Category: reason

Class 2: Foundational Cases on Constitutional Structure (8/19/20)

• The Necessary and Proper Clause (115-116)

• McCulloch v. Maryland (116-128)
• Cabinet Battle #1 from Hamilton, an American Musical – Read the lyrics as you listen to the song
• The Commerce Clause (138-139)
• Gibbons v. Ogden (139-148)
• The “Bill of Rights” (152-153)
• Barron v. City of Baltimore (154-157)

Class 2: Mechanics of Adverse Possession: Tacking and Adverse Possession of Chattels (8/19/20)

• Howard v. Kunto, 95-102
• Adverse Possession against the Government, 102-103
• O’Keeffe v. Snyder, 103-110

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During a panel discussion led by Joe Biden at the Democratic National Convention on Monday night, Houston Police Chief Art Acevedo emphasized the need for “national standards” to prevent the sort of abuse that led to George Floyd’s death in Minneapolis on May 25. “This is a watershed moment, and we can’t lose this moment,” Acevedo said. “We have got to have action at the national level. We have got to have congressional action.”

Acevedo’s passing of the buck to Congress was unsurprising, given the deadly corruption in his own department, which he was reluctant to acknowledge and slow to address. But policing is primarily a local responsibility, and Acevedo should not get away with shifting the focus from his own manifest failures by calling on the federal government to intervene.

In recent months, Acevedo, who is president of the Major Cities Chiefs Association, has been presenting himself as an avatar of police reform, joining Black Lives Matter protesters in condemning racism and expressing outrage at Floyd’s death. “We will march as a department with everybody in this community,” he told local demonstrators in May. “I will march until I can’t stand no more.” But Acevedo’s response to a deadly 2019 drug raid shows a different sort of police chief, one who reflexively defends his officers when their actions have lethal consequences, credulously accepts their version of events, and denies the existence of a systemic problem even when their lies are revealed.

The operation that killed Dennis Tuttle and Rhogena Nicholas in their home on Harding Street does not fit the usual Black Lives Matter template. Tuttle and Nicholas were white, while Gerald Goines, the veteran narcotics officer who instigated the no-knock raid based on a heroin sale that never happened, is black. The incident nevertheless illustrates the same basic problems as a case that has figured prominently in the nationwide protests triggered by Floyd’s death: the shooting of Breonna Taylor, a black EMT and aspiring nurse, in Louisville, Kentucky, last March.

In both cases, police obtained no-knock warrants based on dubious evidence, broke into homes when the residents were asleep, responded with overwhelming force when their victims tried to defend themselves, and found no evidence of drug dealing. And in both cases, there was no body camera video to show what happened.

Acevedo’s initial response to the Harding Street raid was telling. Although it was clear right away that something had gone horribly wrong, he repeatedly praised the officers as “heroes,” uncritically regurgitated their account, and posthumously tarred Tuttle and Nicholas as dangerous heroin dealers, claiming neighbors had thanked the cops for finally taking action against a locally notorious “drug house.” As evidence of the couple’s criminal activity, Acevedo cited a telephone call in which an anonymous woman had reported that “her daughter was in the house, and there were guns and heroin.” He blamed Tuttle for the deadly gun battle, which injured four officers, even while acknowledging that the cops had opened fire first, using a shotgun to kill the couple’s dog immediately after entering the home. He indignantly rejected the suggestion that the officers might have been hit by friendly fire—a question that still has not been publicly answered.

Even after investigators discovered that Goines had invented the heroin sale that was the basis for the search warrant, Acevedo said he still thought the officers who killed Tuttle and Nicholas were heroes. He even bizarrely insisted that “they had probable cause to be there,” and he continued referring to Tuttle and Nicholas as “suspects.” A federal investigation later revealed that the neighbor whose phone call Acevedo cited as independent evidence against the couple had made the whole thing up.

To his credit, Acevedo rebuked the president of a local police union for implying, on the night of the raid, that the department’s critics were responsible for violence against cops. But instead of withholding judgment until the circumstances of the raid could be investigated, Acevedo presented the word of a corrupt, habitually deceitful officer as the unvarnished truth. In that respect, his attitude was no different from that of union officials who automatically defend officers accused of misconduct.

The fact that Goines, who had previously been accused of perjury, thought he could get away with a trumped-up drug raid suggested broader problems within the Houston Police Department’s Narcotics Division. So did the willingness of another narcotics officer, Steven Bryant, to back up Goines’ fake story. But even after the raid led to state and federal charges against Goines and Bryant, Acevedo said he saw no evidence of “systemic” failures, while simultaneously saying this sort of thing was apt to happen again.

“Police officers have been engaged in misconduct since the advent of time,” Acevedo told reporters in December. “Human beings have been sinning since…the days of Adam and Eve, right? I mean, we’re imperfect beings. I can’t guarantee that nothing will ever happen again….What I can guarantee is that, number one, we will continue to be vigilant in our processes and our systems and our audits….We will always ask the tough questions when we take a life. What I can tell you is that the chances of this being systemic are not going to happen because of the processes in the systems that we have.”

Last month, an internal audit report that Acevedo had tried to keep under wraps showed serious deficiencies in those “processes” and “systems,” revealing routine sloppiness, if not outright fraud, in the Narcotics Division’s records. On the same day, Harris County District Attorney Kim Ogg announced new criminal charges against Goines and Bryant, along with charges against four other former members of the Narcotics Division, including three supervisors. The prosecutors’ allegations suggested that Goines and other narcotics officers routinely built their cases on lies.

“Goines and others could never have preyed on our community the way they did without the participation of their supervisors; every check and balance in place to stop this type of behavior was circumvented,” Ogg said. “This was graft and greed at every step in the process, and prosecutors are making their way through the evidence one incident at a time….The new charges show a pattern and practice of lying and deceit. There are mountains [of] more evidence to review, and more charges are likely as we push into the next phase of our investigation.”

If that is not a “systemic” problem, I don’t know what would be.

Even the reforms that Acevedo announced in response to the Harding Street raid, including high-level approval of no-knock raids and a requirement that narcotics officers wear body cameras while executing search warrants, raise the question of why he did not take those steps sooner. The hazards of no-knock raids have been a topic of national discussion for decades, and it seems like a no-brainer to mandate video documentation of potentially lethal police operations. Acevedo’s belated safeguards hardly make him look like the forward-thinking, reform-minded police chief showcased at the Democratic convention.

Acevedo wants us to ignore all this and instead talk about “action at the national level.” But what sort of action does he support? He mentioned “a national database” (of what, exactly, wasn’t clear) and “use of force” rules that prohibit chokeholds. Congress does not have the authority to directly ban chokeholds, although it can encourage that policy by attaching conditions to federal grants, as the legislation backed by House Democrats would do. From Acevedo’s perspective, that reform has the benefit of being irrelevant in Houston, where the police department has prohibited chokeholds for decades and the mayor announced a seemingly redundant ban after Floyd’s death.

What about legislation that would abolish qualified immunity, the court-invented doctrine that makes it very difficult to hold police accountable for the use of excessive force by requiring plaintiffs in federal civil rights lawsuits to locate precedents with nearly identical facts? Acevedo is not exactly enthusiastic about that idea.

“We don’t support eliminating it,” he said during a June 18 interview on The View. “I don’t think that we’ll ever get to the point where we’d want to get rid of it completely, because we don’t want to create a situation where police officers will hesitate to take decisive action protecting our community. But we do believe that we have to explore how it can be adjusted to have greater justice and accountability in our country.”

Those sound like the words of a police chief who wants to get credit for paying lip service to reform without actually committing to changes that could have a meaningful impact. That is Art Acevedo in a nutshell.

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The Democratic Party Platform for 2020 is blunt about how it feels about the war on drugs:

It is past time to end the failed “War on Drugs,” which has imprisoned millions of Americans—disproportionately Black people and Latinos—and hasn’t been effective in reducing drug use.

That’s slightly stronger wording than the 2016 party platform, which also acknowledged that the war on drugs disproportionately impacts minorities and doesn’t stop drug use, but that’s really the only difference. Four years later, the Democrats are once again promising to chart a new federal course on cannabis policy and extolling the virtues of “prioritiz[ing] prevention and treatment over incarceration.”

While the platform says that “Democrats believe no one should be in prison solely because they use drugs,” it doesn’t call for the legalization of any drugs. As in 2016, the platform’s position on cannabis takes a cue from federalism: respect state laws, reschedule cannabis out of Schedule I (the category for drugs deemed dangerous, addictive, and non-medical). This is apparently the boldest position Democrats are willing to take, perhaps because Joe Biden does not support recreational marijuana legalization. Regardless of why, the official party platform remains behind the curve of the majority of Americans.

Instead of actually ending the drug war, the 2020 platform’s emphasis takes the same approach as the 2016 platform in calling for the expanded use of drug courts and diversion programs “for those struggling with substance use disorders.”

The problem: Drug courts, in practice, have been shown that they do not reduce policing encounters; some evidence supports the idea that they reduce incarceration rates or recidivism. A 2018 report from the Social Science Research Council (SSRC) analyzed drug court systems in the United States, the Caribbean, and Latin America, and found many cases where drug courts actually increased, rather than reduced, a drug users’ interactions with police and the criminal justice system. The SSRC analysis of five years of New York City drug courts determined that sentences for those who “failed” drug court were two-to-five times longer than those who just accepted a conventional sentence for drug possession. In other words, they would have been better off just pleading guilty.

The report found that the existence of drug courts in a community perversely causes police to focus on finding people to arrest for minor drug possession crimes, even absent evidence that these people actually had a drug addiction problem:

Evidence also suggests drug courts have led law enforcement to intensify its focus on people who use drugs but have either no or minor substance use disorders, which in turn has increased arrest and punishment for systematic drug use. A 2016 study of more than eight thousand cities and counties nationwide found evidence that local police increased attention to minor drug offenses in jurisdictions where drug courts were implemented.

Accordingly, research indicates many drug court participants do not have diagnosable or clinically significant substance use disorders and therefore are not in need of treatment.

And that’s a big, fundamental problem with how the Democratic Party platform is approaching drug use. It is assuming that every single person who is using an illegal drug is addicted and needs intervention. In order the get access to drug court, users are often required to plead guilty, surrender their rights, and “confess” to having an addiction, even if they are in fact just casual users.

The Democratic Party, as an institution, remains unwilling to accept and tolerate the existence of non-problematic recreational drug use. If it can’t even do this with cannabis, it’s certainly not going to accept the same is true of other Schedule I drugs, which means it’s not actually ready to end the war on drugs.

The Democrats say they don’t want to see people incarcerated “solely for using drugs,” but that’s what happens if you test positive for drugs while enrolled in drug court: you get incarcerated. Drug courts and compulsory drug treatment programs are enforced by men with guns, and you can’t end a war if you’re not willing to stop pointing guns at people.

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Brookings Institution economist Robert Litan has an insightful new article making the case for paying people to take a coronavirus vaccine, once one is approved and ready for distribution (as may well happen by sometime next year). I had been planning to write a piece making a similar argument. But Litan beat me to it, and he therefore deserves the credit for the idea. As he explains, this could save both lives and money, and is likely to be better than simply mandating vaccination:

When I was a child, doctors giving vaccine shots used to hand out candy or a little toy to take the sting and fear out of the shot. A similar idea could rescue the U.S. economy when one or more COVID vaccines are approved by the FDA and widely available for mass uptake.

Infectious disease experts, such as Minnesota’s Michael Osterholm, tell us that “herd immunity” – or the point at which the virus will quit spreading like wildfire – will be reached when at least 60 percent of the population is immune. A truly effective vaccine… will avoid the tragedy of the million-plus deaths it otherwise could take for the country to reach herd immunity.

Provided enough people take the vaccine when they can. Since no vaccine will be perfectly effective – Dr. Fauci has said he could live with a vaccine that was 75 percent effective, which could be optimistic – that means that at least 80 percent of the U.S. population (60 percent divided by 75 percent) must be vaccinated if the virus is to be tamped down to the point where enough people will feel safe to patronize service establishments and travel so the country and the economy can return to some semblance of normal.

But now that seemingly everything about the virus – its severity and whether to wear masks in public, to take two examples – has become deeply politicized, is there any hope of reaching that 80 percent threshold?

Not according to a poll by NPR/PBS/Marist released on August 14, which reported that more than one third – 35 percent to be precise – of Americans won’t take the vaccine when it is available, which means that the population take-up percentage would only be 65 percent, or well short of the 80 percent target. The take-up rates predictably differ by party, with 71 percent of Democrats saying they’ll take the shot versus 48 percent for Republicans…

In principle, a President Biden could take executive actions or seek legislation – assuming Democrats control both the House and Senate and the filibuster rule is abandoned – penalizing those who don’t take the shots (for example, by requiring vaccination certificates before entering most public spaces). But imposing any penalties on people who don’t take the vaccine at the outset of his presidency – even if the penalties were both effective and constitutional, which is not at all clear it would be – would aggravate polarization, conceivably cause violence, and prevent any healing of the country that Biden has promised to usher in….

The “adult” version of the doctor handing out candy to children, fortunately, points toward a solution: pay people who get the shot (or shots, since more than one may be required).

How much? I know of no hard science that can answer that question, but my strong hunch is that anything less than $1,000 per person won’t do the trick. At that level, a family of four would get $4,000 (ideally not subject to income tax) – a lot of money to a lot of families in these difficult times, and thus enough to assure that the country crosses the 80 percent vaccination threshold.

As Litan explains, even if we end up “overpaying” to get people to take the vaccine, it would still be a massive savings of money on net. Every day without herd immunity is a day when many lives are lost, and the economy continues to stagnate—costing us far more than vaccine payments would.

I agree with most of Litan’s analysis, and have a few points to add.

First, the poll he cites is far from the only one indicating many Americans will refuse to take a Covid vaccine. Other surveys paint a similar picture (see, e.g., here and here). It is possible that such attitudes will decline once a vaccine is actually available, and taking it holds out the promise of returning to normal life. Vaccination might also be incentivized by businesses requiring employers and/or customers to have vaccination certificates. But it’s hard to say whether either of these will happen quickly enough or on a large enough scale. Even a few weeks or months delay in getting to vaccine-driven herd immunity is likely to be extremely costly.

Second, many will be tempted to reject the idea of paying people to get vaccinated because vaccination is a moral duty we must fulfill in order to protect others against the disease. We have mandatory vaccination against other contagious diseases. Why not this one?

In principle, I agree. Mandatory vaccination against deadly contagious diseases can even be justified on libertarian grounds, overcoming the strong presumption against coercion. Libertarian political philosopher Jason Brennan has a good explanation of the reasons why.

But that which is justifiable in principle isn’t always the right approach in practice. Coercing tens of millions of unwilling people to get vaccinated is likely to be a huge and painful undertaking. It is far from clear that either the federal government or the states are up to the task. Currently, most mandatory vaccinations are imposed on children; parents can be relatively easily incentivized to permit them on threat that the children will otherwise be excluded from schools. Imposing mandatory vaccination on some 300 million (mostly adult) Americans is a far dicier proposition.

Moreover, using law enforcement to coerce so many people is likely to lead to serious abuses. If you believe (correctly) that police too often use excessive force, engage in racial profiling, and otherwise abuse their authority, imagine how often these things would happen in the process of forcing millions of people to take a vaccine.

It’s worth emphasizing that African-Americans—the group with the worst relations with police—are also disproportionately likely to be suspicious of vaccines. If mandatory vaccination leads to high-profile incidents of violence between police and the black community, it could simultaneously set back race relations and undermine the vaccination campaign.

If you think federal law enforcement officers can take up the slack from local and state police, you should remember that there aren’t nearly enough of the former to do the job. There are only about 100,000 federal law enforcement officers in the United States (compared to about 700,000 state and local ones), and most of them can’t simply be turned into full-time vaccination enforcers. Many of the federal law enforcement agencies we do have are notorious for their brutality and disdain for due process  and the kinds of abuses we recently saw  when they were deployed in Portland. A federally-enforced vaccination mandate might lead to the repetition of such events on a massive scale. Paying people to take the vaccine is likely to be more effective, more humane, and less dangerous than coercion.

I do have a few reservations about Litan’s analysis. First, as he recognizes, we don’t have a good way to gauge the right amount of payment to incentivize a sufficient number of people to take the vaccine. I tend to agree, however, that $1000 per person should be sufficient, perhaps even more than enough.  To the extent that, as Litan notes, the incentive is stronger for the poor, that’s a feature not a bug. For a number of reasons, poor people are more likely to get infected than the relatively affluent.

Finally, I am skeptical of Litan’s idea that the government should only pay a small percentage of the money up front, and defer the rest until enough people have been vaccinated to reach herd immunity. Doing so might lead many people to hold off on getting vaccinated until it is clear that enough others have done so that herd immunity is likely to be reached. In order to incentivize the fastest and most widespread possible acceptance, it would be better to pay all or most of the money up front, as soon as the individual in question gets vaccinated.

There are likely to be aspects of this idea that need more detailed consideration, including angles that Litan and I may have overlooked. I hope experts in various relevant fields will begin to consider these issues. The sooner the better.

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Rolling electric power blackouts afflicted as many as 2 million California residents last week as a heat wave gripped the Golden State. (It’s apparently eased up for now.) At the center of the problem is that power demand peaks as overheated people turn up their air conditioning in the late afternoon just as solar power supplies cut off as the sun goes down. In addition, output from California’s wind farms was erratic. Currently, about 33 percent of California’s electricity comes from renewable sources as mandated by state law. Until this summer, California utilities and grid operators were able to purchase extra electricity from other states, but the current heat wave stretches from Texas to Oregon so there was little to none available to make up for California’s power shortage.

According to the San Jose Mercury News, California electricity grid operators had warned in September 2019 that power shortages might become increasingly common when heat waves hit over the coming years. The current situation was thankfully not worse since California still has some natural gas power plants in operation that can be ramped up to supply energy when renewable supplies fail.

“Some folks in the environmental community want to shut down all the gas plants. That would be a disaster,” said Jan Smutny-Jones, CEO of the Independent Energy Producers Association, a trade association representing solar, wind, geothemal, and gas power plants, to the Mercury News. “Last night [Sunday] 60 percent of the power in the ISO [Independent System Operator] was being produced by those gas plants. They are your insurance policy to get through heat waves.”

Reuters reported that California’s grid operators estimated that peak electricity consumption earlier this week might exceed available supply statewide by as much as 4,400 megawatts—roughly equivalent to the amount needed to power 3.3 million homes.

In a particularly obtuse report on NPR’s Morning Edition today, Union of Concerned Scientists energy analyst Mark Specht asserted, “the solution is definitely not more natural gas plants. Really if anything this is an indication that California should speed up its investments in clean energy and energy storage.”

NPR reporter Lauren Sommer followed up by observing, “After all, he [Specht] said climate change is making heat waves worse, so burning more fossil fuels to deal with that is somewhat counterproductive.”

Completely ignored in the reporting is that California has been shutting down a huge source of safe, reliable, always-on, non-carbon dioxide–emitting, climate-friendly electricity—that is, nuclear power. In 2013, state regulators forced the closing of the San Onofre nuclear power plant that supplied electricity to 1.4 million households. By 2025, California regulators plan to close down the Diablo Canyon nuclear power plant that can supply electricity to 3 million households.

The problem of climate change, along with the blackouts resulting from the inherent vagaries of wind and solar power, are an indication that California should not only keep its nuclear power plants running but also build many more of them.

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Howard Bashman (How Appealing) notes:

Last night in the Bronx, Tampa Bay Rays relief pitcher Chaz Roe pitched to New York Yankees second baseman Tyler Wade with one on and two outs in the bottom of the ninth inning…. Wade hit a fly ball to center field that was caught to end the game. Thus, in this rematch, as at the U.S. Supreme Court, Roe prevailed.

Nothing on Planned Parenthood v. Casey, though.

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Laura Loomer, the far-right gadfly and conspiracy theorist, has prevailed in her bid to become the Republican Party’s candidate for Florida’s 21st Congressional District. She will face incumbent Rep. Lois Frankel, a Democrat, in the general election.

The district is heavily Democratic, and any Republican would be unlikely to win. The GOP can’t stop people from trying. Moreover, it can’t prevent insane racists like Loomer from pursuing elected office under the auspices of the Republican Party.

But Republican officials don’t need to openly embrace such people either. Unfortunately, both Rep. Matt Gaetz (R–Fla.)—a rising star in the GOP with an increasingly large public profile—and President Donald Trump have expressed support for Loomer. Gaetz even endorsed her during the primary, when the GOP technically had other options.

This is embarrassing because Loomer is a lunatic. She previously said that someone should create a “non Islamic” version of Uber so that she could avoid giving money to immigrant drivers. She celebrated the deaths of 2,000 migrants and expressed hope that more would die. She went to Parkland, Florida, on behalf of InfoWars to spread misinformation about the 2018 mass shooting, and also teamed up with far-right grifter Jacob Wohl.

She even posed for a picture with alt-right leader Richard Spencer at the DeploraBall event in Washington, D.C., on January 19, 2017. Spencer’s views were already well-understood by the public at that time, and Loomer’s caption on the picture makes it clear that she knows exactly who he is.

Some in the media frequently try to portray brash new Republicans as secret nazis: Jezebel implied that 25-year-old North Carolina House candidate Madison Cawthorn was possibly a white nationalist in part because his haircut is similar to Spencer’s. The case against Cawthorn rested on dishonest smears. The case against Loomer, on the other hand, is obvious and persuasive. Her associations with the alt-right, conspiracy theorists, and crazy provocateurs are direct and numerous. Republicans should want nothing to do with her.

The failure to ostracize Loomer matters, because many conservatives are currently trying to portray the Democratic Party as beholden to kooks of the far-left. For instance, after it was revealed that Women’s March organizer Linda Sarsour—an activist with anti-Semitic associations—had a small role at the Democratic National Convention, Trump surrogates asserted this proved that the Democrats are the party of division and hate. But former Vice President Joe Biden, the 2020 Democratic candidate for president, swiftly condemned Sarsour’s views. There has been no equivalent condemnation of Loomer from the right. On the contrary, she is being openly embraced.

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