Category: reason

I’m thankful.

Yes, we’ve got the pandemic, lockdowns, a worsening deficit, etc.

But we still live in a relatively free country at the most prosperous time in human history.

The pandemic showed that when people are faced with crises, we adjust. Restaurants switched to takeout and outdoor dining. Grocery stores began curbside pickup. Companies mass-produced masks, hand sanitizer, ventilators, and, now, vaccines. I hide from COVID-19 by staying home; yet, thanks to new services such as Zoom, I can research this column and make my weekly videos from my couch.

That’s brought benefits. I no longer have to deal with traffic congestion.

Traffic jams are a good example of what ecologist Garrett Hardin called the “Tragedy of the Commons.”

Because roads are free, more people drive, and roads are often congested. If roads were subject to “peak-load pricing, charging higher prices during times of peak demand and lower prices at other times,” Hardin wrote, then we’d have fewer traffic jams.

I bring this up now, before Thanksgiving, because a similar Tragedy of the Commons nearly killed the Pilgrims. When they landed at Plymouth Rock, they started a society based on sharing.

Sharing sounds great.

But sharing, basically, is collective or communal farming, which is socialism. Food and supplies were distributed based on need. Pilgrims were forbidden to selfishly produce food for themselves.

That collective farming was a disaster. When the first harvest came, there wasn’t much food to go around. The Pilgrims nearly starved.

Since no individual owned crops from the farm, no one had an incentive to work harder to produce extra that they might sell to others. Since even slackers got food from the communal supply, there was no penalty for not working.

William Bradford wrote in his “History of Plymouth Plantation” that the colony was ridden with “corruption” and “much was stolen both by night and day, before it became scarce eatable.”

People eager to provide for their families were less eager to provide for others. Bradford wrote, “young men, that were most able and fit for labour, did repine that they should spend their time and strength to work for other men’s wives and children without any recompense.”

Ultimately, said Bradford, shared farming “was found to breed much confusion and discontent and retard much employment that would have been to their benefit and comfort.”

The Pilgrims “begane to thinke how they might raise as much corne as they could, and obtaine a beter crope (so) they might not still thus languish in miserie.”

Languishing in misery is what people in Venezuela do now.

The Pilgrims’ solution: private property.

In 1623, the collective farm was split up, and every family was given a plot of land. People could grow their own food and keep it or trade it. “It made all hands very industrious, so as much more corn was planted than otherwise would have been.” wrote Bradford. “Women now went willingly into the field, and took their little ones with them to set corn; which before would allege weakness and inability.”

The Pilgrims flourished because they turned to private property.

So, this Thanksgiving, be grateful for private property, a foundation of capitalism.

Your grocery may not have the small turkey you wanted this year, but they have much more of what you want than people in the Soviet Union ever got.

When you’re shopping for dinner or stocking up for Lockdown 2.0, be glad that you have so many options available.

If government controlled the production of turkeys and toilet paper, this would be a very, very unhappy Thanksgiving.

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Six months after the Drug Enforcement Administration stole $43,000 from Stacy Jones at a North Carolina airport, her lawyer, Dan Alban, received a letter from the aptly named Douglas Kash, a senior attorney in the DEA’s Asset Forfeiture Section. “I am writing to inform you of the decision to return the above-referenced property,” Kash said.

While the DEA offered no explanation for its sudden benevolence, the reversal fit a pattern: Government bullies who use civil asset forfeiture laws to seize allegedly crime-tainted property from innocent people tend to back down when they encounter unexpected resistance. But because challenging a forfeiture is complicated and expensive, most targets of legalized larceny are in no position to put up a fight.

On May 19, Jones and her husband, who had flown to North Carolina for a casino reopening, were on their way back to Tampa, having cut their visit short because of a death in the family. They had brought cash with them for gambling and acquired more after selling a car to friends.

Although Jones was doing nothing illegal, an airport screener alerted a sheriff’s deputy, who in turn alerted the DEA, which tends to view large amounts of cash as inherently suspicious. Based on nothing more than a hunch that the money was connected to illegal activity, the DEA seized it—the first step in a confiscation process that the government can complete without ever filing criminal charges.

In July, Jones joined a class-action lawsuit that the Institute for Justice (I.J.) originally filed in January, arguing that the DEA’s practice of robbing travelers violates the Fourth Amendment’s ban on unreasonable searches and seizures. Four months later, the DEA evidently decided that Jones wasn’t a criminal after all.

Jones’ experience mirrored what had happened with the lead plaintiffs in the lawsuit. Terrence Rolin, a 79-year-old retired railroad engineer, lost his life savings—$82,373—to a DEA seizure after his daughter, whom he had charged with depositing the money in a joint bank account, took it with her while flying from Pittsburgh, where she was visiting him, to her home in Massachusetts. Two months later, after the case attracted national publicity, the DEA agreed to return the money.

The same basic scenario has played out over and over again in civil forfeiture cases. Until a 2019 law banned the practice, for example, the IRS had a habit of seizing people’s bank accounts based on nothing more than deposits it deemed suspiciously small, which it saw as evidence of illegal “structuring” aimed at evading federal reporting requirements.

I.J. has represented several victims of that policy, including an Iowa restaurateur, a North Carolina convenience store owner, a Maryland dairy farmer, and a Long Island candy wholesaler. In all of those cases, negative publicity and legal risk apparently persuaded the government to return the money.

Charles Clarke, a college student who was robbed of $11,000 in cash by cops at the Cincinnati/Northern Kentucky International Airport in 2014, got his money back with interest under a 2016 agreement negotiated by I.J. Gerardo Serrano, whose pickup truck was seized at the border with Mexico in 2015 because of a few forgotten handgun rounds (arms smuggling!), got it back in 2017, a month after I.J. filed a lawsuit on behalf of him and similarly situated travelers.

Kevin McBride, a Tucson handyman, lost his Jeep last May because his girlfriend allegedly used it for a $25 marijuana sale. Local prosecutors decided to return the vehicle three months later, the day after the Goldwater Institute threatened to sue.

Despite the anxiety and hardship they suffered, these property owners were relatively lucky, because they had pro bono legal assistance. Unlike criminal defendants, owners of seized assets generally have no right to court-appointed counsel.

Challenging a forfeiture often costs more than the property is worth, and there is no guarantee of victory. That makes surrender the most sensible option for most forfeiture victims, which helps preserve a system that turns cops into robbers.

© Copyright 2020 by Creators Syndicate Inc.

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Before the current pandemic, I had never read the Massachusetts Supreme Judicial Court’s opinion in Commonwealth v. Jacobson. That case observed, “[i]f a person should deem it important that vaccination should not be performed in his case, and the authorities should think otherwise, it is not in their power to vaccinate him by force, and the worst that could happen to him under the statute would be the payment of the penalty of $5.” I was struck by that sentence.

I had long assumed that Jacobson upheld the state’s power to forcibly vaccinate someone. For example, states routinely force people into quarantines. Why couldn’t states take the antecedent step of inoculating people, even against their wishes, to avoid the need to quarantine? In Buck v. Bell, Justice Holmes analogized the forcible sterilization of Carrie Buck to the forcible vaccination of Henning Jacobson. But my assumption was wrong. And I suspect I am not alone. Most lawyers never actually read Jacobson, let alone the lower court opinion. The case does not appear in any casebook I have reviewed. And, I doubt most judges who have cited Jacobson in the past 6 months have bothered to read both opinions. Rather, I suspect most lawyers and judges are familiar with Buck v. Bell, and rely on Holmes’s characterization.

This assumption gives rise to an important question: What exactly is a vaccine mandate?In the concept of a vaccination, there are two approaches to understand a “mandate.” The first approach reflects the law at issue in Jacobson. Those who refuse to be vaccinated must pay a nominal fine. Five dollars is roughly $150 in present-day value. I think it was significant there was no jail time associated with this offense. Throwing people in jail for refusing to be vaccinated would have presented a harder case. The second approach reflects a different type of law: people who refuse to be vaccinated will be forcibly vaccinated by the state. That is, the state would forcibly restrain someone and inject them with the vaccine. That law, I suspect, would have been declared unconstitutional by the Lochner Court. (Lochner and Jacobson were decided two months apart.)

In Buck v. Bell, Justice Holmes had to rely on the second conception of the mandate to uphold Virginia’s sterilization act. Carrie Buck was not given the option to pay a nominal fine in exchange for keeping her reproductive functions. Nor was Buck given the option to serve a jail sentence for refusing to submit to the surgery. She had one option: submit to the procedure. Holmes needed some precedent to support this outcome. And he looked to Jacobson. Holmes concluded that “the principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.” But Jacobson did not actually sustain “compulsory vaccination.”

I’m not sure that any state has ever relied on the second approach to achieve “compulsory vaccination.” Unvaccinated students may be denied access to public education. But the state will not jab unvaccinated students in the arm with a syringe at the schoolhouse gates. Indeed, laws that are routinely called mandates are not actually mandates. If a person on a bicycle refuses to wear a helmet, the government will issue a citation, not force the person to wear a helmet. If a person refuses to wear a seat belt, the police will ticket, not click it. A person who skips jury duty may be served with a bench warrant, but he will not be dragged into the jury box. Our society abjures actual requirements for people to take specific actions. The state has the power to compel people to take certain actions through two primary sticks: fines and/or incarceration. And the Due Process Clause of the Fourteenth Amendment does not prevent the government from imposing such punishments–even though people are being deprived of their “property” (money) or “liberty” (freedom to leave prison).

Now back to COVID. Some states may wish to enact laws that resemble the law at issue in Jacobson: people who refuse to take a COVID-19 vaccine will have to pay a nominal fine. Let’s put aside state RFRAs or the Free Exercise Clause for a moment. Under Jacobson, this sort of mandate would not run afoul of the Due Process Clause of the Fourteenth Amendment.

What if other states wish to get more aggressive? Perhaps a state wants to enact a true compulsory vaccination regime. Maybe the state wishes to go door-to-door, and inject people with the vaccine. And those people who forcibly resist the vaccine will be restrained, strapped to a gurney, and injection. (I imagine China would enforce such a regime). Would Jacobson support such a regime of compulsory vaccination? No. Here, the government would have to rely on Buck v. Bell. That is the leading precedent that allows the government to perform medical procedures to advance the public good. Good luck citing Buck v. Bell in court.

I think it is a tougher question whether the state can hold a person in prison indefinitely until they agree to receive a vaccine. Indeed, Buck v. Bell held that sterilization was a lesser intrusion on freedom than permanent incarceration. (Every year I ask my students whether which punishment was worse–they divide in unexpected ways.) Granted, the COVID-19 pandemic will (hopefully) draw to a close sooner rather than later. So I do not think indefinite detention would be an option. But imagine there is another virus for which herd immunity requires 100% inoculation rate, annually. Could the state simply imprison those who refuse to be vaccinated indefinitely?

At this point, I’m some of you are screaming what about OBAMACARE!? So far, I have only discussed state mandates. A very different analysis pertains to a federal mandate. Section 5000A(a) of the Affordable Care Act imposed a requirement to maintain insurance. And Section 5000B(b) imposed a penalty on those who fail to maintain insurance. The Obama Administration argued that there was not a mandate. Rather, these two provisions worked together to offer people a choice: purchase insurance of pay a tax-penalty. Indeed, the law that the Obama Administration described resembled the statute in Jacobson. (I made this point yesterday). If the Obama Administration’s reading of Section 5000A as a whole is correct, then that provision was constitutional in 2010.

Now I think NFIB rejected that reading. I won’t rehash that argument here. But let’s assume I am right for a moment. If I’m right that NFIB imposed an actual requirement to purchase insurance, then we have moved beyond the ambit of Jacobson. Certainly, we are not anywhere near close to a Buck v. Bell style mandate. But if Section 5000A “commands individuals to purchase insurance,” people no longer have a choice.

Recall that there were Due Process Clause challenges to the ACA’s mandate. And those challenges were uniformly rejected. Why? Because a purchase mandate to buy insurance simply required people to part with some amount of money. That deprivation of property, by itself, was not enough to trigger a violation of the Fourteenth Amendment. Indeed, a mandate to purchase broccoli would likewise be valid under the Fourteenth Amendment. A mandate to eat broccoli would be very different, and would likely run afoul of the Due Process Clause.

But the question in NFIB did not concern the Due Process Clause. The question presented considered whether Congress had the powers to impose a purchase mandate under its Commerce and Necessary and Proper Powers. Part III.A of NFIB found that Congress lacked such a power.

Today, could Congress give people a “choice”: get vaccinated against COVID-19 or pay a nominal penalty? I think such a federal law would be valid under the Due Process Clause, in light of Jacobson. But Congress would not have the power to enact this law under its Commerce and Necessary and Proper Clause authorities.

At this point, some astute reader may ask about California v. Texas: Josh, how can the post-2017 ACA impose a mandate if the penalty is $0? Part III-A of NFIB considered Section 5000A(a) standing by itself. The plaintiffs never challenged Section 5000(b) as unconstitutional. And, the Court’s analysis in Part III-A did not consider the penalty; it focuses entirely on the mandate in Section 5000A(a). That analysis applies in the same fashion to the pre-2017 ACA as it does to the post-2017 ACA. The astute reader may now asks a different question: Josh, how can anyone be injured by the penalty-less mandate? In my view, the injury in fact from NFIB was premised on the mandate, standing by itself. And, that injury in fact in 2020 is more severe than the injury faced in 2012. The dialogue continues: Josh, how can the Court issue a remedy to enjoin the enforcement of a penalty-less mandate. That question concerns the other two prongs of the standing inquiry: redressability and traceability. The Cato amicus brief carefully separated these prongs, which are, regrettably, often merged. First, we discussed injury in fact. Later, we considered redressability and traceability in the context of severability–what Steve Sachs called the “bank shot” theory of standing. I think the injury in fact argument is on solid ground. But I freely concede that the latter two elements are much tougher.

I’ve given the issue of mandates some thought. The ideas in this post have been floating in my head for some time. I’m grateful to have the opportunity to expound on them here. But, above all else, the Supreme Court needs to clear up the relevance of Jacobson. It may be one of the most misunderstood cases in the modern era.

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Today, the Pennsylvania Secretary of State certified the final count for the presidential election. At this point, the Supreme Court likely has no urgent need to decide any of the pending cases on its docket. I’m not quite sure that the cases are moot–it ain’t over till January 20–but the likelihood of the Supreme Court intervening are slim to none.

In time, Circuit Justice Alito will likely deny or dismiss any pending cases on his own, without referring the cases to the full Court. As a result, there will be no opportunity for Justice Barrett to opine on these cases. Thus, we may never find out whether she would have recused on the various election cases. Just as well.

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The University of Maryland School of Public Policy School is apparently about to require faculty members to add a statement to their syllabus; here’s the cover e-mail, which I got from a source that appears to me reliable. (I tried to check with the e-mail’s official sender and with the school’s media relations people to confirm its authenticity, and haven’t heard back from them.)

Dear faculty,

As you know from previous emails and communications, the School of Public Policy has committed to creating a syllabus statement with regard to Diversity, Inclusion and Belonging.

The committee working on AR Action 6 has been developing this syllabus statement, which will be mandatory for all syllabi starting in Spring 2021.  We have worked with the DIB committee and the Faculty Diversity committee for input and we now seek input from the faculty as a whole.  You can view the final draft here.

Please let us know if you have any comments or feedback by Friday December 4th.

AR Action 6, one of “SPP’s Nine Antiracist Actions” provides,

The team has drafted, and circulated for feedback, a mandatory diversity and inclusion syllabi statement to be implemented in Spring 2021. We are also in the process of reviewing syllabi within the school with regard to diverse content. Additionally, the team is in the process of creating a database of ideas and resources such as readings, cases, speakers, data sets etc. to assist faculty in improving anti-racism and DIB course content.

And here’s what appears to be the final draft of the required syllabus materials, to be set forth in the professor’s voice (“my” and “we,” rather than just “The official policy of the school is …”):

Diversity Inclusion and Belonging in the School of Public Policy

Commitment to an Inclusive Classroom

It is my intent, as well as the stated policy of the School, that students from all backgrounds and perspectives will be well-served by this course. The diversity the students bring to this class will be seen and treated as a resource, strength and benefit. Materials, discussions, and activities will respect all forms of diversity. All students are expected to promote this aim through their words, actions, and suggestions. If something is said or done in this course, either by myself, students, or guests, that is troubling or causes offense, please let me know right away. The impact of what happens in this course is important and deserving of attention. If you ever do not feel comfortable discussing the issue directly with me, I encourage you to bring the issue to an advisor, administrator or the School of Public Policy Equity Officer.

Pronouns and Self Identification

We invite you, if you wish, to tell us how you want to be referred to, both in terms of your name and your pronouns (she/her, he/him, they/them, etc.). The pronouns someone indicates are not necessarily indicative of their gender identity. Visit trans.umd.edu to learn more.

Land Acknowledgement

We acknowledge that we are gathered on the stolen land of the Piscataway Conoy people and were founded upon the erasures and exploitation of many non-European peoples. You can find more information about the Piscataway Conoy Tribe at https://ift.tt/397TSky. For more information about the University of Maryland’s project for a richer understanding of generations of racialized trauma rooted in the institution visit https://go.umd.edu/SNW.

Suggested placements: We suggest this statement should be placed just prior to or after the learning outcomes in the syllabus as well as prominent within your ELMS site. Faculty should vocally review these statements within class as well.

Conspicuously omitted, of course, is any acknowledgement of faculty or student academic freedom. What if a faculty member doesn’t endorse the land acknowledgment statement, perhaps because he takes the view that conquest of land and the displacement of peoples is the norm in human history (might the Piscataway Conoy have “stolen” land from others who lived there before?), and not something that he thinks merits particular condemnation or explicit attention? Or what if he’s skeptical of claims of “generations of racialized trauma rooted in the institution”? The school may have its own view of the matter, but one principle of academic freedom is that faculty need not endorse all the views that the school endorses, and cannot be compelled to publicly make such an endorsement.

Now presumably the first paragraph, by committing to “respect all forms of diversity,” commits itself to respecting diversity of opinions (religious or secular) as well—though apparently not diversity of views on “land acknowledgement.” But how exactly can an honest faculty member commit to having all class materials respect all forms of diversity, given that many important source materials may well express views that sharply condemn various groups (political, religious, and otherwise)? And what about students that want to express views condemning, rather than respecting, various belief systems (Marxism, libertarianism, jihadist Islam, conservative evangelical Christianity, traditionalist Catholicism, scientific atheism, etc.)?

Students and faculty are apparently expected to avoid doing or saying anything “that is troubling or causes offense.” After all, others are invited to “let [the professor] know right away,” and perhaps inform “the School of Public Policy Equity Officer,” when such “troubling” or “offens[ive]” things are said; such reporting policies usually apply to things that an institution condemns, not things that it views as neutral and permissible.

But how can one have an honest discussion about “Ethics and Moral Issues in Public Policy” (to give the subtitle of one course) without someone expressing views that are “troubling or cause offense,” or that suggest a lack of “respect [for] all forms of diversity”)? Or how about “Contemporary Issues Under the Rule of Law”:

“Fake news” and freedom of the press, money in electoral politics, voter photo ID laws and political gerrymandering, continued racial segregation in public schools, privacy on the street and in school, holding public officials accountable for egregious constitutional violations, and unequal justice for the poor are all thorny issues of public policy that have found their way into American courts. This course examines these and other current issues presented to the courts in a format where students evaluate and opine on the competing legal and policy arguments in class and in papers as if they were the empowered judicial authority. The course also provides a broad overview of the ways American courts function as well as an opportunity to visit with a federal judge, hear the experiences of former jurors, and possibly visit a landlord-tenant court in action.

How does one candidly and thoroughly “opine on the competing legal and policy arguments”  about, for instance, “continued racial segregation in public schools”—or even “‘fake news’ and freedom of the press”—without the possibility of saying things that are “troubling or cause[] offense,” or even that fail to “respect all forms of diversity”? (What if one thinks that continued underrepresentation of some racial groups, and overrepresentation of other racial groups, in certain academically selective programs stems from different cultural norms among various racial groups?) This list could go on, but I think these examples make the problem pretty clear.

Note that I’m not opining here on the pronoun question; knowing how a student prefers to be addressed and referred to is actually useful to professors. If the policy requires the professor to refer to a student using the student’s preferred pronoun, that’s a more difficult question; I think there might be some reasonable latitude for universities to control how their faculty address students personally, and perhaps even how faculty talk about particular students, though I think the matter is complicated. But here I’m focusing on the compelled express ideological statement—the one about the Indian land—as well as the rules for how professors and students are to talk about the substantive issues in the class.

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