Category: reason

 

If you’re a libertarian like me, elections in the US two-party system often come down to choosing the lesser of two evils. This one is no exception. Both major-party candidates have serious flaws. But Democratic candidate Joe Biden is far preferable to Donald Trump. And that’s true based entirely on ideology and policy—without having to consider Trump’s corruption, his tweets, or his awful personality. Judged from the standpoint of promoting liberty, justice, property rights, and human welfare, the choice is clear. Trump has the edge on a few issues, but they are greatly outweighed by the ones where he doesn’t.

Before delving into the comparison between the two options, I should note I am not claiming  citizens have a moral duty to vote for Biden, or indeed to vote at all. To the contrary, I deny there is any duty to vote, and therefore have no quarrel with anyone chooses not to do so because they prefer to devote their time and effort to other activities, and especially if they choose to abstain because they lack the knowledge to make a well-informed choice.

But those who do choose to vote have an obligation should try to make at least a reasonably informed choice. And, at least in most cases, they should vote for the least-bad alternative among those with a realistic chance to win. I defend the morality and rationality of lesser-evil voting in some detail here.

To briefly summarize, Biden has significant advantages over Trump when it comes to immigration, trade, property rights, government spending, and maintaining relationships with liberal democratic allies. These readily outweigh Trump’s edges on judicial appointments and certain types of taxation and regulation. Though I won’t cover it here, Trump’s undermining of liberal democratic norms is also a menace, even if it hasn’t yet led to many concrete policy actions. I explained why in a 2018 post.

This piece admittedly comes late in the election process; I admit I would have done better to write it sooner. But many millions of people still haven’t voted. And I suspect that may include a disproportionate percentage of undecided voters. For those who have already voted, I hope this work might still have value in terms of understanding where the two major parties stand from a libertarian perspective.

Where Biden is Better

If there’s one area where there’s a truly enormous difference between the two candidates, it’s on immigration. Trump has exploited the xoronavirus crisis to make the US more closed to immigration than at any other time in our history. His most influential immigration policy adviser, Stephen Miller, has made clear the administration plans to continue these restrictions indefinitely. Moreover, Miller has a stack of still more onerous immigration restrictions he intends to push through if Trump is reelected. Even before the current crisis, Trump massively slashed refugee admissions to a mere 18,000 per year (down from about 110,000 under Barack Obama), imposed cruel and bigoted travel bans, and imposed all sorts of barriers to legal immigration. His administration has even used Kafkaesque bureaucratic tricks like rejecting visa applications if any line is left blank (such as a line for a middle name left empty by a person who doesn’t have one).

The costs to human liberty here are enormous. Trump’s expanded immigration restrictions forcibly consign hundreds of thousands of people to lives of poverty and oppression, simply because they made the mistake of being born to the wrong parents or in the wrong place. They also impose huge economic costs on both immigrants and natives. Immigrants make major contributions to American economic growth and innovation. The scale of economic harm caused by the administration’s immigration restrictions  greatly outweighed any possible benefit from its deregulatory actions elsewhere—even before the former was ratcheted up during the pandemic.

Moreover, immigration restrictions severely constrain the liberty of natives as well as immigrants. Native victims include Americans who seek to hire, work with, and otherwise interact with immigrants, those whom Trump’s travel bans and other restrictions have cut off from their families, and even many citizens detained and deported thanks to the paucity of due process protections in the immigration enforcement system.

Nor can these moves be rationalized by analogizing the US government to the owner of a private house who has a right to keep people out for whatever reason he wants. Such analogies are deeply flawed, and—if taken seriously—would justify draconian restrictions on natives’ liberty, no less than that of immigrants. No libertarian—or any kind of liberal—should accept the dangerous idea that the state is entitled to such sweeping power.

Biden is far from perfect on immigration issues. But he plans to reverse pretty much all of Trump’s new immigration restrictions, plus promote further liberalization, such as increasing the refugee cap to 125,000. The latter move alone will save over 100,000 people per year from poverty, oppression, and sometimes death. Freeing over 100,000 per year from a lifetime of oppression is enough to outweigh a multitude of sins elsewhere.

Moreover, virtually all of Trump’s immigration actions are the product of unilateral executive action. Therefore, Biden could reverse them without getting any new legislation through Congress. And, obviously, the odds of immigration liberalization getting through Congress are clearly higher if Biden wins than if Trump is reelected. In the latter case, there would be virtually chance at all.

What is true of immigration is also true of trade. On this quintessential libertarian issue, Trump is the worst president of modern times. In addition to his trade war with China, Trump has also picked trade wars with numerous US allies, including Canada, Mexico, the European Union, and South Korea, among others. The costs include some $57 billion in annual added expenses for American consumers, and massively reduced the value of American businesses, to the tune of hundreds of billions. And, once again, these costs greatly outweigh any plausible estimate of benefits from Trumpian deregulation elsewhere, which even the administration itself estimates at only about $50 billion for Trump’s entire term (thus, about $12.5 billion per year).

Biden’s trade policies are far from ideal. It is very possible he would continue many of the tariffs on China. and promote wasteful “Buy American” policies for government agencies. But he would likely at least drop the trade wars with US allies. That would be a major gain. Biden might also reverse Trump’s decision to drop out of the Trans-Pacific Partnership (TPP) trade agreement, which would greatly liberalize trade between the US and numerous nations in the Asia-Pacific region.

Like his immigration restrictions, Trump’s trade wars are almost entirely the result of executive action. Thus, Biden could very easily undo them—though joining TPP would require congressional ratification.

It was in some ways predictable that the Republicans might become an anti-immigration party, and perhaps even that they would turn against free trade. But, a decade ago, I would never have expected them to become worse than the Democrats on property rights. Yet, under Trump, that’s exactly what they have done.

Trump’s proposed border wall will, if fully built, require using eminent domain to take property from many thousands of people in the border area. It would be the largest government taking of private property in decades. Meanwhile, Trump’s Justice Department has abolished Obama-era limits on asset forfeiture, thereby facilitating the large-scale legalized plunder of property from people who in many cases were never even charged with any crimes, much less convicted.

Perhaps the biggest property rights issue of our time is exclusionary zoning, which bars many thousands of property owners from building new housing on their land, and artificially inflates housing prices, thereby cutting millions of people off from housing and job market opportunities. Trump has embraced full-blown NIMBYism, denouncing efforts to loosen zoning restrictions at the state and local level, and promising to use federal power to oppose them.

The Trump administration has also adopted anti-property rights positions in a number of important court cases, most notably claiming that the government has the right to deliberately flood thousands of homes during a hurricane without paying any compensation. As far as Trump is concerned, if the feds flood your house “only” once, they owe you nothing.

Biden and the Democrats are far from ideal on property rights issues. But Biden would terminate the awful wall-building project. He is also likely to restore Obama-era constraints on asset forfeiture (though it would be preferable to go further than that). On zoning, liberal Democrats have pushed through valuable reforms in several states and localities, with more potentially on the way. Biden would provide some modest federal incentives to facilitate that. At the very least, unlike, Trump he wouldn’t actively oppose deregulation in this vital area.

When it comes to government spending and deficits, Trump and congressional Republicans have a truly terrible record. They have enacted gargantuan expansions of spending, resulting in record peacetime deficits—and that was even before the coronavirus crisis. Trump has even openly said he doesn’t care about spending and deficits, because he won’t be in office anymore by the time the debt chickens come home to roost.

In fairness, however, things could be even worse if Biden is able to push through all the additional new spending he advocates. However, he might have difficulty doing that. We know from much recent history that congressional Republicans only work to constrain federal spending when there is a Democrat in the White House, as they did under Clinton and Obama. If Biden wins the election, there is a high likelihood that the Democrats will have only a very narrow majority in the Senate, or even (less likely) that the GOP will retain control in that chamber. Working with moderate Democratic swing-voters, the GOP can constrain Biden’s spending plans, and will have every incentive to do so. Indeed, even the mere prospect of Trump’s leaving office has already led Senate Republicans to regain some of their fiscal religion, as they have rejected both Trump’s and the Democrats calls for a massive new $2 trillion “stimulus” package.

I don’t want to paint a rosy picture here. Regardless of who wins, there are likely to be major spending increases, and an exacerbation of our already severe fiscal crisis. But this will be incrementally better if at least one major party works to limit the damage, perhaps in cooperation with moderates from the other. That is more likely to occur with Biden in the White House than Trump.

Trump’s trade wars, questioning of alliances, and other behavior, has also severely damaged relations with most of America’s allies, with the notable exceptions of the Israelis and the Gulf State Arabs. America’s image in most of the world is now worse than it has been for many years. Trump’s support of cruelties like family separation and police brutality has further damaged America’s image, and thus undermined our position in the international war of ideas against China, Russia, and other authoritarian regimes. In a variety of ways, Trump has made anti-Americanism great again!

Biden may not be able to fix all of this. But he would at lest end most of the trade wars, treat the allies with greater respect, and curb many of the Trumpian policies that most damage America’s image. That should matter for libertarians (and liberals of any stripe) because want liberal ideals to advance around the world, not just in one country. And it is important that brutal authoritarian regimes stop gaining influence at the expense of more liberal ones.

The harm Trump causes goes beyond the details of specific policy issues. Hostility to immigration, protectionism, gargantuan spending,  damaging relationships with allies, and even undermining property rights, are all facets of the more general trend towards big-government nationalism in the GOP. If Trump wins reelection, we can expect that trend to solidify and continue. Should Trump’s approach succeed politically even in the midst of a dire economic and public health crisis, other Republican politicians (and perhaps even some Democrats) will continue to imitate him. We can expect more of the same from the GOP for years to come.

By contrast, if Trump is defeated and repudiated, there is a real chance the GOP will have to reconsider its approach, and retreat from some of his awful policies. At the very least, that’s more likely in the event of a Trump defeat than if he beats the odds and wins.

On the other hand, a defeat for Biden is unlikely to improve the Democratic Party. To the contrary, it would probably give a boost to the more extreme “democratic socialist” faction led by Bernie Sanders, and others, whom Biden defeated in the 2020 primaries. Defeat for Biden would lend credence to their notion that there is no political payoff for moderation, and that the only way to combat Trumpian right-wing populism is the left-wing version of the same.

Where Trump is Better – And Why it’s Not Enough

While I think a Biden victory is preferable, overall, there are undoubtedly some areas where Trump is better. The two most significant are economic regulation in areas unrelated to immigration and trade, and judicial appointments.

While, for reasons noted above, his achievements in this area have been overstated, there is no doubt Trump has achieved some useful deregulation in some fields. The best—and severely underappreciated—example is Trump’s executive order permitting a wider range of expense compensation for kidney donors, which could save thousands of lives.

By contrast, Biden, if he wins, has a long list of new regulations he would like to enact. Among the worst are a $15 minimum wage (which would destroy thousands of jobs), and a nationwide version of California bill AB 5, which severely restricts “gig economy” employment by forcing Uber, Lyft, and other similar businesses to classify their workers as “employees” rather than independent contractors. Sadly, Trump has said he might support a $15 minimum wage, as well, though he is probably less likely to be serious about it than Biden.

As already noted, Trump’s deregulatory accomplishments pale in comparison to the harm he has done in other areas, such as immigration and trade. Even if Biden undoes all of the former, and adds significant further regulatory burdens, it will still be outweighed by his plans to undue Trump’s immigration and trade policies. Moreover, the more extreme Biden regulatory policies—including the minimum wage increase and a nationwide AB 5—would require legislation to enact. And it is unlikely that swing-vote Democratic senators like Manchin (West Virginia), Kirsten Sinema (Arizona) and Hickenlooper (Democratic candidate in Colorado) would support them, given the vast damage they would do to their respective states (which are heavily dependent on sharing industries and—especially in West Virginia’s case—low-cost labor). By contrast, Biden could probably undo Trump’s horrible immigration and trade policies through executive action alone.

What is true on regulation is also true on taxation. The 2017 tax bill passed by the GOP Congress with Trump’s backing includes some useful provisions, such as limiting corporate taxes, restricting the mortgage interest deduction, and constraining deductions for state and local taxes. Biden’s tax proposals would only partially reverse these measures, but would move us in the wrong direction, nonetheless. However, this too would have to get through Congress, which might moderate it. And the net negative effect is still much smaller than that of Trump’s immigration and trade policies.

As for the more general tax cuts in the 2017 plan (which Biden would repeal for those earning over $400,000 per year), they are—sadly—likely to be negated by irresponsible deficit spending. So long as that continues, if we don’t pay more now, that just means we (and our children) will pay more later (along with accumulated interest). Overpending will probably be a serious problem regardless of who wins. But for reasons already noted, it is likely to be even worse if Trump gets reelected.

Finally, there is the issue of judicial appointments. Here, I have to acknowledge Trump has made substantially better appointments than I expected back in 2016. Some have proven outstanding, like Gorsuch on the Supreme Court, and Judge Don Willett on  the Fifth Circuit. Most of the others are, at least, no worse than we could expect from a conventional GOP administration. Essentially, Trump has accomplished this by delegating judicial selection to more conventional conservatives, as opposed to seeking judges who reflect his own distinctive nationalist agenda (as I thought he might do, back in 2016).

Conventional GOP judges are by no means flawless, from a libertarian point of view. But with the extremely important exception of immigration-related constitutional cases, they do tend to better than Democratic-appointed judges in terms of both judicial philosophy, and positions on specific issues (e.g.—property rights, federalism, gun rights, campaign finance restrictions, and some others).

If Trump continues in the same vein in a second term, his appointees would likely be better than those Biden is likely to choose. That said, there are several important caveats, that diminish this advantage.

First, conventional conservative jurisprudence tends to be bad at protecting us against abuses of power in the areas of immigration, trade, and executive abuse of civil liberties in wartime and emergency situations—precisely the areas where right-wing nationalists and populists—like Trump!—are most likely to perpetrate evil. If Trump wins and the populist/nationalist ascendancy in the GOP continues, that trend will become worse over time.

Second, while Trump has been content to appoint conventional conservatives to the judiciary so far, that can change over time. Already, his most recent Supreme Court list includes several dangerous big-government nationalists deeply hostile to civil liberties, such as Senators Josh Hawley and Tom Cotton. Recent appointee Amy Coney Barrett is not of the same ilk. But her appointment clearly offers more hope to social conservatives and perhaps nationalists than libertarians.

More generally, over time judicial appointments come to reflect a party’s overall ideological priorities. The more big-government nationalism, with an admixture of social conservatism, comes to dominate the GOP, the more that will eventually be reflected in judicial appointments. Even if it doesn’t happen under Trump, it is likely to come to fruition under the next nationalist GOP president, who could easily be either Hawley or Cotton! As discussed above, this dangerous development is more likely to be avoided if Trump is defeated and repudiated.

The possibility of court-packing is another factor to consider. If it happens, I think it would be a terrible development, likely to undermine the entire institution of judicial review. The threat should not be ignored. However, Biden’s gyrations on the subject suggest he doesn’t really want to pursue this option, which he dislikes on principle, and could pose political dangers because of it’s unpopularity. Even if he chooses to try, this is another measure that would have trouble getting through a closely divided Senate.

Even a small chance of court-packing should be taken seriously. But it’s not enough to outweigh all the evil done by Trump. Not even the best possible Supreme Court justices can do enough good to outweigh the hundreds of thousands of lives blighted by Trump’s immigration and trade policies.

I will not try to deal with Biden and Trump’s respective approaches to the Covid crisis. Suffice to say that I am not as confident as many Biden supporters that his policies will work better than Trump’s. At the same time, they can hardly be worse than that of a president who often tries to deny the problem even exists. Ultimately, the best way to end the crisis is to accelerate the development and deployment of a vaccine. I see no reason to think Biden will be worse on that front than Trump, and some reason to hope he might be better. For example, a less nationalistic and xenophobic administration might be more willing to cooperate with allies on vaccine development and distribution.

We end where we began. The election presents with a choice of evils. But Biden is by far the lesser evil of the two. In some key areas, he could even be a positive good. And, as promised, I have defended that conclusion entirely without reference to Trump’s personal behavior, his corruption, or his Tweets. Getting that out of the White House would just yet more icing on cake!

 

 

 

 

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Democratic Gov. Gavin Newsom’s ability to dictate the conditions of reopening California’s economy is being challenged in a new lawsuit by small business owners who claim that the governor’s pandemic restrictions have endangered their livelihoods—as well as representative government in the state.

“We’ve been shut down since mid-March and that’s been completely devastating,” says Daryn Coleman, owner of Ghost Golf, who is currently suing Newsom. “I have bills racking up. I have balances building on everything.”

Coleman’s business, a ghost-themed miniature golf and family entertainment center in Fresno, California, was forced to close, alongside all other nonessential businesses in mid-March, when Newsom first issued his emergency declaration.

Since then, he’s been at the mercy of reopening conditions set by the governor and the California Department of Public Health (CDPH), which has kept Ghost Golf closed but for a few days in early June.

The state’s latest reopening criteria don’t give Coleman much hope of being able to open his doors again soon, let alone turn a profit.

The state’s latest Blueprint for a Safer Economy places counties in one of four color-coded tiers based on their number of new cases (case rate), and percent of COVID-19 tests coming back positive (positivity rate). The higher a county’s case and positivity rates are, the fewer businesses and social activities are permitted.

Fresno County is in the second-most-restrictive purple tier. That means Coleman’s Ghost Golf, like all amusement parks in the county, is closed. Gyms, dance studios, and aquariums can open at limited capacity and under certain conditions.

Coleman will have to wait until his county is admitted into the next least-restrictive tier before being allowed to open. Even then, he’ll only be allowed to operate at 25 percent capacity. That could be too little, too late for Ghost Golf.

“I honestly don’t know if I will survive even if I am allowed to reopen,” says Coleman, pointing to those capacity restrictions and the fact that business closures have already cost him busy summer months and the Halloween rush. “We’re a haunted-themed place and I lost October, which is usually a really good month for us.”

On Thursday, Coleman and Nieves Rubio, a restaurant owner in Bakersfield, California, sued Newsom, California Attorney General Xavier Becerra, Acting State Public Health Officer Erica Pan, and CDPH Director Sandra Shewry. Their lawsuit argues Newsom’s business closures are a usurpation of law-making powers reserved for the state’s Legislature.

“The governor is essentially making law. He has no authority to do that,” says Luke Wake, an attorney with the Pacific Legal Foundation (PLF), which has filed the case on behalf of Coleman and Rubio. “We’re now seven months into what is really autocratic rule, one-man rule.”

Newsom’s orders have invoked the state’s Emergency Services Act, which enables the governor to declare a state of emergency, and gives him sweeping powers to craft regulations and direct state agencies’ actions when responding to an emergency.

While this law consolidates executive power in the hands of the governor, argues Wake, it doesn’t create new executive powers that haven’t already been approved by the state legislature.

“The Emergency Services Act allows the Governor to coordinate all aspects of the executive branch of the state and to exercise all powers already granted to any executive agency of the state,” reads the lawsuit. “It does not grant the Governor the authority to take actions not otherwise authorized by the California Constitution or by statute.”

The legislature, Wake notes, has passed several bills related to the COVID-19 pandemic while contenting themselves to let the governor and public health officials set the pace of the state’s reopening.

The lawsuit PLF has filed on behalf of Coleman and Rubio is asking the court to declare the governor and CDPH exceeded their authority by ordering business closures and to strike down the entirety of the state’s Blueprint for a Safer Economy as unlawful.

During coronavirus, the courts have generally have been loath to strike down lockdown orders and business closures in response to plaintiffs claiming their individual rights have been violated, citing a 1905 U.S. Supreme Court case which upheld a mandatory vaccination law as a constitutional exercise of state’s police powers.

Lawsuits alleging that state governors and public health authorities have unjustly assumed powers reserved for state legislatures have proven more successful. State supreme courts in Wisconsin and Michigan shot down their governors’ respective business closure orders for violating the separation of powers.

Every day, Coleman says he gets numerous emails and phone calls asking if his business is open yet. He hopes that this lawsuit will undo the restrictions keeping him from serving these customers, restrictions he considers arbitrary as well as financially ruinous.

“I can go work out at a gym. I can go get a massage if I want. I can go to a movie theater,” he says. “but playing laser tag or indoor miniature golf is too great a risk?”

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Libertarian Party (L.P.) state House candidate Bethany Baldes of Wyoming came just 53 votes away from winning a seat in 2018, in a race with fewer than 3,300 total votes cast. She was so close she’d been reported as the actual winner, over longtime Republican incumbent David Miller (then the House majority leader), before absentee ballots came in.

That’s one reason why Apollo Pazell, an L.P. political operative working the Wyoming races, says in a phone interview today that they began their ground operation in Wyoming this year well before absentee ballots were first cast.

Pazell sees the strong possibility of an actual victory for both Baldes and another state House candidate, Marshall Burt, based on surveying done by their door-knockers who are interacting with voters daily, including hitting all relevant houses at least four times. (Their door-knockers are masked and frequently tested, though Pazell says citizens often tell the canvassers to “take off the stupid mask.”)

Burt is facing one Democratic challenger, Stan Blake, in House District 39. Blake has held the office since 2007 and generally runs unopposed.

The L.P. has pursued a more active than usual set of tactics in Wyoming, following a long-term Pazell strategy of targeting elections with a small number of total voters needed to win and only one major-party rival. The state does present unique ground game problems, though: One of the districts the L.P. is vying to win with candidate Lela Konecny has roughly 3,000 voters spread out over a region “the size of Massachusetts,” he says. 

“We have six canvassers on the ground traveling the state, and a half-dozen to dozen phone banking volunteers all years long,” notes Pazell.

Outside organizations, including Wyoming Gun Owners, have been helping promote Baldes as well, attacking her Republican opponent Ember Oakley for Oakley’s concern over immunity provisions for citizens under the state’s “stand your ground” law that dissatisfied the hardcore gun rights group.

Pazell today talked up his team’s efforts for four L.P. candidates running for the Wyoming House against only one other major-party opponent, which increases their chances of big results or even a win. The fourth is Shawn Johnson in District 38, running against Republican incumbent Tom Walters, who won his last election with only 1,017 total votes. Johnson is also the state L.P.’s chair.

Local press has noticed the Libertarian action as well. The Casper Star-Tribune wondered last week, “Could Libertarians shake up Wyoming elections this year?”

The paper thinks they might:

This year might present the perfect opportunity for that to happen. As Democrats work to capture as many moderates as possible from the state’s Republican supermajority, Libertarians seek to tap into the state’s already massive wellspring of conservative voters who are potentially fed up with the current disarray of the Wyoming GOP, which has been plagued by infighting and anemic fundraising efforts over the past year.

Baldes has received some endorsements from local Republicans over her opponent. Baldes told the Star-Tribune that “The two parties that are in place right now have been pushing the idea of taxes down our throat to the point where constituents have this idea that there’s no way forward without raising taxes….Having Libertarians in office will allow us to keep Republicans honest. They no longer can hide behind a name and talk about non-conservative ideas.”

The L.P. candidates are pushing economic issues mostly, Pazell says. “Wyoming is in a very drastic economic situation,” he says, between COVID-19 and a collapse in the state’s mineral industry. Other politicians, he says, are quick to call on more corporate, sales, and income taxes as a solution, which the Libertarians are not. “We have a detailed plan involving improving [the state’s] investment portfolios and cutting costs in a responsible way.”

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In the wake of the police killing of George Floyd in May, activists and criminal justice reform advocates suddenly had momentum and mainstream attention on previously niche issues like qualified immunity, no-knock warrants, and public access to police misconduct records. 

State lawmakers responded to these nationwide demands for reform by introducing hundreds of bills. But how much of that momentum translated into concrete changes in American policing?

A database created by the lobbying firm MultiState and shared with Reason shows that, of the 283 policing reform bills introduced since May that the firm has tracked, 35 have passed.

The National Conference of State Legislatures (NCSL), a nonpartisan association of sitting state legislators, maintains a wider database of policing bills introduced since the death of George Floyd. Of the 653 bills tracked by the NCSL, 57 have passed.

“We’ve seen so much activity on policing reform at the state level since the end of May,” Chris Mattox, a senior policy analyst at MultiState, says, “even in a year when many states’ legislative sessions were interrupted or cut short by the COVID-19 pandemic. Given what we’ve seen so far, I expect to see a lot more legislation coming out of the statehouses when they reconvene next year.”

Those databases give a fairly comprehensive view of what happened in summer/early fall 2020, but not the whole picture.

This month, Virginia passed legislation banning no-knock raids, barring police from initiating searches during traffic stops if they allegedly smell marijuana, expanding civilian oversight of police departments, and making it easier to decertify officers found guilty of crimes or other misconduct.

As part of a larger reform package, Colorado eliminated qualified immunity for police, a disgraceful legal doctrine that frequently shields officers from liability in civil rights lawsuits.

California passed measures to ban chokeholds, require the state attorney general to investigate fatal police shootings of unarmed civilians, and increase oversight of county sheriffs. However, police unions managed to kill other proposals, such as one that would have given the state a way to decertify police officers. California currently has no power to permanently strip an officer’s badge, allowing problem cops to bounce from department to department. 

The New York legislature repealed a law that made police misconduct records in the state totally secret, a stinging defeat for police unions that had successfully defended and expanded the law for four decades. 

Similarly, Hawaii passed a bill in July that will make suspensions and firings of police officers public record. The new law also allows the state’s law enforcement standards board to revoke officer certifications. 

The Minnesota legislature passed a compromise bill that bans chokeholds and warrior-style training for police officers and creates a new office to investigate police killings and allegations of sexual assault committed by police.

New Mexico will now require every police officer in the state to wear a body camera.

However, civil liberties and criminal justice advocates didn’t see many of their highest priorities pass, let alone make it into bills.

“Overwhelmingly, the legislation we saw introduced in the wake of George Floyd’s murder was honestly pretty weak,” says Paige Fernandez, policing policy adviser at the American Civil Liberties Union.

Fernandez says most of the bills that were introduced were “backstop bills” that focused on what happens after police violence has occurred, rather than stopping them from happening in the first place.

One of the more common provisions passed by state legislatures was restricting police from using chokeholds like the kind that killed George Floyd. Delaware, for instance, created a new crime, “aggravated strangulation,” that applies to police officers. Utah and Iowa also restricted the use of chokeholds. The latter was one of the few bills introduced by a Republican. The vast majority of bills were introduced by Democrats.

The Department of Justice also announced this week that restricting chokeholds would be one of the certification requirements for police departments under a White House executive order issued in June.

The MultiState and NCSL databases do not include internal policy changes at police departments: The Omaha Police Department and the Las Vegas Metropolitan Police Department announced changes to their use-of-force policies to limit neck restraints. The Memphis Police Department announced it would no longer execute no-knock search warrants. 

City councils were active as well. In San Francisco, police will no longer respond to calls involving non-criminal matters. Louisville, where Breonna Taylor was killed by police, banned the use of no-knock warrants. Atlanta Mayor Keisha Lance Bottoms issued executive orders in June requiring police to use de-escalation tactics before using force, and requiring officers to intervene if they see another officer using excessive force. In Wisconsin, the Madison City Council voted to create a civilian review board and an independent auditor to oversee its police department.

Cities and school boards also wrestled with proposals to eliminate or shrink the presence of police in schools, which civil liberties groups have long argued contribute to the so-called school-to-prison pipeline. Several major cities—Minneapolis, Portland, Denver, Seattle, Oakland—eliminated school resource officer programs, while Chicago slashed its school police budget by more than half. 

But there was backlash as well. The Georgia legislature, for instance, passed a “peace officers bill of rights” that increased procedural protections for police officers. The legislation, opposed by civil liberties groups, seals records of unfounded complaints against officers and substantiated complaints that do not result in discipline. It also increases procedural protections for officers under investigation and creates a new crime for attacks against police or law enforcement property.

In September, Republican Florida Gov. Ron DeSantis announced legislation to increase penalties for crimes associated with protests and to block state funding to cities that cut police department budgets.

“The concern that I have, and I think a lot of advocates in policing reform work have,” Fernandez says, “is that in the 2021 legislative session, a lot of legislatures will try to absolve themselves of responsibility and say, ‘Look, we passed this package in emergency session in the summer of 2020 following the murder, George Floyd, we did our part.’ But they didn’t, and they have a long way to go.”

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The so-called “Switch in Time that Saved Nine” is a myth. Justice Owen Roberts cast his vote in West Coast Hotel v. Parrish before FDR’s Court-packing scheme was announced. But the conventional wisdom endures to this day. And, consistent with this conventional wisdom, pressure is forming on Chief Justice Roberts to force another “switch” to avert court packing. This “switch” could take the form of Roberts’s modifying his jurisprudence. Or, in a more extreme example, Roberts may resign if Biden wins to save the Court. Critically, however, the Chief should do everything in his power to ensure that the judgments of the Pennsylvania and North Carolina Supreme Courts stand. The specifics really aren’t important.

Is this conventional wisdom correct? If Chief Justice Roberts’s goal is to forestall Court packing, the most logical choice may be to rule for President Trump. (I generally presume that in controversial cases, the Chief casts votes based first on his idiosyncratic understanding of political equipoise; the best legal reasoning comes second, if at all). At least for the next 4 years, the Supreme and lower courts would be safe. And, perhaps, after four years of rulings that frustrate both sides of the aisle (Roberts is great at those!) the motivation for Court packing will fizzle out. Indeed, a four-year cooling off period may be just what the doctor ordered. In contrast, a ruling for Biden would accelerate the demand for Court packing. I still think some form of Court reform is inevitable, no matter what the commission recommends. Would anyone be willing to take a wager that there are still 9 Justices in the fourth year of a Biden presidency?

All things considered, perhaps the best way to keep the courts in their current form is with a Trump presidency, coupled with frustrating rulings. Deal with 2024 in four years.

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From Judge William Orrick’s opinion yesterday in Rock the Vote v. Trump (N.D. Cal.):

Executive Order No. 13,925 … announces a policy position expressing concern over allegedly biased content management by online platforms such as Twitter and Facebook and directs federal agencies to take various actions to attempt to combat this purported bias. These actions include filing a petition with the Federal Communications Commission (“FCC”) to propose rules that would narrow the civil immunities granted to online platforms under section 230(c) of the Communications Decency Act; proposing legislation to Congress that would place additional regulations on platforms; and assessing whether agencies can reduce the amount of money they pay to social media companies for marketing and advertising services…..

Plaintiffs’ novel First Amendment claims are a step removed from the typical kind. It is not that plaintiffs claim that their rights to free expression have been violated; instead, it is that the speech of on-line platforms like Twitter and Facebook have been chilled by the Executive Order, and as a result plaintiffs’ missions are frustrated and they have had to divert resources to combat misinformation on social media. As discussed below, I conclude that plaintiffs have failed to adequately allege a concrete or personalized injury to themselves traceable to the Executive Order or to show that enjoining or invalidating the Order would redress their alleged injuries ….

To establish Article III standing, “a plaintiff must show (1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Plaintiffs fail to satisfy each of the three standing requirements ….

First, plaintiffs have failed to establish that they have suffered an injury in fact that is concrete and particularized.

The posture of this case is unusual—plaintiffs do not allege that the Executive Order directly regulates them or their First Amendment rights or that they themselves are the targets of retaliation. Instead, they allege that online platforms are engaged in constitutionally protected speech by curating and fact-checking misinformation online; that the Executive Order was issued in retaliation for the platforms’ speech and threatens and punishes platforms for this speech; and that platforms are failing to correct misinformation, to the extent they otherwise would, out of fear of the Executive Order.

Plaintiffs state that they are personally injured as a result of the platforms’ failure to check misinformation for two reasons: (1) they have been deprived of their right to receive fact-checking speech from the platforms; and (2) they have been forced to divert resources to combat misinformation that is unchecked by the platforms. Because they are not directly impacted or targeted by the Executive Order, both of their theories of standing require them to preliminarily show some injury to the platforms. This is a difficult showing to make without evidence from the platforms themselves, and plaintiffs have not made this showing.

Plaintiffs have failed to establish an injury-in-fact to the platforms—a first step to establishing injury to themselves—based on a threat of enforcement and a chilling of the platform’s First Amendment speech. A plaintiff may establish injury-in-fact based on a threat of enforcement by alleging “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.” While a plaintiff may establish injury-in-fact based on a government action’s indirect “chilling” effect on First Amendment rights, she must still show that the government action is “regulatory, proscriptive, or compulsory in nature” and that she is “either presently or prospectively subject to the regulations, proscriptions, or compulsions” being challenged. Plaintiffs’ allegations fail to meet this standard because they do not establish that the Executive Order proscribes the platforms’ constitutionally protected speech or that the platforms face a credible threat of prosecution.

The Executive Order does not directly regulate or restrict the speech of online platforms. Instead, it outlines a policy goal of promoting unbiased content management on the internet and orders executive departments and agencies to take various steps that purportedly aim to further this goal. These steps include petitioning the FCC for a rule that might narrow the scope of section 230(c) immunity, proposing legislation that would place additional regulations on online platforms, and encouraging the FTC to bring claims against platforms for deceptive practices.

None of these actions proscribe any constitutional right because they do not restrict or regulate the platforms directly; they are simply steps that may or may not lead to additional regulations, restrictions, or liability at some uncertain point in the future, largely dependent on the actions of independent agencies and branches of government. Any potential enforcement based on these possible future regulations is far too speculative to give rise to a concrete or particularized injury at this point in time. See Laird v Tatum (1972) (noting that a plaintiff’s fear that an “agency might in the future take some other and additional action detrimental to [plaintiff]” was not enough to establish injury-in-fact).

At the October 21, 2020 hearing, plaintiffs argued that the Executive Order’s provisions directing agencies to interpret section 230(c) in line with the Executive Order and to assess their ad spending on social media were immediate threats sufficient to establish injury-in-fact. I disagree. Section 230(c) provides certain immunities in civil litigation. Executive agencies do not have a formal role in interpreting or enforcing section 230(c), making it unclear how these agencies’ internal interpretations of section 230(c) would concretely impact platforms.

Plaintiffs also allege that the Justice Department plans to submit amicus briefs promoting the Executive Order’s interpretation of section 230(c) in civil litigation matters, but this is not a concrete or immediate threat. It would remain up to the relevant presiding courts to determine whether to adopt such an interpretation in any particular case.

As to ad spending, while “a loss of funds promised under federal law[] satisfies Article III’s standing requirement,” the facts alleged here are too vague to establish injury-in-fact. It is not clear how much money, if any, federal agencies spend on social media advertising and, if so, on which platforms. Nor is it clear whether such spending is “promised under federal law” or part of more discretionary agency spending ….

Even if plaintiffs could establish an injury-in-fact to the platforms, they separately cannot show any personal injury traceable to the Executive Order because they have failed to demonstrate that platform speech has been “chilled” or curbed in any way. Where “a plaintiff’s asserted injury arises from the government’s allegedly unlawful regulation … of someone else, … causation and redressability ordinarily hinge on the response of the regulated (or regulable) third party.” When necessary elements of standing “depend[] on the unfettered choices made by independent actors not before the courts and whose broad and legitimate discretion the courts cannot presume either to control or predict” it becomes the plaintiff’s burden “to adduce facts showing that those choices have been or will be made in such manner as to produce causation and permit redressability of injury.”

Plaintiffs assert that, as a result of the Executive Order, platforms like Twitter have declined to fact-check or correct misinformation on their platforms, which has harmed plaintiffs by (1) depriving them of such speech; and (2) forcing them to spend resources correcting the misinformation themselves. But they have failed to allege facts to support their speculation that the Executive Order has depressed platforms’ content moderation activities. Judicially noticeable documents further undermine such a conclusion.

The only facts plaintiffs allege to demonstrate that the Executive Order has stifled planforms’ fact-checking activities are: (1) Twitter has not fact checked several of the president’s tweets about alleged mail-in voting fraud, which were posted after the Executive Order was issued; (2) Twitter placed a notice on an August 23, 2020 tweet in which the President called mail drop boxes “[a] big fraud”—noting that the tweet “violated the Twitter Rules about civic and election integrity”—but did not include a fact-check link on the tweet; and (3) On October 15, 2020, Twitter reversed a decision to completely block users from sharing a New York Post article regarding Hunter Biden and announced that it would simply place a notice on similar content in the future. These allegations are insufficient to establish causation.

Plaintiffs’ own allegations indicate that, prior to the existence of the Executive Order, Twitter only fact-checked President Trump’s statements about election fraud once—fact-checking just one out of four tweets in the Spring that plaintiffs allege were false or misleading. Twitter’s failure to fact check certain tweets after the Order was issued appears consistent with Twitter’s general practice, not a response to the Order.

Similarly, Twitter’s decision to place a notice on President Trump’s August 23, 2020 tweet and tweets related to the New York Post Hunter Biden story, rather than including a fact-check link or blocking the story entirely, does not plausibly indicate a reduction in its fact-checking activities but a commitment to continue moderating the President’s content at its discretion. This conclusion is supported by additional public and judicially noticeable tweets indicating that Twitter has placed fact-check notices and links on several other election-related tweets from the President in the last few weeks.

Plaintiffs have also submitted supplemental information indicating that Facebook limited distribution of the New York Post‘s Hunter Biden story on the Facebook platform. As plaintiffs have not alleged any facts about Facebook’s pre-Executive Order fact-checking behavior, this single instance of Facebook engaging in fact-checking speech further undermines any conclusion that the Executive Order has reduced or chilled platform moderation activities….

from Latest – Reason.com https://ift.tt/3oLeqVw
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