Category: reason

With Matt Welch out, Peter Suderman hosts John Osterhoudt, Katherine Mangu-Ward, and Nick Gillespie on their thoughts on Russia’s invasion of Ukraine and the reactions to it across the political spectrum.

Discussed in this show:

0:34: Russia’s invasion of Ukraine

35:12: Blue state’s rolling back mask mandates

50:16: Weekly listener question: Hi Roundtable! Misery loves company. As such, I would love to find like-minded liberty-loving individuals to commiserate within my very blue Commonwealth of Massachusetts. Of course, I do my share of screaming into the Twitter void (@nwwong) but want to build out my network of local libertarians to discuss more specific issues, how to tackle them, and even possibly launch a campaign for a local
office. I’m hesitant to join the party, as I believe it would make things harder if I ever decided to run for a seat in MA; so what is another way to find friends short of “Tinder for Liberals”? Thanks, and keep up the great work!

This week’s links:

• “Why Ukraine Is Different,” by David Leonhardt
• “Florida governor signs sweeping laws against vaccine, mask mandates,” by Alex Pickett
• “This Texas Town Rejected Stimulus Money to Avoid Vaccine Mandates,” by John Osterhoudt (Video)
• “Artist Ai WeiWei Warns of Chinese and American Authoritarianism,” by Meredith Bragg (Video)
• “Populist Flamethrowers Rock Media” by Neal Rothschild and Sara Fischer

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

Today’s sponsors:

The post What Ukraine and Joe Rogan Have in Common appeared first on Reason.com.

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Tensions are escalating rapidly on the Ukrainian border, with Russian President Vladimir Putin announcing today that he would send troops into eastern Ukraine. The international community responded swiftly. Germany has put the Nord Stream 2 pipeline on hold, cutting off its supply of Russian gas. Biden administration officials are calling Putin’s move an “invasion” and are considering imposing harsh sanctions on Russia.

Beyond the short-term chaos, however, are big questions about humanitarian fallout—especially the potential for a refugee crisis. U.S. officials estimate that between 1 and 5 million Ukrainians could leave their country after a Russian invasion. Ukrainians enjoy visa-free travel to the European Union, making member nations likely destinations for those fleeing Ukraine. Poland accepted many Ukrainian migrants after Russia invaded Crimea in 2014, a move that Polish officials say they are willing to repeat if necessary.

Though farther geographically from the ailing Ukraine, the U.S. can take a number of immigration-based steps to protect Ukrainians now and in the future.

The U.S. should ensure the safety of the Ukrainians who are already present on American soil. The Niskanen Center has proposed that the Biden administration designate Ukrainians as eligible for temporary protected status (TPS) and special student relief (SSR). TPS is a Department of Homeland Security (DHS) designation that prevents nationals of certain countries from being deported if they cannot return home safely. DHS reserves TPS for countries facing temporary destabilizing effects, such as “ongoing armed conflict,” “an environmental disaster,” or “an epidemic.” Similarly, SSR helps protect foreign nationals who are in the U.S. on F-1 student visas in the event of “emergent circumstances.”

These are immediate fixes that do not involve drastic intake of migrants or alteration of the U.S. immigration infrastructure. Ideally, the U.S. would also expand its historical intake trend and offer protection to greater numbers of fleeing Ukrainians. Attorney Andrew N. Klokiw writes in the Texas Law Review that Ukrainians “hold a unique distinction as one of the only non-Western European ethnicities to immigrate to the United States continuously and in significant numbers from the late 1870s to the present day.” Between 2009 and 2018, Klokiw notes that Ukrainians accounted for the largest share of overall visa admissions from Europe. There is a longstanding precedent for welcoming Ukrainians to the U.S. and a strong Ukrainian presence in many American communities. (Whether those ties will compel the Biden administration to welcome Ukrainian refugees, however, remains to be seen.)

Over 1 million Ukrainians call the U.S. home. As conditions worsen in Ukraine, the U.S. should ensure that it is prepared to accept Ukrainians coming here to join their relatives on family-based visas. As of November 2021, the State Department reported that some 4 million people were stuck abroad in the family-based immigration backlog. The U.S. let 140,000 family-based green cards go to waste in fiscal year 2021, amounting to 62 percent of the total cap. Backlogs are hobbling visa delegation across the entire immigration system, and without reform, they will keep vulnerable people in harm’s way. Ukrainians with U.S.-based relatives stand to benefit greatly from quicker processing times.

Americans largely do not crave conflict with Russia. It is unclear what any skirmish between the U.S. and Russia would look like, much less what it would accomplish. The Biden administration should focus on approaches firmly in its control—namely, protecting U.S.-based Ukrainians from removal to their war-torn home country and preparing for a potential refugee crisis.

The post If You Want To Help Ukrainians, Welcome Them to the U.S. appeared first on Reason.com.

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After a collection of questionable stock trades by members of Congress at the beginning of the pandemic, and similar trading scandals in the federal judiciary and the Federal Reserve, there is growing momentum to ban members of Congress from trading or even holding individual stocks while in office. Recent polls show wide support from the American public to impose limits on holding individual stocks, and both Republicans and Democrats have introduced bills with different frameworks for limiting lawmakers’ financial holdings. Even House Speaker Nancy Pelosi (D–Calif.)—who has historically opposed such a bill—has recently signaled her willingness to advance such legislation.

A leading argument in favor of banning congressional stock ownership is that such a ban is needed to prevent legislators from insider trading. This is wrong because restricting Congressional trading not only has the potential to harm markets, but a focus on insider trading obscures the broader question of how to address lawmakers who may use their positions for personal, financial gain.

Illegal insider trading is when someone trades a stock misusing non-public information that impacts the stock’s value. The STOCK Act, passed in 2012, made clear that trading on non-public information derived from a member of Congress’s official position is an insider trading violation. The Securities and Exchange Commission considers insider trading to “undermine investor confidence in the fairness and integrity of the securities markets.” 

Those who support limits on congressional investments point to well-timed trades and research showing that members of Congress outperform normal people in the stock market. That research tends to draw on trading data from before the STOCK Act, and some studies, including this recent one by the National Bureau of Economic Research, have found no particular outsized returns for lawmakers. Although voters look poorly on elected representatives who may be making unfair gains, it’s a leap to conclude from the body of research that unlawful insider trading is widespread on Capitol Hill. 

Prohibitions on insider trading already harm market efficiency by preventing a stock’s price from reflecting all of the information known about the stock. A broad-based ban on stock trading or ownership would add to that market inefficiency by preventing lawmakers from contributing information that allows the markets to engage in price discovery. Because the type of information that members of Congress are privy to relates not just to individual companies, but to entire industries and the whole economy, such information should actually be absorbed quickly into the market—particularly when doing so does not violate existing insider trading law—rather than kept out.

The fact that prosecuting insider trading violations by members of Congress is challenging, and lawmakers from both parties have a poor record in complying with trade reporting requirements, does not mean that a prophylactic ban on holding individual stocks is a good idea or a necessary one.

Justifying a stock-ownership ban based on insider trading rules also makes little sense. The issue is not with maintaining investor confidence in the market—the stated reason for insider trading rules. The issue is with maintaining voter confidence in their elected officials—two very different issues. The more apt question when considering limitations on congressional financial holdings is whether, and to what degree, members of Congress should be permitted to gain personal financial advantage from their positions.

The question, properly framed, focuses on potential conflicts of interest faced by members of Congress. Uniquely positioned members of Congress have information that may impact the value of particular stocks while also having the ability to impact the value of particular stock by legislating, by calling for investigations, or by otherwise exerting their political influence. 

That means potential conflicts of interest can exist not only in a member’s individual stock ownership, but also in fund investments, crypto holdings, or business interests of lawmakers, their families, or their staff. Managing these potential conflicts of interest is a complex task, asking lawmakers and voters alike to determine the proper balance between lawmakers’ personal financial interests, their stake in particular issues, and their ability to represent their constituents. At best, focusing only on stock ownership and trading provides an incomplete picture. 

Insider trading law has a reputation for lacking clarity and generating confusion. It would be a mistake to add to that confusion by attempting to justify a ban on congressional stock ownership in the name of preventing illegal insider trading, particularly when the motivation for such restrictions is protecting Congress’s integrity, not the market’s. Instead, potential solutions should be evaluated against the full range of financial conflicts of interest that members of Congress face.

The post Banning Lawmakers From Trading Stocks Won't Fix Congress appeared first on Reason.com.

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The three white men who killed Ahmaud Arbery, a 25-year-old black jogger, after chasing him in pickup trucks through a suburban neighborhood near Brunswick, Georgia, were convicted today of federal “hate crimes.” The jury concluded that Gregory McMichael, who initiated the chase; his son, Travis McMichael, who killed Arbery with a shotgun; and William Bryan, who joined the chase in his own pickup truck, had pursued and assaulted Arbery “because of” his “race and color.”

That violation of 18 USC 245 is punishable by life in prison. But since all three defendants are already serving life sentences in state prison for murdering Arbery, the federal convictions won’t have any practical effect on their punishment. Gregory and Travis McMichael are not eligible for parole, and Bryan won’t be eligible until his early 80s, assuming he is still alive. The point of this second trial was to “send the message that the Justice Department won’t tolerate this type of racist hatred,” as a former federal prosecutor put it in an interview with The Washington Post.

The prosecution presented evidence that the defendants had repeatedly expressed racist sentiments in the months and years before they killed Arbery. Without contradicting that evidence, the defense argued that the three men were motivated not by racism but by their suspicion that Arbery, who had repeatedly visited a house under construction in the neighborhood, was engaged in criminal activity.

The jury evidently surmised that Travis McMichael et al. would not have viewed Arbery as a criminal suspect if he had been white. Assuming that’s true, they responded to him the way they did “because of” his race. But since the opinions they had expressed were crucial to the prosecution’s case, it is equally true that the defendants were convicted “because of” their benighted beliefs. Condemning them as bigots was the whole point of this exercise, since they had already been condemned (and punished) as murderers.

According to the Supreme Court, this second, symbolic prosecution did not amount to double jeopardy, because the state and federal crimes, defined by two different “sovereigns,” are not “the same offense.” The Court also has held that hate crime prosecutions, although they frequently impose additional punishment based on constitutionally protected speech, are consistent with the First Amendment.

Even if you buy both of those arguments, you may wonder where Congress gets the authority to federalize state crimes such as assault and murder. The main constitutional rationale for 18 USC 245, which focuses on interference with the use of public facilities (such as the street on which Arbery was jogging), is that the 13th Amendment empowered Congress to address “the relics, badges and incidents of slavery.” The 13th Amendment also supposedly authorizes 18 USC 249, a more recent statute that covers bodily injury inflicted “because of” the victim’s “actual or perceived race, color, religion, or national origin.”

While the racism expressed by Arbery’s killers is historically related to the racism underlying slavery, neither statute requires a white perpetrator or a black victim. Lemrick Nelson, a black man who fatally stabbed Yankel Rosenbaum, a Hasidic Jew, during the 1991 Crown Heights riot, was convicted under 18 USC 245. Tiffany Harris, a black woman who was arrested in 2020 for slapping three Jewish women in the same Brooklyn neighborhood where Nelson killed Rosenbaum, was charged with violating 18 USC 249. In cases like these, the connection to “the relics, badges and incidents of slavery” is hard to perceive even if you squint.

Nelson challenged his federal conviction, arguing (among other things) that Congress had exceeded its authority under the 13th Amendment. In a 2002 decision rejecting Nelson’s appeal, the U.S. Court of Appeals for the 2nd Circuit noted that the amendment’s prohibition of slavery and involuntary servitude is race-neutral. It added that “‘race’ as used in Thirteenth Amendment jurisprudence is a term of art, whose meaning is not limited by today’s usage.” When the 13th Amendment was ratified, the 2nd Circuit noted, Jews were commonly viewed as a distinct race.

As Case Western Reserve law professor William Carter noted in a 2007 law review article, there are several problems with this analysis. “As the court acknowledged, Jews, in contemporary society, are not thought to be a separate race,” Carter wrote. “Accordingly, even if the Thirteenth Amendment protects all racial groups, the court had to determine whether the Thirteenth Amendment protects non-racial classes.”

Carter also noted that “race-based violence is not literal slavery or involuntary servitude.” Since “there was no allegation that Rosenbaum’s assailants intended to subject him to literal enslavement or involuntary servitude, the court had to analyze whether religiously motivated violence against a Jewish person amounted to a badge or incident of slavery,” he wrote. “The fact that the Amendment’s prohibition of actual enslavement is race-neutral does not necessarily mean that its prohibition of the lingering effects of slavery is also race-neutral.”

The notion that an amendment banning slavery authorizes the federal prosecution of black people who assault Jews seems more than a little far-fetched. Also counterintuitive: the idea that repeatedly prosecuting people for the same conduct is consistent with the Fifth Amendment’s ban on double jeopardy. Reasonable people likewise might question the assumption that the Justice Department should use the criminal justice system to make a moral statement about people’s beliefs, as opposed to punishing them for their criminal conduct—especially when state courts have already accomplished the latter objective. Today’s verdict reminds us of all these riddles, but it certainly does not solve them.

The post The Verdict Against Ahmaud Arbery's Killers Highlights the Problems With Federal Hate Crime Statutes appeared first on Reason.com.

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The Supreme Court will finally be tackling the question of whether a public accommodation law can compel a business owner to produce messages that violate their personal beliefs as part of anti-discrimination protections.

Today the Supreme Court agreed to hear 303 Creative LLC v. Elenis. Lorie Smith owns and runs 303 Creative, a graphic website design firm based in Colorado. Smith planned to design and host sites for weddings, but she has religious objections to same-sex marriage and does not want to be forced to design and host sites for such weddings. This puts her at odds with Colorado’s Anti-Discrimination Act, which prohibits discrimination against LGBT customers.

Smith counters that she isn’t refusing to serve LGBT customers, but she “cannot create websites that promote messages contrary to her faith, such as messages that condone violence or promote sexual immorality, abortion, or same-sex marriage,” according to her petition to the Supreme Court. The United States Court of Appeals for the Tenth Circuit has taken the side of the Colorado Civil Rights Division and ruled that the law was being neutrally applied and not unconstitutionally vague or overbroad. Colorado could legally require Smith to design and host sites for gay weddings and could furthermore prohibit her from putting a message on her website stating that she would not due to her religious beliefs.

This case flows out of the Supreme Court’s 7-2 ruling Masterpiece Cakeshop v. Colorado Civil Rights Commission. It’s even from the same state. The Masterpiece Cakeshop case revolved around whether a baker could be forced to make a wedding cake for a gay couple. The Court ruled in the bakery’s favor but actually punted on the central free speech question. The Court ruled that the commission had not neutrally applied the law, and commissioners had made statements indicating they had a bias against Masterpiece Cakeshop owner Jack Phillips’ Christian beliefs.

Similarly, in a more recent case, Fulton v. Philadelphia, about whether a Catholic adoption agency could discriminate against gay couples, the Court dodged again. It ruled in favor of the adoption agency—not for religious freedom reasons, but because the law gave city officials discretion to grant exemptions, and therefore, it was not a neutrally applied law.

While the bakery and the adoption agency won these two cases, no precedent was established. The extent that the services of a baker, florist, photographer, and others were protected by the First Amendment and whether public accommodation laws could force businesses to provide their services for ceremonies over which they held moral objections remain legally muddled. Justice Neil Gorsuch noted in his opinion in the Fulton case, “these cases will keep coming until the Court musters the fortitude to supply an answer.”

Indeed, several businesses have raised further legal challenges. Now that the Supreme Court has taken up 303 Creative LLC. V. Elenis, we may finally get the precedent people are seeking. Smith is being represented by Alliance Defending Freedom, which also represented Phillips in the Masterpiece Cakeshop case.

The Cato Institute, joined by UCLA law professor Eugene Volokh (of The Volokh Conspiracy) and Southern Methodist University Dedman School of Law professor Dale Carpenter (also a contributor to The Volokh Conspiracy), have submitted an amicus curiae brief supporting Smith, urging the Court to find that Colorado’s anti-discrimination laws violate her First Amendment rights. The brief notes:

As the Tenth Circuit acknowledged, Smith’s creation of wedding sites is pure speech. Forcing her to create websites to which she objects is a speech compulsion. The law cannot force her to speak in this way unless the state can satisfy strict judicial scrutiny.

Declaring that a unique and customized product is irreplaceable and that therefore a requirement to provide it in the commercial marketplace is narrowly tailored, as the Tenth Circuit did, is to end free-speech protection for providers of expressive products. It erodes the ability of courts to invalidate applications of speech regulations where part of the government’s goal is to punish unpopular ideas rather than solely to protect consumers’ access to products.

That cannot be right as a matter of constitutional law. While providers of commercial services are certainly subject to state anti-discrimination obligations, their freedom of speech must remain protected.

In the orders today that the Supreme Court will hear the case, the Court narrowed down the questions in the case to a single issue: “Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.”

Do not expect some sort of broad ruling that would radically rethink anti-discrimination laws. Just two years ago Justice Gorsuch and Chief Justice John Roberts joined the Court’s more liberal justices in deciding that the Civil Rights Act of 1964’s anti-discrimination protections included gay and trans people. This is specifically and narrowly about the limits of mandating commercial speech that compromises the values of business owners.

The post Can a Web Designer Be Forced To Make Gay Wedding Pages? The Supreme Court Will Decide appeared first on Reason.com.

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