write. “The study was widely cited in media outlets in 2014, but does not appear online despite considerable search effort.”

ORVI was only able to examine the original study because “some assumptions and findings in the 2014 report were used as the basis to support assumptions made in the second report,” which is available online.

The ORVI report finds that RMU used “methodology that is not appropriate for long-term economic forecasting” and mischaracterized the type of plant that Shell was building, which “potentially led to unrealistically high estimates of economic benefits.” The study also used a 40-year timeline to assess the project’s benefits, which “implausibly assumes no global market shifts, no consumer attitude shifts around single-use plastics, no political and regulatory changes, and no need to re-invest capital for upkeep or modifications to the facility for four decades.”

Further, RMU “completely omits consideration of the costs of billions of dollars in public subsidy” and ignores Shell’s competitive economic advantage as a result of state incentives.

That’s not all: “Hidden costs, including environmental degradation, chronic healthcare costs to residents due to air pollution, and declining home values near a large plastics plant, as well as the cost of what else could have been done with some of the subsidy money, are not considered. Nor does the study consider the offsetting impact of Shell’s facility crowding out investment from other local businesses by driving up construction wages and material and land prices.”

The facility finally opened in November 2022, more than a decade after the deal was struck. “Now, just over one year since production officially began, the plant has been mired in problems. The facility exceeded its allotted pollution limits within months of operating and repeated flaring has deepened air quality and health concerns of Beaver County residents,” the report notes.

In May 2023, the state government found that since beginning operation, the factory had exceeded total emission limitations for gases including carbon monoxide, volatile organic compounds (VOCs), and hazardous air pollutants. Shell agreed to pay nearly $10 million in civil penalties; just two months earlier, the company had been approved to receive over $4.9 million in tax incentives for 2022.

“Furthermore,” the report continues, “the plant seems to have fallen short so far in generating the economic benefits promised to residents, as Beaver County continues to trail the state across most economic metrics.”

The plant’s underperformance and pollution are troubling. But those troubles are exacerbated by the fact that the state chose to dole out billions of dollars in tax credits and abatements. Even more galling is the fact that the state apparently justified its expenditure on the basis of bad economic studies funded by the company set to receive the benefits.

The post Study Funded by Shell Convinced Pennsylvania To Give Shell $1.6 Billion Tax Break appeared first on Reason.com.

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

New on the Short Circuit podcast: Two former Judge O’Scannlain clerks join the show to talk about a suspended progressive prosecutor and a preempted ban on gas stove piping.

• Bangor, Me. hospital employs five psychologists: two men (paid $90 and $95 per hour), and three women (paid around $50 per hour). The disparity was not based on any differences in seniority, shifts worked, or merit increase system; the hospital contends it’s based on market factors, whereas one of the women says it’s plain old sex discrimination. Hospital: Maine law requires the woman prove that we intended to discriminate, which you should ask Maine’s high court about. First Circuit: We can figure it out ourselves, and there’s no such requirement. Liability plus treble damages affirmed. Dissent: No Maine court has construed this law, and the majority’s interpretation of it makes it a far more sweeping prohibition than the federal counterpart or most pay-equity statutes nationwide.
• When an attorney trusts ChatGPT for case law, she ends up citing a legal phantom. Second Circuit: Sends her to the Grievance Panel with a lesson—AI may pass the Turing test, but it hasn’t passed the bar. (Summarized by ChatGPT.)
• Male college student goes to Paris and has a disputed encounter with a female classmate who was undisputedly intoxicated. She claims sexual assault. He’s brought up on charges at a university discipline hearing and suspended. He later claims that she defamed him in an anonymous tweet. He then has another disputed encounter, this time stateside, with another female. Which leads to another discipline hearing and expulsion. Title IX violation? District court: Even taking the male student’s version of the facts as true, case dismissed. Second Circuit: No evidence of gender bias, so affirmed. Dissent: An inexplicable decision is in itself bias.
• Buffalo. N.Y. cops driving at night without their headlights nearly hit two women crossing the street. An onlooker yells: “turn your lights on, asshole.” Instead, the officers stop, argue with the onlooker, and give him a ticket for making excessive noise. Onlooker sues, including under the First and Fourth Amendments. District court: You didn’t know they were cops when you yelled, so it’s not First Amendment-protected speech. Case dismissed. Second Circuit: Yelling at a dangerous driver to turn on his lights seems pretty free-speech-ey to us (Ed. note: and tame language by Empire State standards), and we’re dubious there was probable cause to treat that speech as unreasonable noise pollution. To a jury this must go.
• Pullman abstention allows federal district courts to refrain from deciding federal claims until complicated state-law issues are resolved in state court. But, reminds the Fourth Circuit, district courts can’t do this without, like, identifying a state-law issue that would require abstention.
• “‘Close'”—your summarist’s father sometimes opines—”is only good enough for horseshoes and hand grenades.” And, evidently, SWAT raids in Lancaster, Tex., where a SWAT team tasked with raiding 573 8th Street erroneously approached 583 8th Street before course-correcting and smash-bang-crashing through 593 8th Street. Fifth Circuit: The SWAT commander at least tried to identify the right house. Qualified immunity. Dissent: Did the commander not compare the wheelchair ramp in front of the 593 address with the obvious lack of a wheelchair ramp in his photo of the 573 address?
• Missouri prisoner alleges that his arms and legs were twice shackled to a restraint bench in a “sitting hog tie” for hours, causing bleeding and pain, and making him urinate himself. He sues the prison warden, among others, for violating the Eighth Amendment. Eighth Circuit: The only allegations against the warden personally are that she allowed a policy of using restraint benches, and that is not unconstitutional on its own. Qualified immunity. Dissent: What’s unconstitutional isn’t restraint in the abstract, but that the warden allegedly allows unnecessary forceful restraint.
• “When Reed blocked Felts on Twitter, he executed a final municipal policy in his area of the City’s business” is definitely a clause you can write in 2024, as the Eighth Circuit does here, but it’s not a clause that should make anybody involved feel good about their life choices.
• Shortly after learning from a fellow officer that his girlfriend had filed a confidential complaint against him for domestic violence, Clovis, Calif. officer brutally sexually and physically assaults her. Can the girlfriend sue the fellow officer? Ninth Circuit: “The danger was obvious.” But not so obvious that every reasonable officer would have known not to divulge such reports to an abuser. Qualified immunity. Going forward, though, officers are now on notice not to do that. Concurrence: The “Frankenstein’s monster-like” state-created danger exception (to the normal rule that gov’t officials can’t be liable for violence by committed private parties) is very wrong and bad.
• Oregon inmates sue the state’s governor and the director of the state’s health authority. Allegation: You prioritized vaccines for prison guards over vaccines for prison inmates, which violated the Cruel and Unusual Punishments Clause. Ninth Circuit: Under the Public Readiness and Emergency Preparedness Act, the governor and the health director have immunity from suits about their COVID-19 countermeasures.
• Aurora, Colo. teen uses mobile app to advertise used car for sale, murders the couple who show up to buy it, posts selfies with their cash on social media. (He gets two life sentences.) Can the couple’s estates sue the app? Tenth Circuit: Dismissal affirmed.
• And in en banc news, the Fifth Circuit will reconsider its decision refusing to dissolve a 1992 consent decree that reapportioned Louisiana’s supreme court districts to create a majority Black district. The state argues that the purposes of the 30-year-old decree have been fulfilled. The panel disagreed, holding—over a dissent—that the decree must remain in place until the “vestiges of past discrimination [have] been eliminated to the extent practicable.”
• And in more en banc news, the Eighth Circuit will not reconsider its decision that Section 2 of the Voting Rights Act does not confer a private right of action. As the dissent to the original panel opinion pointed out, that’s a bit surprising considering that federal courts have resolved hundreds of such cases, including one that resulted in the 1992 consent decree at issue in the Fifth Circuit case mentioned in the previous summary, which made it all the way to the U.S. Supreme Court.
• And in further en banc news, the Ninth Circuit will not reconsider its decision that a district court abused its discretion when it excluded plaintiff’s expert testimony on coerced confessions. Ten judges dissent from denial, arguing that the ruling creates a circuit split and a virtually per se rule that expert testimony be admitted in any lawsuit alleging coerced confession.
• And in unusual en banc news, the Tenth Circuit has decided following panel argument that, rather than issue a panel opinion, it will sit en banc to decide in the first instance whether a pretrial detainee’s Sixth Amendment rights were violated when the United States Attorney’s Office obtained a recording of a phone conversation with his attorney (see trial court ruling here). Far from an isolated incident, the office collected more than 1,400 attorney-client communications over a 7-year period—spawning sprawling consolidated litigation—and was previously held in contempt for failing to cooperate with a special master’s investigation into the scandal.

Partial victory! Way back in 2017, Dottie Rivera sued Pottstown, Penn. over its rental-inspection ordinance, which allowed code enforcement officials to enter renters’ homes without any notice or any sort of individualized suspicion of a violation. They’d just show up at the door and force their way in. But last month, a state trial court finally ruled that the Pennsylvania Constitution requires notice and a hearing before the execution of a search warrant. Sadly, however, the court did not require officials to actually present any evidence of a violation when seeking such a warrant. To the appeals court! Click here to learn more.

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

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The next general-election presidential poll you see will almost certainly be inaccurate.

Not because today’s projected percentages for President Joe Biden and former president Donald Trump won’t match what goes down in November; that’s a near-certainty. But rather, because the majority of polls right now list just those two candidates, in a voter-disillusioned year where most states’ ballots will feature at least five, maybe six.

And we’re not just talking about repeat randos like Rocky De La Fuente, either—independent Robert F. Kennedy Jr., with by far the highest favorability ratings in the race, has consistently polled higher than any nontraditional presidential candidate since Ross Perot in 1992. The centrist 501(c)(4) nonprofit No Labels, which is busy racking up ballot access in preparation for a post-Super Tuesday decision about whether to enter the fray, has been eyeing such nationally known figures as Sen. Joe Manchin (D–W.Va.) and former New Jersey Gov. Chris Christie.

Jill Stein, with more name recognition than any Green candidate since Ralph Nader, is again seeking the nomination of a party confident about improving on its 30 ballot lines from 2020. And the Libertarian Party (L.P.) may have lesser-known presidential candidates running thus far but is riding a three-election streak of third-place finishes, enjoys a large lead in third party registration, and expects to be on the ballot in 48 states. “I think that 47 would be a failure,” said Libertarian National Chair Angela McArdle.

When it comes to ballot access, an election-year February is a lot like spring training in Major League Baseball—every team predicts a pennant, players are in the best shape of their lives, etc. And the timeline for frequently onerous and always arbitrary state-by-state criteria is confusing enough to render much of the discussion about potential third party effects speculative, even conspiratorial.

What we do know is this: As of January 26, according to the indispensable Ballot Access News, the L.P. was on the ballot in 35 states, the Green Party 19, No Labels 12 (that number is now 14), the Constitution Party 12, and RFK Jr. just one. For the three holdover parties, those numbers represent slight declines from where they were four years ago.

This does not remotely mean that Kennedy will lag behind the Constitution Party, whose 2020 nominee, Don Blankenship, ended up on 18 ballots and received just 0.04 percent of the vote. It instead means that pre-existing political parties are pre-qualified for certain states based on past performance and that the deadlines for every state except Utah (which will have at least a half-dozen names on the ballot, including Kennedy’s) are in the future, beginning with North Carolina on May 18.

“We won’t really know anything in February much,” Ballot Access News Editor Richard Winger says. “You’ll have to wait ’til March.”

RFK Jr. is sitting on dollar amounts that all the other long-toiling third parties can only dream about. Federal Election Commission reports released this week showed the Kennedy campaign closing 2023 with $5.4 million cash in hand, while his biggest supporting super PAC, American Values, ended the year with $14.8 million in the bank. Such money can go a long way in paying for petitioners in the three dozen or so states where independent candidates need to present 10,000 or fewer valid signatures to get on the ballot.

The Kennedy campaign—whose ballot access page is the niftiest in the biz—effectively reduced its signature requirements by a whopping quarter-million voters in mid-January, by announcing the formation of the We the People Party in five states (California, Delaware, Hawaii, Mississippi, and North Carolina), as well as the Texas Independent Party. In some states, like California, independent candidates have a much larger signature-gathering requirement than political parties (219,403 to an estimated 75,000, according to Ballot Access News); in others, such as Idaho, the ratio is reversed: just 1,000 for independents, 17,000 for parties.

“It’s a heavy lift,” Kennedy Press Secretary Stefanie Spear says. “Every state has their own rules, and some are easier than others….The Kennedy campaign is up to the task.” Spear, who is confident that RFK Jr. will be on the ballot “in all 50 states and the District of Columbia,” blamed the two-party system for making competitors spend a disproportionate amount of their time jumping through those procedural hoops. “Ballot access is the name of the game right now,” she says.

Richard Winger, for one, thinks that 50-state access for Kennedy is achievable, given the way the campaign has approached the problem to date, including having volunteers petition outside polling places during the New Hampshire primaries and exceeding the needed 3,000 signatures. “I think he can probably do it,” Winger says. “I was impressed that he got on in New Hampshire in one day.”

The two biggest ballot roadblocks for non-Democratic/Republican presidential candidates are in two of the country’s three largest progressive-run states: New York and Illinois. “There are the two problem-child states right now,” the L.P.’s McArdle says.

New York in 2019 moved up its petitioning deadline from August to May, then in 2020 jacked up the threshold for third parties to maintain their ballot status from 50,000 votes in the previous gubernatorial or presidential election to 130,000, or 2 percent of the vote. The upshot? “We only have six weeks to gather 45,000 verified signatures,” says Green Party Ballot Access Committee Co-Chair Tony Ndege. “So that means we’re really going to have to shoot for over 60,000, really close to the 70,000. And that’s a really tall order. Very few parties, and almost no one without millions of dollars, have been able to achieve that.”

Ndege, like many people who work in these trenches, expresses something close to wonder when talking about the volume of challenges. “It’s just insane,” he said. “You can spend four years studying it, nothing but that, and it’s still very difficult, and it always changes too, because that’s how politics works.” Yet he’s bullish for the Greens this year. “We’re definitely far ahead of where we were in 2020,” he says, predicting that the party will “absolutely” clear that election’s 30 ballot-qualified states, and is pushing toward the goal of matching 2016’s 45.

The biggest wild card in the third party/independent space right now is No Labels, since there is still no indication whether, let alone how, the problem-solving centrists will compete against Trump and Biden. Amid a flurry of lawsuits and other legal maneuvers, the organization is giving itself until March to make a decision, and then (if the answer is “yes”) rush to select a ticket.

The comparative lateness of those decisions will keep the organization from obtaining clean ballot access everywhere. But still, says No Labels Chief Strategist Ryan Clancy, the group is on target to be on the ballot in 32 states.

“The reason for us to get 32,” Clancy says, “is there’s 18 states where they fall into one of two categories: Either one, you need to have a named candidate; or two, the threshold for a candidate is just much lower than a group like No Labels. So for example, a state might require No Labels to get 30,000 signatures, whereas a candidate would only have to get 3,000….So the way this would work is, in the end, No Labels will get 32. If we offer our ballot line to a ticket, the campaign itself would be responsible for getting those final 18. The good news, though, is we are absolutely ahead of schedule, relative to basically anybody else historically. Just for context, Ross Perot at this point in 1992 hadn’t even started getting signatures, and he ended up on all 50 states by September. So we’re exactly where we need to be.”

The Green Party, too, will be looking to fill ballot gaps with individual exertions from their eventual nominee.

Because of the group’s comparatively large war chest and potentially higher-profile candidates, No Labels has already attracted a nearly vicious level of interest from political professionals looking to remove obstacles from the reelection of Joe Biden.

“Through every channel we have, to their donors, their friends, the press, everyone — everyone — should send the message: If you have one fingernail clipping of a skeleton in your closet, we will find it,” a participant in a December anti–No Labels strategy session attended by the likes of Move On  and The Lincoln Project said, according to Semafor. “If you think you were vetted when you ran for governor, you’re insane. That was nothing. We are going to come at you with every gun we can possibly find. We did not do that with Jill Stein or Gary Johnson, we should have, and we will not make that mistake again.”

Clancy, who used to be a speechwriter for Biden, said he has been surprised by the vitriol. “Look, I’m not naive. I didn’t expect either party would welcome us with open arms,” he says. “But the depth of the cynicism and hypocrisy has surprised me. Because if you listen to the groups that are coming after us,…they all wrap themselves in the banner of protecting democracy, saving our republic. So it’s all this high-minded B.S., and yet what they’re really doing is just the most bare-knuckled, ruthless things they can. Not just the lawfare kind of stuff…but threatening donors, candidates.”

While No Labels deliberates, the main public third-party focus is likely to remain on Kennedy, which, along with some shared policy interests, is one reason that some L.P. officials are nurturing relationships with the independent, including inviting him (along with Cornel West) to the California Libertarian Party convention in late February.

CNN’s Michael Smerconish set off a round of headlines and intra-Libertarian discussion last week by asking a mostly demurring RFK Jr. about his interest in seeking the L.P. nomination in late May. It would be “a big controversy,” McArdle says, “but it would definitely save us on ballot access.”

“We can go with Bobby Kennedy and get 50-state ballot access very easily, or we can stick very closely to our principles, because he does deviate from our platform in a handful of areas at least,” McArdle continues. “But I want us to be sober about the decision we make, conscious of it, and to not have regrets and sour grapes.”

Asked if a potential L.P. nomination factors into the Kennedy campaign’s ballot-access deliberations, Press Secretary Spear said, “No.”

The post Presidential Ballot Will Be Crowded With Third Party Candidates appeared first on Reason.com.

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