Category: reason

Not long after taking office, President Joe Biden released an executive order to fight climate change and called for evaluating the impact of environmental policies on the poor. Yet in a separate executive order, Biden affirmed his support for the 1920 Jones Act, a maritime law that harms both the environment and disadvantaged communities. It seems the residents of Hawaii, Puerto Rico, and Alaska are no match for an entrenched industry and union cronyism.

The Jones Act—technically the Merchant Marine Act of 1920—shields the American shipping industry from foreign competition by requiring that ships engaging in trade between multiple U.S. ports be made in America and owned and crewed by American citizens. Supporters say the Jones Act is necessary for national security, but research from the Cato Institute has shown the law’s biggest impact is driving up consumer prices for many Americans by forcing isolated states and territories to import necessities from other countries.

The cost of complying with the Jones Act encourages American businesses to transport goods between U.S. states on trains and trucks. In Europe, 40 percent of freight is moved by sea. Within the United States, that share is only 2 percent. Ships generally require less energy per mile and therefore produce less pollution.

The Jones Act pushes freight transportation onto highways across America, thereby increasing pollution and congestion. Ironically, the law has even led to a decline in the number of ships America builds domestically.

In other words, a small number of Americans benefit financially from the Jones Act at the expense of the rest of us. “Supporting the Jones Act is in direct contradiction of the Biden administration’s stated desire to both fight climate change and promote Puerto Rico’s economic recovery,” says Colin Grabow, a Cato policy analyst. “By dramatically raising the cost of domestic waterborne transport, the Jones Act discourages the use of this carbon-friendly means of transport while imposing a significant economic burden on an island that suffers from a painful 43 percent poverty rate.”

On the campaign trail, Biden and Pete Buttigieg, who has since become secretary of transportation, promised better representation for Puerto Rico. But because of the Jones Act, shipping a container from the continental U.S. to the island territory can cost twice as much as sending the same container to a nearby island nation, where Jones Act rules don’t apply. That’s not a recipe for lifting Puerto Rico out of poverty or helping it recover from the devastation caused by Hurricane Maria in 2017.

Biden’s embrace of this archaic law undercuts his economic, environmental, and transportation policy goals.

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The Yale Journal on Regulation  online symposium on Adam Cox and Cristina Rodriguez’s important new book, The President and Immigration Law, has now concluded with the authors’ response to the commentators and critics.

All of the contributions can be accessed here. My own essay praises the book and accepts much of the author’s analysis of the growth of executive power over immigration and its dangers. But, in assessing possible solutions for the problems they identify, I argue that the authors undervalue the importance of strengthening constitutional constraints on executive power, and making it easier for migrants to enter the United States legally.

In their thoughtful response, Cox and Rodriguez partly agree with my suggestions, but emphasize that neither the full elimination of constitutional double standards on immigration policy nor the adoption of a presumption of freedom of movement across national borders are likely to be fully realized, anytime soon, if ever.

I agree these ideals are unlikely to be fully realized anytime soon, and said as much in my initial contribution. But I also pointed out that there is a great deal of room for incremental progress on both fronts. Cox and Rodriguez’s own reform proposal of legalizing most of the current undocumented immigrant population and severely curbing detention and deportation is also unlikely to be fully implemented in the near future. For reasons noted in my contribution, strengthening judicial review and cutting back barriers to legal migration are essential components of any reform agenda, whether incremental or radical.

Indeed, failure to pursue the the former might even undercut many of the beneficial effects of the latter. If detention and deportation are more tightly constrained, White House hostile to immigration would have incentives to double down on using its discretionary authority to try to keep out migrants in the first place. If so, there may be little net reduction in executive power in this field and its undermining of the rule of law. For potential migrants, being barred to begin with can be just as bad or (in some cases) even worse than being deported after entry.

I previously also commented on Prof. Dan Farber’s outstanding contribution to the symposium, which focuses on the ways in which the current executive-dominated immigration regime undermines the rule of law.

In conclusion, I once again commend the authors on their outstanding book. The debate over these issues will surely continue.

 

 

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From In re Piland, decided by the Michigan Court of Appeals Thursday, in an opinion by Judge Michael J. Kelly, joined by Presiding Judge Thomas C. Cameron and Judge Kristen F. Kelly:

Respondents appeal … the orders terminating their parental rights to their children, MP, JP, and VP ….

On February 6, 2017, respondents’ third child, AP, was born at their home with the assistance of a midwife. Less than 20 hours later, on February 7, 2017, the midwife observed that AP was showing signs of jaundice on her face and chest. Concerned about the presence and severity of jaundice within 24 hours of AP’s birth, the midwife strongly emphasized to respondent-mother that the baby should be seen by a doctor. Respondent-mother refused, telling the midwife that “God makes no mistakes, our baby is fine.” Respondent-mother conferred with respondent-father and, together, they declined to seek medical care for AP. Multiple witnesses, including respondents, testified that respondents’ religious beliefs precluded them from seeking manmade medical care for themselves or for their children. Instead, respondents relied on faith-based or divine healing.

{At the time of AP’s death, respondents were part of two religious groups, Free Saints Assembly and Faith Tech Ministries. They testified that both groups supported divine healing, but noted that neither group prohibited a person from seeking manmade medical care. Rather, it was up to each individual to determine whether they would rely solely on divine healing or would utilize a combination of manmade and divine healing.} …

[T]hroughout the case, respondents continued to object to their children receiving medical care. One child went to the hospital for an apparent allergic reaction. He was prescribed an EpiPen, which respondents adamantly stated that they would not rely on even if he were showing signs of an allergic reaction. When another child broke his foot, respondent-mother told him that he did not have a broken bone because if he believed in and obeyed God, his bones would not break. Respondents also objected to the lifesaving medical treatment that VP received after she was removed from respondents care. The record reflects that, like AP, she was jaundiced within 24 hours of her birth. She was diagnosed with hemolytic disease of the infant. To treat it, she required seven days of phototherapy and required an exchange transfusion. Without the treatment she would have died. Even knowing that, respondents maintained that they would not have sought medical treatment for her. At trial, respondents testified that under no circumstances would they seek manmade medical care for their children.

AP died, and the state sought to terminate the parents’ rights to the other three children (two older ones, who were under seven years old, and VP, who was born about 1½ years later). The parents wanted to have the jury instructed under a Michigan statute, MCL 722.634, that provides that:

A parent or guardian legitimately practicing his religious beliefs who thereby does not provide specified medical treatment for a child, for that reason alone shall not be considered a negligent parent or guardian.

(Termination decisions are apparently made by a jury under Michigan law, though to my knowledge most states don’t use a jury for that; and the statute does generally apply to child protection cases.)

The trial court had held that the statute didn’t apply in this case, because of the word “legitimately”:

Now, the Court believes that for a religious belief to be legitimate, it must conform to the law or rules…. [T]here needs to be at least some recognized standards or acceptable, uh—recognized or acceptable standards that we are gaging those relief—beliefs against to determine whether or not those beliefs are legitimate.

The legislature, in my estimation, did not intend to provide this exception to all strongly held beliefs. They also didn’t intend to provide this exception to all strongly held religious beliefs, but only those beliefs that were in accordance with practicing a religion, uh, or religious rules or laws, or in—in conformance with acceptable religious standards, and acceptable religious practices.

Individual acts of faith or following subjected—subjective individualized beliefs do not constitute legitimately practicing your religious beliefs….

The Court is not, um, ruling in this instance that the [respondents’] faith is not heartfelt or dis—dishonest. Uh, they have been steadfast an—and earnest in their beliefs. However, those beliefs are not supported by any law, doctrine, or cannon of any religion. They are religious in nature, but that does not rise to the level of a legitimate practicing of a religious belief.

Their own assembly, or sect, or—or group, made it clear that medical treatment is not prohibited by the tenants of their faith. And the [respondents] have taken scripture and have personally interpreted in this way, which is not covered by MCL 722.634.

The Court, therefore, believes that the proffered instruction based upon the statute is, therefore, not warranted. [Emphasis added.]

But the court of appeals disagreed:

We conclude that the trial court’s view that the word “legitimately” means that a parent or guardian’s religious beliefs must be legitimate is unconstitutional and must be rejected….

The trial court’s interpretation of the word “legitimately,” as used in MCL 722.634, is that the religious beliefs being practiced must be legitimate. And, that, in order to be legitimate, those beliefs had to be part of the doctrine or tenants of a religion as opposed to a parent or guardian’s subjective interpretation of scriptures. The trial court’s interpretation, however, renders the statute unconstitutional. It is well-established that “government has no role in deciding or even suggesting whether the religious ground” for a person’s actions “is legitimate or illegitimate.” Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Com’n (2018). Instead, in order “to respect the [United States] Constitution’s guarantee of free exercise [of religion], [the government] cannot … act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices.” Id. See also Church of the Kukumi Babalu Aye, Inc. v. City of Hialeah (1993) (stating that “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.”). As our Supreme Court explained in People v. DeJonge (Mich. 1993):

This Court must accept a worshiper’s good-faith characterization that its activity is grounded in religious belief because “[i]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds.” Hernandez v. Comm’r of Internal Revenue  (1989). This must be so because “[m]en may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to others.” [U.S. v.] Ballard (1944).

Nor is religious orthodoxy necessary to obtain the protection of the Free Exercise Clause. Religious belief and conduct need not be endorsed or mandated by a religious organization to be protected. Indeed, because popular religious beliefs are rarely threatened by elected legislators, the Free Exercise Clause’s major benefactors are religious minorities or dissidents whose beliefs and worship are suppressed or shunned by the majority. To hold otherwise would be to deny that “Religion … must be left to the conviction and conscience of every man….” [Footnotes omitted.]

See also Frazee v. Illinois Dep’t of Employment Security  (1989) (noting that “the Free Exercise Clause does not demand adherence to a tenet or dogma of an established religious sect,” and rejecting as improper the state’s contention that, although the appellant’s conviction was religious, it was “inadequate because it was not claimed to represent a tenet of a religious organization of which he was a member.”). As is clear from the above authority, the trial court improperly held that respondents’ religious beliefs lacked legitimacy solely because their beliefs were not represented by a tenet or rule of a religious organization.

We also hold that the trial court’s interpretation is inconsistent with the statutory language…. According to Merriam-Webster’s Collegiate Dictionary (11th ed.), “legitimate” is defined as follows:

1 a: lawfully begotten … 2: being exactly as proposed: neither spurious or false … 3 a: accordant with law or established legal forms or requirements < a ~ government b: ruling by or based on the strict principle of hereditary right < a ~ king 4: conforming to recognized principles or accepted rules and standards … 5: relating to plays acted by professional actors but not including revues, burlesque, or some forms of musical comedy.

The trial court relied on the third definition because the court was considering the meaning of the word “legitimate” as it would be used to modify religious beliefs formed by association with a religious organization. That makes sense as that definition clearly relates to the structure of organizations, such as governments and monarchies. However, the word “legitimately” modifies the word “practicing.” Therefore, by interpreting the word in connection with “religious beliefs” as opposed to the practice of religious beliefs, the trial court misconstrued the statute.

The correct inquiry requires consideration of what it means to be “legitimately practicing” a religious belief. In relevant part, to “practice” is to “carry out, apply < ~ what you preach >” Merriam-Webster’s Collegiate Dictionary (11th ed.). Thus, the only definition of “legitimate” that makes sense in the context that it is used is the second definition, i.e., “being exactly as proposed: neither spurious or false.” Together, then, in order to be “legitimately practicing” his or her religious beliefs, the parent or guardian must have been actually practicing his or her religious beliefs at the time that he or she did not provide his or her child with specified medical treatment. And, if a rational view of the evidence supports that finding, an instruction in accordance with MCL 722.634 is required.

The record is replete with testimony showing that respondents were actually, i.e., legitimately, practicing their religious beliefs when they did not seek medical treatment for AP. [Factual details omitted. -EV]

{By so holding, we are not depriving the jury from making its own determination as to whether respondents were legitimately practicing their religious beliefs. The record plainly indicates that they sought medical treatment for themselves, including once when respondent-father went to urgent care to have glass shards removed from his arm and to have the injury “glued” and bandaged. Both respondents also rely on prescription eyewear. Finally, for the births of their first three children, respondents sought and consented to treatment by a midwife. Although they rejected some treatment options, they consented to others, including routine checks of respondent-mother’s blood pressure and evaluation of the fetal heartbeat. They also had both of their older children circumcised by a medical professional. A jury could very well conclude that respondents’ decision to provide themselves with medical care, but to deny it to their children is evidence that their religious beliefs were not being legitimately practiced. The court and the lawyers, however, should take care not to suggest that the legitimacy of respondents’ religious beliefs is a matter for consideration by the jury.}

As an alternative basis for its decision denying the request for a jury instruction based on MCL 722.634, the trial court sua sponte held that the statute was unconstitutional because it impermissibly interfered with AP’s constitutional right to life. We disagree. Notably, MCL 722.634 does not preclude consideration of the parent or guardian’s decision to not provide specified medical treatment. Instead, the statute only precludes that from being the only, i.e., the sole, reason for determining that the parent or guardian is negligent.

Therefore, the jury can consider the decision or failure to provide specified medical treatment in connection with other evidence showing that the parent or guardian is a negligent parent or guardian. Additionally, MCL 722.634 expressly states that a court is not precluded “from ordering the provision of medical services or nonmedical remedial services recognized by state law to a child where the child’s health requires it nor does it abrogate the responsibility of a person required to report child abuse or neglect.” Thus, although the statute offers some protection to a parent or guardian legitimately practicing his or her religious beliefs, it nevertheless balances the state’s need to intercede to protect the child’s health.

Consequently, the statute only precludes consideration of the failure to provide medical support from being the only consideration, permits the state to intervene to protect the child’s health, and it does not exempt mandatory reporters from reporting abuse or neglect, so the child’s health and safety is not unprotected. Again, MCL 722.634 is not an absolute exception. A jury instructed in accordance with MCL 722.634 is not required to return a finding of no jurisdiction….

I think the analysis is correct; the Religion Clauses preclude the government, including courts, from preferring beliefs that are endorsed by the established rules of a religious organization differently from beliefs that are the product of individual moral judgment. We have an individualistic law of religious exemptions, rather than a denominational-hierarchy-focused law. (One might view it, figuratively, as a Protestant law rather than a Catholic law.)

The Michigan statute may well be a bad idea, and I think that, absent such a statute, removing children from the care of parents who refuse to provide medical care is constitutional. Under the Free Exercise Clause, such a rule would be neutral and generally applicable and thus valid, I think. And even under state statutes or constitutional provisions that presumptively require religious exemptions, that presumption would be rebutted here, since such removal is narrowly tailored to the compelling interest in preserving children’s life and health.

But once such a statute is present, the Michigan Court of Appeals is correct that it can’t distinguish religious objectors based on whether their ostensible coreligionists share their views.

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Last week, former Democratic presidential candidate Andrew Yang, who’s running for mayor of New York City, tweeted about the tenuous state many unlicensed food vendors in the city have found themselves in for decades. But rather than supporting those vendors, thousands of whom can’t even buy the permits they need to operate legally in the city because of a longstanding and arbitrary city cap on such permits, the candidate implied a Yang administration would make life even harder for them.

“You know what I hear over and over again—that NYC is not enforcing rules against unlicensed street vendors,” Yang, currently the frontrunner in the mayoral race, tweeted on Sunday. “I’m for increasing licenses but we should do more for the retailers who are paying rent and trying to survive.”

That tweet, Politico reported, “ignite[d] fury on the left.” City Comptroller Scott Stringer, who’s also running for the city’s top job, accused Yang of criminalizing poverty. Others piled on. The tweet drew more than 4,500 comments, with many of them, such as this one, wondering how arresting a mom who’s selling churros in a city subway to make ends meet, or similar rule enforcement, would achieve anything positive at all

Yang attempted to clarify his original tweet, but that clarification—which included a bizarre call for “[e]ducation for immigrant/non English speaking vendors on rules of vending”—may have made the situation worse. 

In my experience speaking over the years with hundreds of food vendors in New York City and elsewhere—some of whom are indeed immigrants whose first language is not English—I’ve found vendors already understand the rules of vending. What the food vendors I’ve spoken with don’t understand—and what I don’t understand either—is why the rules they must follow are so arbitrary, unfair, and convoluted. It’s certainly not to benefit consumers or vendors. Instead, these rules exist only to protect brick-and-mortar restaurants from competition.

Perhaps recognizing this, Yang backtracked on Monday, saying the controversy was a big misunderstanding caused in part by the challenges of discussing policy matters on Twitter. (LOL.) “‘I regret that I took on such a frankly complicated and nuanced issue’ on Twitter,” New York magazine reported. “He also said that his tweet made it ‘seem like it’s a zero-sum game between unlicensed street vendors and retailers.'”

At a time when more than 1,000 brick-and-mortar restaurants in New York City have shut their doors permanently due to a combination of the ongoing COVID-19 pandemic and city and state restrictions on indoor dining, Yang has sought to position himself as a great champion of city restaurants.

But this is at least Yang’s second food-related campaign snafu. In January, he angered New Yorkers by referring to something that is not a bodega as a bodega. He joins a long list of city pols who appear bizarrely uncomfortable around food. “The first scandal of Bill de Blasio’s tenure as New York City mayor,” USA Today reported in 2014, involved de Blasio eating pizza with a knife and fork.

While the bodega and pizza missteps were minor amusements, Yang’s stance on food vendors is troubling and worrying and would reverse some minor gains made by food vendors under current Mayor Bill de Blasio.

As I noted last year, the outgoing Mayor de Blasio, himself an unsuccessful 2020 presidential candidate, made some moves to bring fairness to the city’s enforcement of its regulations pertaining to food vendors.

In June, as I discussed here, de Blasio announced the city’s police department would no longer be charged with enforcing city food-vending rules. That was an important move. Many of the people put at risk by these policies are immigrants and people of color. At a time when more and more New Yorkers are questioning police tactics for dealing with street vendors, de Blasio’s move should promised to reduce needless confrontations between police and food vendors.

And de Blasio also supported legislation, which recently became law, that offers a path to legitimacy for some city street food vendors. That new law, adopted by the city council in February, will expand the number of available food vendor permits—adding a few hundred new permits each year, beginning next year, rather than removing the cap altogether—and establishes an office of street vendor enforcement and a street vending advisory board. 

Ten years ago, in a lengthy piece for Reason that you should totally read, advocates I spoke with blasted New York City’s awful treatment of food vendors, particularly the permitting process (or absence thereof).

“The Department of Health has capped the amount of food-vending permits,” an attorney representing food vendors told me. “And you cannot get one. The waiting list is even closed. But it was 10 or 15 years’ wait. It’s impossible to get a food vending permit from the city.…If you want to get a permit for your cart or truck, you cannot do it.”

Hence, thousands of existing and potential vendors in New York City have waited decades to buy food-vending permits. The city’s arbitrary cap on permits doesn’t cap the number of vendors. Instead, it incentivizes thousands of vendors to sell food without permits or to obtain permits on the black market.

Andrew Yang’s presidential campaign, though unsuccessful, was notable for its ideas. Yang helped to bring proposals such as universal basic income into mainstream conversation. But Yang’s serious missteps on the key issue facing New York City’s food vendors—in which he relies on the hackneyed misconceptions about food vendors and the city regulations that cruelly and needlessly imperil many of them—suggest his mayoral candidacy might need some new and better ideas.

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If you don’t pay too much attention to the lyrics, there’s not much to distinguish the music video for the song “Gun Totin’ Patriot,” by rappers Bryson Gray and Forgiato Blow, from others of the same genre.

There are the big SUVs, even bigger guns, a healthy contingent of video hoes, a red “Make America Great Again” bucket hat on top of Gray’s head, a lifelike mannequin of former President Donald Trump in military fatigues…OK, it’s actually not much like your typical rap video.

Rather, you’re watching what might be considered the anthem for the niche subgenre (fans and performers might claim they’re a silent majority) of “MAGA rap”—a collection of Trump-worshiping artists who’ve come to life in YouTube videos and hours-long Spotify playlists. They’re only gaining steam in the aftermath of Trump’s failed reelection bid.

Musically, there’s not much to distinguish these MAGA rappers. The beats are all pretty generic. The use of autotune is generous. Instead, it’s the lyrics that really elevate the listening experience.

Your average MAGA rap track sounds like N.W.A. and OANN had a baby. The songs are dense with Trump-world conspiracy theories that only the really online will know about, served up alongside the standard mythology that fans of “45” are the real victims of censorship and oppression.

A representative snippet from “Gun Totin’ Patriot”:

This for free thinkers only you ain’t got no membership
They free General Flynn out the cage ’cause he innocent
Pardon Roger Stone cause the world know that he innocent
We need to kick out every single illegal immigrant
Mandatory voter ID laws we need to implement
Tell Jesse Smollett that I know this MAGA country
Tell China we know they tryin’ to play us like some dummies

The political context in which this music has been created serves as another draw for the genre.

Take Forgiato Blow’s track “We Outside” about the artist’s attendance at the January 6 “Stop the Steal” rally-turned-riot. The music video, also filmed at the rally, features Blow walking around downtown D.C. and the Capitol grounds, ranting about antifa and cavorting with fans and compatriots seemingly as smitten by the rapper’s presence as they are riled up about keeping Trump in the Oval Office.

It’s a ridiculous spectacle made no more serious by Blow’s bright red Skittles-branded jacket. There’s still something seriously menacing and rebellious about the song when one considers the context and intended target of lyrics like we outside, whole gang outside.

That makes the subgenre controversial, to say the least. Yet that same controversy is perhaps the best thing MAGA rap has to offer the genre it’s descended from.

For much of its history, rap and hip-hop drew a lot of their identity and energy from slaughtering the sacred calves of mainstream taste and opinion with songs laden with themes of violence, drug use, and gratuitous sex. Today, the same images fail to ruffle the feathers of polite society. Instead, they’re embraced by those with power and influence.

N.W.A.’s famous song “Fuck tha Police” was once shocking and offensive enough that the FBI tried to stop its release.

Today, that same line is practically mainstream. The “defund the police” movement that sprung up in the summer of 2020 even converted that once-underground sentiment into a respectable progressive policy goal. Cardi B’s near-pornographic single “WAP” horrified a handful of conservative commentators. It also earned a glowing write-up in The New York Times.

In this new reality, it seems, embracing anything remotely related to right-wing politics is one of the few ways rap artists can kick up controversy like they used to.

This is even true for artists who are in no way conservative. Lots of people might disagree with the socialist, pro–gun rights politics of Killer Mike, one half of the Run the Jewels rap duo. Yet it wasn’t until the artist decided to air his views on NRATV that people really got upset.

Still, one shouldn’t single out MAGA rap for undue praise. Much like Trump himself, the genre’s rebellious nature is a lot more heat than light. Take Blow’s song “Ashli Babbitt”—named after the woman shot by Capitol Police on January 6. It tries to both lionize rioters while also making clear that Blow himself did not engage in any specific criminal activity.

“I was on a battlegrounds,” he says in the song. “I was not in no Capitol though. Never went up in the Capitol. I was just there seeing it firsthand.”

“Fuck tha Police,” people might recall, came with fewer caveats about the band’s criminality.

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