Federal Masks Cops To Start Targeting Travelers Today

spnphotosnine901223

Cue the federal mask cops. Americans are now required to wear masks in planes, trains, buses, subways, taxis, car services, boats, and transportation hubs, per a new order from the Centers for Disease Control and Prevention (CDC) that took effect today. Masks must be of a style approved by the federal government and must fit properly. Failure to comply will result in being prohibited from traveling, booted from the transit in question, and potential criminal penalties.

The order will be enforced by Transportation Security Administration (TSA) agents and “other federal authorities,” as well as state and local officials. “To the extent permitted by law…federal agencies are required to implement additional measures enforcing the provisions of this Order,” the CDC says.

“CDC reserves the right to enforce through criminal penalties,” the agency adds, though it claims not to intend “to rely primarily on these criminal penalties.” The feds may also implement “additional civil measures enforcing the provisions” of the order (which “is not a rule within the meaning of the Administrative Procedure Act,” the CDC notes, “but rather is an emergency action”).

Creating a vast network of law enforcement officials empowered to enforce these mask rules will of course provide a handy new excuse for monitoring and surveilling citizens.

Meanwhile, deputizing federal agents, state authorities, and local cops to enforce transit mask rules will open up all sorts of new police harassment and abuse opportunities.

Only targeting people without masks might not seem to leave a lot of room for discriminatory enforcement. But the CDC order doesn’t just stop at people not wearing masks. In fact, it leaves a lot up to officials’ discretion.

For instance, travelers can take masks off while eating, drinking, or taking medication—leaving room for a lot of individual judgments in how long it’s reasonable or appropriate to remove a mask for during these activities, as well as misinterpretation in whether someone is allowed to have a mask on or off at a given moment.

The CDC order also says it’s not enough to simply wear a mask—it has to be a certain kind of mask. It can’t be a bandana, scarf, ski mask, or balaclava. It can’t fit too loosely or too tightly. It can’t contain an exhalation valve or be made from knitted fabrics, leather, plastic, or vinyl.

Again, that leaves a lot of room for authorities to choose who they target for enforcement.

“The CDC rule came just over a week after Biden’s executive order, which already mandated masks on certain modes of public transportation including planes and trains, and it mandated masks on federal property,” notes The Atlanta Journal-Constitution.

The new CDC rules apply to any passengers, operators, or staff of any “aircraft, train, road vehicle, vessel…or other means of transport,” including “rideshares meaning arrangements where passengers travel in a privately owned road vehicle driven by its owner in connection with a fee or service.” The order also applies “on the premises of a transportation hub,” defined as “any airport, bus terminal, marina, seaport or other port, subway station, terminal (including any fixed facility at which passengers are picked-up or discharged), train station, U.S. port of entry, or any other location that provides transportation subject to the jurisdiction of the United States.”

Kids under two years old, people with disabilities that disallow them from wearing masks, and people for whom “wearing a mask would create a risk to workplace health, safety, or job duty” are exempted.


FREE MINDS

Trump PAC, lawyers, and impeachment defense raise eyebrows. A political action committee (PAC) launched by former President Donald Trump “raised $31.5 million in the weeks after Election Day,” reports The Washington Post. But as of January 1, “Trump had held on to the majority of that money in the coffers of Save America, his new leadership PAC, which carries few restrictions on how the money can be spent and can now be used to finance his post-presidential political career.”

With his second impeachment trial fast approaching, Trump has “abruptly parted ways with five lawyers handling his impeachment defense,” The New York Times‘ Maggie Haberman reported over the weekend.

Mr. Trump had pushed for his defense team to focus on his baseless claim that the election was stolen from him, one person familiar with the situation said. A person close to Mr. Trump disputed that that was the case but acknowledged that there were differences in opinion about the defense strategy. However, Mr. Trump has insisted that the case is “simple” and has told advisers he could argue it himself and save the money on lawyers. (Aides contend he is not seriously contemplating doing so.)


FREE MARKETS

E.U. threatens nut milks and vegan ice creams. The latest in Big Dairy protectionism: The European Union is considering a law that “would prohibit plant-based milk producers from using words or images on their food labels that may also be used to describe or refer to animal-based dairy products,” Baylen Linnekin reports.

Worse still, the rules could expand beyond simply censoring words and pictures on food packaging. It could even prohibit the use of some common food packaging itself.

“They would also be unable to use packaging designs that call to mind dairy products, such as yoghurt [containers] or milk cartons,” The Conversation explains. “Even simply showing climate impact by comparing the carbon footprint of their products with dairy equivalents could become illegal.”


QUICK HITS

• The sordid history of the Fairness Doctrine.

• Footage released by the Rochester Police Department in New York shows cops pepper-spraying a 9-year-old girl.

• “Urban collapse is a modern-day version of an apocalypse prophecy: It’s always lurking just around the corner, seductive and terrifying, but it never quite happens,” writes Annalee Newitz, author of Four Lost Cities: A Secret History of the Urban Age, in a new Atlantic article challenging the idea that the COVID-19 pandemic is threatening the existence of big cities like New York and San Francisco. “Lost-city anxieties, like the ones aroused by the pandemic, result from a misunderstanding of what causes cities to decline.”

• A new Department of Justice memo “rescinded a 2017 memo that ordered federal prosecutors to seek the toughest charges and maximum possible sentences on the books,” notes Reason‘s C.J. Ciaramella.

• Two members of the Proud Boys who participated in the January 6 Capitol riot have been charged with federal conspiracy.

• Were your photos used to help build facial recognition databases?

• Department of relaxed rules that need to be permanent:

from Latest – Reason.com https://ift.tt/3pE2kxk
via IFTTT

Federal Masks Cops To Start Targeting Travelers Today

spnphotosnine901223

Cue the federal mask cops. Americans are now required to wear masks in planes, trains, buses, subways, taxis, car services, boats, and transportation hubs, per a new order from the Centers for Disease Control and Prevention (CDC) that took effect today. Masks must be of a style approved by the federal government and must fit properly. Failure to comply will result in being prohibited from traveling, booted from the transit in question, and potential criminal penalties.

The order will be enforced by Transportation Security Administration (TSA) agents and “other federal authorities,” as well as state and local officials. “To the extent permitted by law…federal agencies are required to implement additional measures enforcing the provisions of this Order,” the CDC says.

“CDC reserves the right to enforce through criminal penalties,” the agency adds, though it claims not to intend “to rely primarily on these criminal penalties.” The feds may also implement “additional civil measures enforcing the provisions” of the order (which “is not a rule within the meaning of the Administrative Procedure Act,” the CDC notes, “but rather is an emergency action”).

Creating a vast network of law enforcement officials empowered to enforce these mask rules will of course provide a handy new excuse for monitoring and surveilling citizens.

Meanwhile, deputizing federal agents, state authorities, and local cops to enforce transit mask rules will open up all sorts of new police harassment and abuse opportunities.

Only targeting people without masks might not seem to leave a lot of room for discriminatory enforcement. But the CDC order doesn’t just stop at people not wearing masks. In fact, it leaves a lot up to officials’ discretion.

For instance, travelers can take masks off while eating, drinking, or taking medication—leaving room for a lot of individual judgments in how long it’s reasonable or appropriate to remove a mask for during these activities, as well as misinterpretation in whether someone is allowed to have a mask on or off at a given moment.

The CDC order also says it’s not enough to simply wear a mask—it has to be a certain kind of mask. It can’t be a bandana, scarf, ski mask, or balaclava. It can’t fit too loosely or too tightly. It can’t contain an exhalation valve or be made from knitted fabrics, leather, plastic, or vinyl.

Again, that leaves a lot of room for authorities to choose who they target for enforcement.

“The CDC rule came just over a week after Biden’s executive order, which already mandated masks on certain modes of public transportation including planes and trains, and it mandated masks on federal property,” notes The Atlanta Journal-Constitution.

The new CDC rules apply to any passengers, operators, or staff of any “aircraft, train, road vehicle, vessel…or other means of transport,” including “rideshares meaning arrangements where passengers travel in a privately owned road vehicle driven by its owner in connection with a fee or service.” The order also applies “on the premises of a transportation hub,” defined as “any airport, bus terminal, marina, seaport or other port, subway station, terminal (including any fixed facility at which passengers are picked-up or discharged), train station, U.S. port of entry, or any other location that provides transportation subject to the jurisdiction of the United States.”

Kids under two years old, people with disabilities that disallow them from wearing masks, and people for whom “wearing a mask would create a risk to workplace health, safety, or job duty” are exempted.


FREE MINDS

Trump PAC, lawyers, and impeachment defense raise eyebrows. A political action committee (PAC) launched by former President Donald Trump “raised $31.5 million in the weeks after Election Day,” reports The Washington Post. But as of January 1, “Trump had held on to the majority of that money in the coffers of Save America, his new leadership PAC, which carries few restrictions on how the money can be spent and can now be used to finance his post-presidential political career.”

With his second impeachment trial fast approaching, Trump has “abruptly parted ways with five lawyers handling his impeachment defense,” The New York Times‘ Maggie Haberman reported over the weekend.

Mr. Trump had pushed for his defense team to focus on his baseless claim that the election was stolen from him, one person familiar with the situation said. A person close to Mr. Trump disputed that that was the case but acknowledged that there were differences in opinion about the defense strategy. However, Mr. Trump has insisted that the case is “simple” and has told advisers he could argue it himself and save the money on lawyers. (Aides contend he is not seriously contemplating doing so.)


FREE MARKETS

E.U. threatens nut milks and vegan ice creams. The latest in Big Dairy protectionism: The European Union is considering a law that “would prohibit plant-based milk producers from using words or images on their food labels that may also be used to describe or refer to animal-based dairy products,” Baylen Linnekin reports.

Worse still, the rules could expand beyond simply censoring words and pictures on food packaging. It could even prohibit the use of some common food packaging itself.

“They would also be unable to use packaging designs that call to mind dairy products, such as yoghurt [containers] or milk cartons,” The Conversation explains. “Even simply showing climate impact by comparing the carbon footprint of their products with dairy equivalents could become illegal.”


QUICK HITS

• The sordid history of the Fairness Doctrine.

• Footage released by the Rochester Police Department in New York shows cops pepper-spraying a 9-year-old girl.

• “Urban collapse is a modern-day version of an apocalypse prophecy: It’s always lurking just around the corner, seductive and terrifying, but it never quite happens,” writes Annalee Newitz, author of Four Lost Cities: A Secret History of the Urban Age, in a new Atlantic article challenging the idea that the COVID-19 pandemic is threatening the existence of big cities like New York and San Francisco. “Lost-city anxieties, like the ones aroused by the pandemic, result from a misunderstanding of what causes cities to decline.”

• A new Department of Justice memo “rescinded a 2017 memo that ordered federal prosecutors to seek the toughest charges and maximum possible sentences on the books,” notes Reason‘s C.J. Ciaramella.

• Two members of the Proud Boys who participated in the January 6 Capitol riot have been charged with federal conspiracy.

• Were your photos used to help build facial recognition databases?

• Department of relaxed rules that need to be permanent:

from Latest – Reason.com https://ift.tt/3pE2kxk
via IFTTT

New article—Constitutionalizing Choice of Law: The Temptation of the Dark Side

I have a short article out in the Harvard Journal of Law and Public Policy, on the Constitution and choice of law. There’s no abstract, but here’s how it begins:

What does the Constitution have to say about interstate relations? Well, it depends on how you ask.

One of the main topics in interstate relations is the question of what is called choice of law, which sounds very technical but fundamentally is the question of who governs—that is, which state gets to govern any given transaction.

The same kind of question comes up at the federal level—federal law versus state law—but it is dealt with by the Supremacy Clause of the Constitution, which makes clear that if a federal law is constitutional, it is controlling.1But there is no Supremacy Clause for state law, which has forced people who worry about this question to look harder and elsewhere for some sort of hint about which state is supposed to govern which transaction.

Now, the Supreme Court has largely abdicated any control of the topic of choice of law. And just to give a concrete example: in 1981, the Supreme Court decided a case called Allstate Insurance v. Hague. A friend and learned scholar has described this case to me as one of the most indefensible Supreme Court opinions on any topic ever. . . .

But not all issues in interstate relations are left to the states. Last year, in a case called Franchise Tax Board v. Hyatt, the Supreme Court had a very different question of interstate relations—or, at least, what they thought was a very different question—which is whether or not one state, in this case the State of California, ought to be able to claim sovereign immunity in another state’s court, in that case, the State of Nevada.

This too is a question of interstate relations. One might even call it a question of choice of law.

And from the beginning of Part II:

One way forward would be for the Supreme Court to constitutionalize choice of law doctrine. Professor Douglas Laycock has advocated this in a groundbreaking and important article. It uses some constitutional doctrines I do not completely endorse to achieve some results that I think might be good. So, we might call this “the temptation of the dark side of The Force.”

And it is tempting indeed. I would be reasonably happy living in a world where the Constitution and Supreme Court doctrine controlled all questions of interstate relations. This is not an area where the states can be neutral arbiters, and the Supreme Court is as good a neutral arbiter as we have these days.

Yet as I have suggested, I have some textual misgivings about that world. . .

The whole thing is only 13 pages. These remarks grew out of a panel with Steve Sachs, Douglas Laycock, and David Stras that you can watch here.

 

from Latest – Reason.com https://ift.tt/39zIkGn
via IFTTT

New article—Constitutionalizing Choice of Law: The Temptation of the Dark Side

I have a short article out in the Harvard Journal of Law and Public Policy, on the Constitution and choice of law. There’s no abstract, but here’s how it begins:

What does the Constitution have to say about interstate relations? Well, it depends on how you ask.

One of the main topics in interstate relations is the question of what is called choice of law, which sounds very technical but fundamentally is the question of who governs—that is, which state gets to govern any given transaction.

The same kind of question comes up at the federal level—federal law versus state law—but it is dealt with by the Supremacy Clause of the Constitution, which makes clear that if a federal law is constitutional, it is controlling.1But there is no Supremacy Clause for state law, which has forced people who worry about this question to look harder and elsewhere for some sort of hint about which state is supposed to govern which transaction.

Now, the Supreme Court has largely abdicated any control of the topic of choice of law. And just to give a concrete example: in 1981, the Supreme Court decided a case called Allstate Insurance v. Hague. A friend and learned scholar has described this case to me as one of the most indefensible Supreme Court opinions on any topic ever. . . .

But not all issues in interstate relations are left to the states. Last year, in a case called Franchise Tax Board v. Hyatt, the Supreme Court had a very different question of interstate relations—or, at least, what they thought was a very different question—which is whether or not one state, in this case the State of California, ought to be able to claim sovereign immunity in another state’s court, in that case, the State of Nevada.

This too is a question of interstate relations. One might even call it a question of choice of law.

And from the beginning of Part II:

One way forward would be for the Supreme Court to constitutionalize choice of law doctrine. Professor Douglas Laycock has advocated this in a groundbreaking and important article. It uses some constitutional doctrines I do not completely endorse to achieve some results that I think might be good. So, we might call this “the temptation of the dark side of The Force.”

And it is tempting indeed. I would be reasonably happy living in a world where the Constitution and Supreme Court doctrine controlled all questions of interstate relations. This is not an area where the states can be neutral arbiters, and the Supreme Court is as good a neutral arbiter as we have these days.

Yet as I have suggested, I have some textual misgivings about that world. . .

The whole thing is only 13 pages. These remarks grew out of a panel with Steve Sachs, Douglas Laycock, and David Stras that you can watch here.

 

from Latest – Reason.com https://ift.tt/39zIkGn
via IFTTT

A Practical Wish List for Joe Biden

biden-march-2021-issue

In his victory speech, Joe Biden promised to be “a healer, a uniter, a tested and steady hand.” If the new president wants to make good on his word, Reason staffers have some ideas for a few items to add to his policy agenda. These are suggestions that Biden might plausibly heed. We’re still gunning for the legalization of heroin, but we’d settle for descheduling marijuana. We’d love to see an end to all foreign adventurism, but just getting out of Afghanistan would be a good start. A robust private market in health insurance would be ideal, but the new administration could at least allow a larger variety of plans. No one expects Biden to be a libertarian president, but here are a few things he could do to make the nation a little bit more hospitable to free minds and free markets.

—KATHERINE MANGU-WARD

Reform the Clemency Process

C.J. CIARAMELLA

If the Biden administration wants to make substantive gains in criminal justice reform without having to deal with Congress, it should turn to one of the least limited tools of the presidency: the pardon power.

The last two presidents have handled the pardon power differently. Barack Obama launched an unprecedented large-scale clemency initiative aimed at nonviolent drug offenders. As a result, 1,715 federal inmates had their sentences commuted or reduced. But the process was dogged by foot-dragging and resistance from the Justice Department, and thousands of inmates were left behind.

Pardon and clemency petitions are typically routed through the Justice Department’s Office of the Pardon Attorney. This office solicits feedback on petitions from the very federal prosecutors who secured those sentences, which creates a conflict of interest. “This is something we realized was not working under Obama,” says Jessica Jackson, chief advocacy officer at the Reform Alliance, a criminal justice advocacy organization. “That bottlenecked the process. It had to go through so many hands. There were deserving people who didn’t get it because of the pardon office being in the Justice Department.”

That included Alice Johnson, a grandmother serving a life sentence for a nonviolent drug crime. President Donald Trump commuted Johnson’s sentence after a personal appeal from megacelebrity Kim Kardashian West.

The Trump administration sidelined the Office of the Pardon Attorney, instead relying on a small group of informal advisers who vetted and brought lists of potential recipients to the White House. These included federal inmates who’d been passed over by the Obama administration, such as Crystal Munoz, who was serving 20 years in federal prison for a marijuana offense.

While this allowed commutations and pardons that otherwise would have been torpedoed by the Justice Department, the downside was that the number of beneficiaries slowed to a trickle. By the end of Trump’s term, more than 13,000 clemency applications were pending. He was on track to issue the fewest pardons and commutations of any president since William McKinley, until a spree in December bumped him up to 90 total, ahead of George H.W. Bush’s 77. The process also meant that to secure a commutation, you needed to have well-connected advocates and to capture the president’s fleeting attention. (Imagine how this could be abused if, hypothetically, a president was vain and easily impressed by celebrity status.)

Ideally there could be a smoothly operating pardon office, independent of the Justice Department, that handled clemency petitions at volume, with an eye toward the sort of excessive drug sentences that both Obama and Trump decried but never had the stomach to fully address. This wouldn’t require an act of Congress—just the will of a president able to admit the size and scope of the problem.

C.J. CIARAMELLA is a reporter at Reason.

Get Out of Afghanistan

BRIAN DOHERTY

In both 2011 and 2013, the Obama administration announced its intention to get all our conventional forces out of Afghanistan, where they did little but prop up corruption, provide targets for insurgents, and waste taxpayers’ money. As vice president, Biden tweeted that we would be out of Afghanistan in 2014. He failed to come through then, but he can make up for it now.

Washington currently finds itself, by realpolitik necessity, negotiating with the same force—the Taliban—that it sent troops to Afghanistan to overthrow. We stayed long enough, caused enough death and chaos, and funded enough bad governance for the wheels of history to transform a war that looked like a U.S. victory into an occupation that looks sadly pointless. The best thing we can take away from the experience is the wisdom not to pretend we can pacify or transform a troubled nation half a world away and the prudence not to stay in a war long after its futility has become clear.

Waiting until the Taliban stop misbehaving, or the contending sides in their internal conflicts have settled their differences, guarantees Afghanistan will be a forever war—one that Biden declared last year that “it is past time to end.” Ending it requires presidential resolve, not leaving foreign policy decisions in the hands of Afghanistan’s feuding factions or waiting for fantastical “security conditions” that we never had the power to create.

The Trump administration claimed in November to be on track for an end to our presence there by May. Biden should meet that deadline, or even exceed it—not for the sake of honoring his predecessor, but to honor policy sense and the health and welfare of our armed forces.

In the Obama administration, Biden was a voice for a relatively narrow mission of counterterror rather than a broad one of counterinsurgency. The latter has proven hopelessly ineffective and wasteful, and the former does not require thousands of troops permanently stationed. We should cease any role in the aerial bombing of Afghanistan (which increased under Trump), and we should stop financing that government’s incompetence. American authorities never understood the country’s culture, and after toppling the Taliban they never really understood the mission. It was past time to leave when Biden was vice president; now, as president, he can finally fulfill that promise.

BRIAN DOHERTY is a senior editor at Reason.

Don’t Call It ‘Junk’ Insurance—and Don’t Restrict Its Sale

PETER SUDERMAN

Donald Trump’s presidency began with a fruitless quest to repeal and replace Obamacare. The effort, which chewed up much of Washington’s attention during 2017, failed in part because neither Trump nor congressional Republicans managed to unify around a single plan. Trump, in particular, seemed unable to even explain the basics of what the various replacement plans were attempting to do; at best he promised health care that was “better” and “cheaper.”

Yet out of the ashes of policy failure, the Trump administration did deliver an under-the-radar improvement to the health insurance marketplace, by loosening some of Obamacare’s insurance rules.

Obamacare was designed on the premise that health insurance should be comprehensive. One of the law’s major components was a list of “essential health benefits” that every plan sold through the law’s insurance exchanges were required to include. Anything less was derided as “junk insurance” because it didn’t cover every possible health care eventuality.

This had predictable consequences. The highly regulated insurance sold under Obamacare offered a greater array of benefits. It was also substantially more expensive, which proved particularly troublesome for families whose household incomes were just high enough not to qualify for the law’s subsidies. Health insurance premiums rose throughout Barack Obama’s presidency.

The Trump administration saw this as an opportunity: Why not use executive authority to deregulate cheaper plans with fewer benefits? So in 2018, it loosened restrictions on the sale of what are known as “short-term, limited duration” insurance plans. The Obama administration had restricted the duration of those plans to three-month stretches. Under Trump, the plans became available for up to 36 months.

Those less expensive, less comprehensive plans have since become quite popular, with more than 188,000 people enrolled at the end of 2019—possibly many more, as the plans are not tracked in the same way as more comprehensive policies. The insurance that was derided as junk is, to many Americans, a demonstrable value.

One result has been to keep insurance premiums down: In states relying on the federal health care exchange, premiums for typical plans fell from 2018 through 2020. Meanwhile, Obama-care’s subsidized, regulated plans are still there for Americans who want them.

Biden and his health care team will no doubt be tempted to reverse this, but that would be a mistake. Americans should have the choice of cheaper, less regulated, less comprehensive plans, even if it’s not precisely the coverage that Obamacare’s authors had in mind.

PETER SUDERMAN is features editor at Reason.

Let Hongkongers Come to America

LIZ WOLFE

Improving on Donald Trump’s immigration record won’t be a tall order. While America’s 45th president worked hard to scrap the Deferred Action for Childhood Arrivals program, which allowed roughly 640,000 immigrants who came to the country illegally as children to work and study here legally, Joe Biden says he’ll push for giving them a path to citizenship.

But Biden should add a proposal with less precedent in the U.S. His administration should grant visas to Hongkongers looking to flee Chinese rule and start anew in the United States.

In 1997, China’s “one country, two systems” policy extended autonomy to the island as a condition of Britain handing the territory over to China. (The arrangement was supposed to expire in 2047.) For the ensuing two decades, residents of Hong Kong enjoyed due process in courts of law, the freedom to criticize their government as much as they wanted, and the prosperity brought by thriving commerce.

But over the last few years, the mainland has attempted to take control of Hong Kong ahead of schedule. Residents responded by protesting Beijing’s cruel and duplicitous actions. Hundreds of thousands (by some counts millions) of people took to the streets and occupied thoroughfares for months on end. The authorities then enacted a vague national security law that gives the government broad latitude to squash dissent.

Since then, politically outspoken university faculty members have been stripped of their positions. Organizers have been arrested and jailed—including 53 pro-democracy leaders in a massive early January sweep. Twelve protesters attempted to flee by speedboat to Taiwan, getting only a quarter of the way before they were apprehended. Their families begged for their release with their faces obscured, fearing retribution.

Though Hong Kong’s freedoms are largely gone, Hongkongers now have a more profound appreciation for the value of free expression. They’d be wonderful new Americans for that reason alone. On a more practical level, many Hongkongers are highly educated and entrepreneurial; they could breathe fresh air into U.S. regions and towns that need to be reinvigorated. And letting them in would have bipartisan support: High-profile Republicans such as former Senate Majority Leader Mitch McConnell of Kentucky have explicitly (and rightly!) called for providing a “beacon of light” to people fleeing communism. For all these reasons, President Biden should give refuge to Hongkongers yearning to breathe free.

LIZ WOLFE is staff editor at Reason.

Expand Your Marijuana Reform Ambitions

JACOB SULLUM

Unlike most of the candidates for the 2020 Democratic presidential nomination (including his eventual running mate), Joe Biden opposes federal legalization of marijuana. Instead, he says he wants to “decriminalize cannabis use,” expunge the records related to such cases, and move marijuana to a less restrictive legal category.

Those first two steps would not have much impact, since the Justice Department rarely prosecutes low-level possession cases. Moving marijuana from Schedule I of the Controlled Substances Act (CSA), a category supposedly reserved for exceptionally dangerous drugs with no accepted medical use, to Schedule II, which indicates that a drug has a high abuse potential but can be used as a medicine, might facilitate research. But it would not address the untenable conflict between the CSA and the laws of the 36 states that allow medical or recreational use of marijuana.

That conflict casts a dark shadow over the burgeoning cannabis industry, making basic business functions such as banking and paying taxes needlessly difficult, costly, complicated, and legally perilous. Descheduling marijuana completely, as a groundbreaking bill that the House of Representatives approved in December would do, is the most straightforward way to address that problem. But even if Biden could be persuaded to support that solution, which Vice President Kamala Harris favored as a senator, Republican opposition probably would make it politically impossible. Just five Republicans voted for the House bill, and Senate passage would require GOP support or Democratic unanimity.

A less radical approach, embodied in a 2017 bill that attracted bipartisan support in the House, is to revise the CSA’s marijuana ban so that it does not apply to state-legal conduct. Such an amendment would jibe with Biden’s promise to “leave decisions regarding legalization for recreational use up to the states,” and it should appeal to the federalist instincts of at least some Republican legislators.

If that option is also off the table, Biden might be persuaded to support piecemeal reforms with a better chance of passing both chambers. The Secure and Fair Enforcement Banking Act, for instance, would protect banks that serve state-licensed marijuana businesses from the threat of criminal penalties and potentially ruinous regulatory sanctions. The Small Business Tax Equity Act would amend Section 280E of the Internal Revenue Code, which prohibits state-licensed marijuana suppliers from deducting business expenses on their federal returns, a disability that raises their effective tax rates to as much as 75 percent.

The Veterans Equal Access Act would allow doctors in the V.A. health care system to recommend medical marijuana in states where it is legal. It’s a modest reform that should appeal to legislators who want to be seen as standing up for veterans, especially now that more than 70 percent of the states allow medical use of cannabis.

Biden may never come around on marijuana legalization. But he could still support steps like these, which would significantly reduce the harm caused by federal prohibition.

Senior Editor JACOB SULLUM is a nationally syndicated columnist.

Keep Playing Nice With Private Space Companies

KATHERINE MANGU-WARD

Joe Biden doesn’t seem to be much of a space geek. Like virtually all American politicians, he says nice, bland stuff about “a bold space program that will continue to send astronaut heroes to expand our exploration and scientific frontiers.” That’s fine. If he simply sticks to Obama-era space policies, that will be more than enough to protect the incredible progress we have made returning Americans to orbit on privately built and launched vehicles in collaboration with NASA.

In a somewhat unexpected twist, President Barack Obama supported privatization in the space sector, diverting funding to contract with commercial firms for resupply missions and more. That program bore fruit during the Trump administration with the stirring, successful manned missions that sent astronauts aboard SpaceX vehicles to the International Space Station (ISS).

Battles about the new Space Force and climate science funding will likely be highly politicized. But what we know about Biden’s transition team suggests a heartening possibility that he will break with bipartisan tradition and try to terminate funding for the wasteful and porky Space Launch System (SLS), the super heavy–lift rocket built primarily by Boeing and famed for its development delays and cost overruns. SLS is projected to cost as much as $2 billion per mission when it’s done—if it’s ever done. Compare that with $90 million per launch for SpaceX’s Falcon Heavy, which is admittedly a less powerful rocket but is reusable and has a track record of success.

That said, there’s a good chance inertia will again triumph in the space-industrial complex; many powerful legislators have incentives to keep Boeing happy and the people who work at SLS facilities in their districts employed. Trump planned to end public funding for the ISS, putting the floating lab and habitat in private hands in 2025. Biden will likely reverse or dramatically slow this decision.

On the brighter side, he will also probably push back the Trump administration’s wildly unrealistic plan to return to the moon in 2024. That will give private companies more time to prepare for the challenge, and competitors such as Blue Origin more time to get established in commercial launch.

KATHERINE MANGU-WARD is editor in chief of Reason.

End Trump’s Trade Wars

ERIC BOEHM

President Joe Biden should lift the myriad tariffs that Donald Trump placed on foreign steel, aluminum, solar panels, and washing machines, along with a wide range of Chinese-made goods. Those tariffs have burdened American consumers and businesses—ironically harming manufacturers more than most—without accomplishing much else. Unilaterally repealing them would not be a surrender; it would be a refusal to keep firing a gun at America’s foot.

Trump was right that the United States has a key role to play in standing up to China’s authoritarian tendencies. But our economic interests are too interwoven with China’s for Trump’s zero-sum approach to be successful. The goal should be not to defeat China but to encourage it to change—and to reward it for moving in a pro-freedom direction.

Rather than spurning allies, Biden should take a multilateral approach. Japan, Vietnam, and other major American trading partners share many of our concerns about the economic influence China exerts. It makes sense to pursue a regional trade deal that would lower tariffs for imports from non-China countries. That would give American businesses clear alternatives for overseas investment and force China to change if it wants to keep competing.

That was the basic idea behind the Trans-Pacific Partnership (TPP), the Obama-era trade agreement that Trump tore up during his first week in office. The other nations involved in that deal went ahead without the United States, but America’s participation would probably be welcomed, though some diplomacy might be necessary. Biden has said he would not rejoin the TPP as it was previously written but that he would leverage America’s allies to hold China accountable for breaking international norms on trade. That’s a good place to start.

Trump’s trade wars were deeply unpopular, and polls show that free trade is now more popular with Americans than ever before. Biden, who has a long history of supporting trade deals that lowered tariffs and boosted American prosperity, should not shy away from arguing that more trade is good both for America and for the rest of the world.

ERIC BOEHM is a reporter at Reason.

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A Practical Wish List for Joe Biden

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In his victory speech, Joe Biden promised to be “a healer, a uniter, a tested and steady hand.” If the new president wants to make good on his word, Reason staffers have some ideas for a few items to add to his policy agenda. These are suggestions that Biden might plausibly heed. We’re still gunning for the legalization of heroin, but we’d settle for descheduling marijuana. We’d love to see an end to all foreign adventurism, but just getting out of Afghanistan would be a good start. A robust private market in health insurance would be ideal, but the new administration could at least allow a larger variety of plans. No one expects Biden to be a libertarian president, but here are a few things he could do to make the nation a little bit more hospitable to free minds and free markets.

—KATHERINE MANGU-WARD

Reform the Clemency Process

C.J. CIARAMELLA

If the Biden administration wants to make substantive gains in criminal justice reform without having to deal with Congress, it should turn to one of the least limited tools of the presidency: the pardon power.

The last two presidents have handled the pardon power differently. Barack Obama launched an unprecedented large-scale clemency initiative aimed at nonviolent drug offenders. As a result, 1,715 federal inmates had their sentences commuted or reduced. But the process was dogged by foot-dragging and resistance from the Justice Department, and thousands of inmates were left behind.

Pardon and clemency petitions are typically routed through the Justice Department’s Office of the Pardon Attorney. This office solicits feedback on petitions from the very federal prosecutors who secured those sentences, which creates a conflict of interest. “This is something we realized was not working under Obama,” says Jessica Jackson, chief advocacy officer at the Reform Alliance, a criminal justice advocacy organization. “That bottlenecked the process. It had to go through so many hands. There were deserving people who didn’t get it because of the pardon office being in the Justice Department.”

That included Alice Johnson, a grandmother serving a life sentence for a nonviolent drug crime. President Donald Trump commuted Johnson’s sentence after a personal appeal from megacelebrity Kim Kardashian West.

The Trump administration sidelined the Office of the Pardon Attorney, instead relying on a small group of informal advisers who vetted and brought lists of potential recipients to the White House. These included federal inmates who’d been passed over by the Obama administration, such as Crystal Munoz, who was serving 20 years in federal prison for a marijuana offense.

While this allowed commutations and pardons that otherwise would have been torpedoed by the Justice Department, the downside was that the number of beneficiaries slowed to a trickle. By the end of Trump’s term, more than 13,000 clemency applications were pending. He was on track to issue the fewest pardons and commutations of any president since William McKinley, until a spree in December bumped him up to 90 total, ahead of George H.W. Bush’s 77. The process also meant that to secure a commutation, you needed to have well-connected advocates and to capture the president’s fleeting attention. (Imagine how this could be abused if, hypothetically, a president was vain and easily impressed by celebrity status.)

Ideally there could be a smoothly operating pardon office, independent of the Justice Department, that handled clemency petitions at volume, with an eye toward the sort of excessive drug sentences that both Obama and Trump decried but never had the stomach to fully address. This wouldn’t require an act of Congress—just the will of a president able to admit the size and scope of the problem.

C.J. CIARAMELLA is a reporter at Reason.

Get Out of Afghanistan

BRIAN DOHERTY

In both 2011 and 2013, the Obama administration announced its intention to get all our conventional forces out of Afghanistan, where they did little but prop up corruption, provide targets for insurgents, and waste taxpayers’ money. As vice president, Biden tweeted that we would be out of Afghanistan in 2014. He failed to come through then, but he can make up for it now.

Washington currently finds itself, by realpolitik necessity, negotiating with the same force—the Taliban—that it sent troops to Afghanistan to overthrow. We stayed long enough, caused enough death and chaos, and funded enough bad governance for the wheels of history to transform a war that looked like a U.S. victory into an occupation that looks sadly pointless. The best thing we can take away from the experience is the wisdom not to pretend we can pacify or transform a troubled nation half a world away and the prudence not to stay in a war long after its futility has become clear.

Waiting until the Taliban stop misbehaving, or the contending sides in their internal conflicts have settled their differences, guarantees Afghanistan will be a forever war—one that Biden declared last year that “it is past time to end.” Ending it requires presidential resolve, not leaving foreign policy decisions in the hands of Afghanistan’s feuding factions or waiting for fantastical “security conditions” that we never had the power to create.

The Trump administration claimed in November to be on track for an end to our presence there by May. Biden should meet that deadline, or even exceed it—not for the sake of honoring his predecessor, but to honor policy sense and the health and welfare of our armed forces.

In the Obama administration, Biden was a voice for a relatively narrow mission of counterterror rather than a broad one of counterinsurgency. The latter has proven hopelessly ineffective and wasteful, and the former does not require thousands of troops permanently stationed. We should cease any role in the aerial bombing of Afghanistan (which increased under Trump), and we should stop financing that government’s incompetence. American authorities never understood the country’s culture, and after toppling the Taliban they never really understood the mission. It was past time to leave when Biden was vice president; now, as president, he can finally fulfill that promise.

BRIAN DOHERTY is a senior editor at Reason.

Don’t Call It ‘Junk’ Insurance—and Don’t Restrict Its Sale

PETER SUDERMAN

Donald Trump’s presidency began with a fruitless quest to repeal and replace Obamacare. The effort, which chewed up much of Washington’s attention during 2017, failed in part because neither Trump nor congressional Republicans managed to unify around a single plan. Trump, in particular, seemed unable to even explain the basics of what the various replacement plans were attempting to do; at best he promised health care that was “better” and “cheaper.”

Yet out of the ashes of policy failure, the Trump administration did deliver an under-the-radar improvement to the health insurance marketplace, by loosening some of Obamacare’s insurance rules.

Obamacare was designed on the premise that health insurance should be comprehensive. One of the law’s major components was a list of “essential health benefits” that every plan sold through the law’s insurance exchanges were required to include. Anything less was derided as “junk insurance” because it didn’t cover every possible health care eventuality.

This had predictable consequences. The highly regulated insurance sold under Obamacare offered a greater array of benefits. It was also substantially more expensive, which proved particularly troublesome for families whose household incomes were just high enough not to qualify for the law’s subsidies. Health insurance premiums rose throughout Barack Obama’s presidency.

The Trump administration saw this as an opportunity: Why not use executive authority to deregulate cheaper plans with fewer benefits? So in 2018, it loosened restrictions on the sale of what are known as “short-term, limited duration” insurance plans. The Obama administration had restricted the duration of those plans to three-month stretches. Under Trump, the plans became available for up to 36 months.

Those less expensive, less comprehensive plans have since become quite popular, with more than 188,000 people enrolled at the end of 2019—possibly many more, as the plans are not tracked in the same way as more comprehensive policies. The insurance that was derided as junk is, to many Americans, a demonstrable value.

One result has been to keep insurance premiums down: In states relying on the federal health care exchange, premiums for typical plans fell from 2018 through 2020. Meanwhile, Obama-care’s subsidized, regulated plans are still there for Americans who want them.

Biden and his health care team will no doubt be tempted to reverse this, but that would be a mistake. Americans should have the choice of cheaper, less regulated, less comprehensive plans, even if it’s not precisely the coverage that Obamacare’s authors had in mind.

PETER SUDERMAN is features editor at Reason.

Let Hongkongers Come to America

LIZ WOLFE

Improving on Donald Trump’s immigration record won’t be a tall order. While America’s 45th president worked hard to scrap the Deferred Action for Childhood Arrivals program, which allowed roughly 640,000 immigrants who came to the country illegally as children to work and study here legally, Joe Biden says he’ll push for giving them a path to citizenship.

But Biden should add a proposal with less precedent in the U.S. His administration should grant visas to Hongkongers looking to flee Chinese rule and start anew in the United States.

In 1997, China’s “one country, two systems” policy extended autonomy to the island as a condition of Britain handing the territory over to China. (The arrangement was supposed to expire in 2047.) For the ensuing two decades, residents of Hong Kong enjoyed due process in courts of law, the freedom to criticize their government as much as they wanted, and the prosperity brought by thriving commerce.

But over the last few years, the mainland has attempted to take control of Hong Kong ahead of schedule. Residents responded by protesting Beijing’s cruel and duplicitous actions. Hundreds of thousands (by some counts millions) of people took to the streets and occupied thoroughfares for months on end. The authorities then enacted a vague national security law that gives the government broad latitude to squash dissent.

Since then, politically outspoken university faculty members have been stripped of their positions. Organizers have been arrested and jailed—including 53 pro-democracy leaders in a massive early January sweep. Twelve protesters attempted to flee by speedboat to Taiwan, getting only a quarter of the way before they were apprehended. Their families begged for their release with their faces obscured, fearing retribution.

Though Hong Kong’s freedoms are largely gone, Hongkongers now have a more profound appreciation for the value of free expression. They’d be wonderful new Americans for that reason alone. On a more practical level, many Hongkongers are highly educated and entrepreneurial; they could breathe fresh air into U.S. regions and towns that need to be reinvigorated. And letting them in would have bipartisan support: High-profile Republicans such as former Senate Majority Leader Mitch McConnell of Kentucky have explicitly (and rightly!) called for providing a “beacon of light” to people fleeing communism. For all these reasons, President Biden should give refuge to Hongkongers yearning to breathe free.

LIZ WOLFE is staff editor at Reason.

Expand Your Marijuana Reform Ambitions

JACOB SULLUM

Unlike most of the candidates for the 2020 Democratic presidential nomination (including his eventual running mate), Joe Biden opposes federal legalization of marijuana. Instead, he says he wants to “decriminalize cannabis use,” expunge the records related to such cases, and move marijuana to a less restrictive legal category.

Those first two steps would not have much impact, since the Justice Department rarely prosecutes low-level possession cases. Moving marijuana from Schedule I of the Controlled Substances Act (CSA), a category supposedly reserved for exceptionally dangerous drugs with no accepted medical use, to Schedule II, which indicates that a drug has a high abuse potential but can be used as a medicine, might facilitate research. But it would not address the untenable conflict between the CSA and the laws of the 36 states that allow medical or recreational use of marijuana.

That conflict casts a dark shadow over the burgeoning cannabis industry, making basic business functions such as banking and paying taxes needlessly difficult, costly, complicated, and legally perilous. Descheduling marijuana completely, as a groundbreaking bill that the House of Representatives approved in December would do, is the most straightforward way to address that problem. But even if Biden could be persuaded to support that solution, which Vice President Kamala Harris favored as a senator, Republican opposition probably would make it politically impossible. Just five Republicans voted for the House bill, and Senate passage would require GOP support or Democratic unanimity.

A less radical approach, embodied in a 2017 bill that attracted bipartisan support in the House, is to revise the CSA’s marijuana ban so that it does not apply to state-legal conduct. Such an amendment would jibe with Biden’s promise to “leave decisions regarding legalization for recreational use up to the states,” and it should appeal to the federalist instincts of at least some Republican legislators.

If that option is also off the table, Biden might be persuaded to support piecemeal reforms with a better chance of passing both chambers. The Secure and Fair Enforcement Banking Act, for instance, would protect banks that serve state-licensed marijuana businesses from the threat of criminal penalties and potentially ruinous regulatory sanctions. The Small Business Tax Equity Act would amend Section 280E of the Internal Revenue Code, which prohibits state-licensed marijuana suppliers from deducting business expenses on their federal returns, a disability that raises their effective tax rates to as much as 75 percent.

The Veterans Equal Access Act would allow doctors in the V.A. health care system to recommend medical marijuana in states where it is legal. It’s a modest reform that should appeal to legislators who want to be seen as standing up for veterans, especially now that more than 70 percent of the states allow medical use of cannabis.

Biden may never come around on marijuana legalization. But he could still support steps like these, which would significantly reduce the harm caused by federal prohibition.

Senior Editor JACOB SULLUM is a nationally syndicated columnist.

Keep Playing Nice With Private Space Companies

KATHERINE MANGU-WARD

Joe Biden doesn’t seem to be much of a space geek. Like virtually all American politicians, he says nice, bland stuff about “a bold space program that will continue to send astronaut heroes to expand our exploration and scientific frontiers.” That’s fine. If he simply sticks to Obama-era space policies, that will be more than enough to protect the incredible progress we have made returning Americans to orbit on privately built and launched vehicles in collaboration with NASA.

In a somewhat unexpected twist, President Barack Obama supported privatization in the space sector, diverting funding to contract with commercial firms for resupply missions and more. That program bore fruit during the Trump administration with the stirring, successful manned missions that sent astronauts aboard SpaceX vehicles to the International Space Station (ISS).

Battles about the new Space Force and climate science funding will likely be highly politicized. But what we know about Biden’s transition team suggests a heartening possibility that he will break with bipartisan tradition and try to terminate funding for the wasteful and porky Space Launch System (SLS), the super heavy–lift rocket built primarily by Boeing and famed for its development delays and cost overruns. SLS is projected to cost as much as $2 billion per mission when it’s done—if it’s ever done. Compare that with $90 million per launch for SpaceX’s Falcon Heavy, which is admittedly a less powerful rocket but is reusable and has a track record of success.

That said, there’s a good chance inertia will again triumph in the space-industrial complex; many powerful legislators have incentives to keep Boeing happy and the people who work at SLS facilities in their districts employed. Trump planned to end public funding for the ISS, putting the floating lab and habitat in private hands in 2025. Biden will likely reverse or dramatically slow this decision.

On the brighter side, he will also probably push back the Trump administration’s wildly unrealistic plan to return to the moon in 2024. That will give private companies more time to prepare for the challenge, and competitors such as Blue Origin more time to get established in commercial launch.

KATHERINE MANGU-WARD is editor in chief of Reason.

End Trump’s Trade Wars

ERIC BOEHM

President Joe Biden should lift the myriad tariffs that Donald Trump placed on foreign steel, aluminum, solar panels, and washing machines, along with a wide range of Chinese-made goods. Those tariffs have burdened American consumers and businesses—ironically harming manufacturers more than most—without accomplishing much else. Unilaterally repealing them would not be a surrender; it would be a refusal to keep firing a gun at America’s foot.

Trump was right that the United States has a key role to play in standing up to China’s authoritarian tendencies. But our economic interests are too interwoven with China’s for Trump’s zero-sum approach to be successful. The goal should be not to defeat China but to encourage it to change—and to reward it for moving in a pro-freedom direction.

Rather than spurning allies, Biden should take a multilateral approach. Japan, Vietnam, and other major American trading partners share many of our concerns about the economic influence China exerts. It makes sense to pursue a regional trade deal that would lower tariffs for imports from non-China countries. That would give American businesses clear alternatives for overseas investment and force China to change if it wants to keep competing.

That was the basic idea behind the Trans-Pacific Partnership (TPP), the Obama-era trade agreement that Trump tore up during his first week in office. The other nations involved in that deal went ahead without the United States, but America’s participation would probably be welcomed, though some diplomacy might be necessary. Biden has said he would not rejoin the TPP as it was previously written but that he would leverage America’s allies to hold China accountable for breaking international norms on trade. That’s a good place to start.

Trump’s trade wars were deeply unpopular, and polls show that free trade is now more popular with Americans than ever before. Biden, who has a long history of supporting trade deals that lowered tariffs and boosted American prosperity, should not shy away from arguing that more trade is good both for America and for the rest of the world.

ERIC BOEHM is a reporter at Reason.

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Brickbat: That’s a Stretch

mosque_1161x653

The Pakistani government has told leaders of the Ahmadiyya Muslim Community USA to take down the organization’s U.S.-based website or face prosecution under Pakistan’s blasphemy laws. Ahmadis regard the sect’s founder, Mirza Ghulam Ahmad, as a prophet subordinate to Mohammad. They regard themselves as Muslim but are regarded as heretics and officially repressed in Pakistan. The leaders of Ahmadiyya Muslim Community USA are all U.S. citizens. But prosecution could make it dangerous for them to visit relatives in Pakistan.

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Brickbat: That’s a Stretch

mosque_1161x653

The Pakistani government has told leaders of the Ahmadiyya Muslim Community USA to take down the organization’s U.S.-based website or face prosecution under Pakistan’s blasphemy laws. Ahmadis regard the sect’s founder, Mirza Ghulam Ahmad, as a prophet subordinate to Mohammad. They regard themselves as Muslim but are regarded as heretics and officially repressed in Pakistan. The leaders of Ahmadiyya Muslim Community USA are all U.S. citizens. But prosecution could make it dangerous for them to visit relatives in Pakistan.

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