Category: reason

Some people claim that there’s a woman to blame. But we know it’s the government’s fault.

“Margaritaville” parody written and performed by Remy; music tracks, mastering, and background vocals by Ben Karlstrom; video produced by Meredith and Austin Bragg.

Lyrics:
I’ve got more ice than Sweden
More Maker’s than Eden
More 12-year-old whites than Prince Andrew

I’ve got more melon squeezings
Than a Redskins team meeting
How I’ll make rent I haven’t a clue

Wasting away here in NoMargaritasville
Wishing I could sell cocktails-to-go
But the government claims we’d be a gross kind of place
Just like these where you can drink outdoors

I’ve got swanky Bacardi
More Tanq than a SWAT team
More fingers of Johnny than Amber Heard

If there’s no ceiling above ya
While you’re sipping I’ll cuff ya
I guess us going under is what they prefer

Wasting away here in NoMargaritasville
Fully stocked with lost shakers of salt
Some people wail we put too many in jail
Well these laws might be a good place to start

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Federal law-enforcement agents brutally enforcing the government’s will against a segment of the population on the outs with the current administration are “jack-booted government thugs,” the National Rifle Association (NRA) charged in communications with its membership. Questioned by the press, the gun-rights group’s Wayne LaPierre defended the heated words, saying “they are a pretty close description of what’s happening in the real world.”

But that was in 1995, and the federal agents in question were (very much still) out-of-control agents with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Now booted-and-helmeted Department of Homeland Security (DHS) agents battle protesters in Portland over the protests of local officials, adding fuel to the fire of violent demonstrations there and in a growing number of other cities. Yet the NRA and other past critics of federal overreach are silent.

The NRA’s tough 1995 language came at a time of increasing government restrictions on self-defense rights, including the 1994 “assault weapons” ban. Gun opponents pushed hard at the state and federal level to limit the types of firearms that Americans could own.

Enforcement of restrictive laws brought complaints about the government’s methods. As early as 1982, even before federal misconduct at Ruby Ridge and Waco, a report by the Senate Judiciary Subcommittee on the Constitution concluded that “enforcement tactics made possible by current federal firearms laws are constitutionally, legally, and practically reprehensible.”

That was the climate in which the NRA wrote in a fund-raising letter that “not too long ago, it was unthinkable for federal agents wearing Nazi bucket helmets and black storm trooper uniforms to attack law-abiding citizens.”

Twenty-five years later, “heavily armed men in camouflage fatigues advanc[ed] in a skirmish line along downtown Portland’s Main Street at 2 a.m., firing tear gas at fleeing crowds,” The Oregonian reports. “Federal officers clearing out nearby Lownsdale Square, yanking shields from some people and striking others with batons. Uniformed government agents pulling at least two people into unmarked vans off city streets for questioning.”

Federal agents still target Americans, but now it’s Homeland Security instead of ATF, and they’re after protesters supporting Black Lives Matter and police reform instead of gun owners and antigovernment activists. And that makes all the difference, unfortunately.

“Where is the NRA?” critics ask. It’s a valid question—one I posed to the organization. I received no reply.

More responsive was a representative of the Arizona Citizens Defense League (AZCDL), a grassroots gun-rights organization in the Copper State (full disclosure: I’m a member).

“While the AZCDL does not endorse the federal government parachuting into local jurisdictions, that said, if the local jurisdiction is malfeasant in protecting federal property, the federal government has a duty to act,” media coordinator Charles Heller told me.

Fair enough so far as it goes—the federal government does have the responsibility to protect its property. But while much of the increasingly violent street theater in Portland is now focused around federal buildings, that wasn’t the case when the feds arrived.

“Weeks of raucous demonstrations had nearly wound down in Portland at the beginning of July. Then President Donald Trump sent in federal forces,” notes The Oregonian. “The protests against police violence and systemic racism quickly grew bigger and louder.”

Since then, federal agents have often acted “with no city police in view and at least a block away from the federal courthouse that President Donald Trump and Acting Homeland Security Secretary Chad F. Wolf said they sent 114 federal officers to protect,” The Oregonian adds.

Reason‘s Nancy Rommelman—who got tear-gassed so you don’t have to—has documented the action on the ground in Portland. While she points out that the “vast majority of the protesters are peaceful,” she makes clear that a subset of them are not.

Now, violent protests—riots—are spreading beyond Portland to other cities. The federal government’s minions have successfully provoked a nasty reaction in Seattle, Austin, and elsewhere.

That was true in 1995, too. The NRA got its biggest pushback on criticism of federal agents after the Oklahoma City bombing, which was planned and carried out by extremists outraged over lethal federal abuses at Ruby Ridge and during the Waco siege. Then, as now, brutal federal tactics provoked a violent reaction with which defenders of the federal government tried to associate critics of official misconduct.

That’s a shame; if the critics had been taken seriously, we might have avoided more violence and loss of life. That is, correctly calling out “jackbooted thugs” no matter who their targets are could be a good way of trying to head-off a cycle of reactive violence, if the warnings are heeded.

But we live in a time when too many people are concerned about the treatment of their tribe rather than equal protection and decent treatment for everybody. An unfortunate number of gun rights supporters and people on the right who, quite rightly, raged against abusive ATF agents in the past are quiet about or even supportive of federal agents busting the heads of protesters. Maybe they see that as payback for the folks on the left who dismissed criticism of federal agents in the past but are now suffering their own jackbooted-thug moment.

But you can’t preserve a free society if support for limited government and civil liberties are situational, depending on who is on the receiving end. If you think it’s fine to set enforcers to rousting people if you dislike their causes, you’re just weaponizing the law and hoping that your side will, somehow, stay in power indefinitely. That’s a no-win tactic.

The NRA and its allies were right 25 years ago when they called out federal “jackbooted thugs.” But they need to learn to recognize the same thuggery when it’s directed against people they don’t like.

By the same token, the folks suffering from the current deployment of jackbooted thuggery should concede that they were wrong in the past when they defended such conduct on behalf of laws that they favored.

And all of us need to recognize that brutal government responses seem very effective at provoking more of the violence they’re supposedly intended to subdue. There’s a lesson to be learned when, again and again, enforcers sent in to suppress opposition produce more work for themselves and their colleagues.

In the past, now, and in the years to come, jackbooted thugs are in the wrong, whether or not we sympathize with those on the receiving end.

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Last Friday, the Supreme Court denied a Nevada church’s application for an injunction against Nevada’s restrictions on religious gatherings, adopted to help prevent the spread of Covid-19. Over the dissent of four justices in Calvary Chapel Dayton Valley v. Sisolak — Thomas, Alito, Gorsuch and Kavanaugh—the Court rejected the Court turned away an application for injunctive relief premised on the claim that Nevada is subjecting churches and other religious institutions to more onerous restrictions than casinos and other secular institutions. (Josh Blackman has a rundown of the dissenting opinions here.) The four liberal justices, and the Chief Justice, refused to grant the injunction.

This is not the first time the Chief Justice has turned away a religious organization’s challenge to state restrictions on religious gatherings. South Bay United Pentecostal Church v. Newsom produced a similar 5-4 split on the Court. Although the Chief Justice voted with the Court’s other conservatives in this term’s big religious liberty cases—Espinoza and Our Lady of Guadalupe School— he has not joined them in supporting injunctions against state laws that appear to discriminate against religious institutions by imposing less stringent restrictions on secular institutions. What gives?

Calvary Chapel and South Bay are not the only two cases in which the Chief Justice has rejected injunctive relief on the Court’s shadow docket this term. To the contrary, he has been doing it quite a bit, which would suggest his votes in Calvary Chapel and South Bay have little to do with his views of religious liberty and free exercise.

In just the past few months, the Chief Justice has opposed injunctive relief rather consistently across the board. He has voted to vacate lower court injunctions obtained by death row inmates seeking to stop their executions and against lower court injunctions altering state voting rules in Wisconsin and Florida. These votes have upset liberal commentators about as much as the Chief Justice’s votes in Calvary Chapel and South Bay have upset some folks on the Right.

The Chief Justice’s critics on both the Left and the Right both assume that the Chief Justice’s rejection of injunctive relief is a proxy for his view of the merits in the underlying disputes. I think this is a mistake. More likely, the Chief Justice’s rather consistent opposition to injunctive relief is another manifestation of the minimalist impulse I discussed here.

The pattern in the Chief Justice’s votes is fairly clear: He does not like injunctions. Indeed, he said as much in his opinion concurring in the denial of injunctive relief in South Bay.  Citing prior Court decisions, the Chief explained that a request for an injunction “demands a significantly higher justification” than a request for a stay or other more temporary relief. As the Chief explained, the power to issue an injunction should only be used “where the legal rights at issue are indisputably clear and, even then, sparingly and only in the most critical and exigent circumstances” (internal quotations omitted, emphasis added).

This is nothing new for the Chief. He has long been critical of the speed with which some lower courts are willing to grant injunctive relief. Just consider his opinion in Winter v. NRDC in which he chastised the U.S. Court of Appeals for the Ninth Circuit for adopting “too lenient” a standard for granting preliminary injunctions. This opinion was a shot across the bow of lower courts to exercise greater restraint. Since then, the Chief Justice has largely stuck to his guns.

Agree with him or not, the Chief Justice has been rather consistent in his skepticism of injunctions, both those favored by conservatives and those favored by progressives.

The point of this post is neither to defend nor criticize the Chief Justice. It is rather an attempt to provide a more accurate account of his jurisprudence than is provided by much political commentary. As I see it, some commentators are too quick to assume political or ideological motivations for judicial behavior, particularly for judicial behavior they do not like. Such accounts do more to obscure than reveal what is really going on. If you overlook the Chief Justice’s minimalist impulse, you cannot understand him.

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Republicans ready the CARES 2 Act. Republican leaders in the Senate, White House Chief of Staff Mark Meadows, and U.S. Treasury Secretary Steven Mnuchin spent the weekend putting the “finishing touches” on the next round of coronavirus-related spending, Meadows told reporters on Sunday night. Senate Majority Leader Mitch McConnell is slated to introduce it this afternoon.

At a cost of $1 trillion, the new GOP spending package is expected to include checks for all Americans, the continued provision of federal unemployment benefits (albeit at a reduced rate of around $200 per week, down from the current $600), and more Paycheck Protection Program loans, as well as initiatives to reopen schools and to test and trace for COVID-19. It will also include business tax credits.

About $105 billion in spending is slated for schools and $16 billion for test-and-trace efforts, reports ABC News.

The latter program was one of several that divided Republicans:

President Donald Trump had insisted on a payroll tax cut, which caused some delay, but after the pitch met with opposition from many Republicans and Democrats alike, the proposal was dropped. Mnuchin acknowledged over the weekend that the tax incentive did not provide immediate relief, unlike the planned second round of direct payments to Americans with modest incomes. Likewise, the administration caved on an effort to zero out any new funding for testing, tracing, and the major federal health agencies involved in fighting the pandemic.

The bill, being called CARES 2, is an extension of the $2.2 trillion Coronavirus Aid, Relief, and Economic Security (CARES) Act that Congress passed back in March. CARES part one is set to expire on July 31.

For a little bit on how the first round of federal COVID-19 spending has gone in practice, see these past Reason stories:

• “There Is Literally One Guy Overseeing Nearly $500 Billion of Emergency Coronavirus Spending“
• “The Feds Sent More than 1 Million Coronavirus Stimulus Payments to Dead People, GAO Says“
• “Did Trump’s Coronavirus Stimulus Save 51 Million Jobs? The Claim Relies on Shaky Math and Questionable Economics.“

The Democrat-led House of Representatives passed a follow-up to the CARES Act—called the HEROES Act—back in May, but it hasn’t made any leeway in the Republican-controlled Senate.

“It was largely seen as too expensive, costing over $3 trillion,” notes Jim Wang at Forbes. “That’s a big gap they need to cross during a short window for negotiations.”

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FREE MINDS

Gun rights groups by and for black Americans appear to be growing in popularity. “Phillip Smith, president of the National African American Gun Owners’ Association, said his organization’s annual membership has increased by up to 2,000 new members per day—a figure he used to see annually,” reports Politico. “His organization has grown to more than 30,000 members this year and has an online following of nearly 90,000 people.”

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QUICK HITS

NEW from me: For the last decade the Miami-Dade State Attorney’s Office has been pushing defendants to donate money to “charities” it created and for which it makes decisions. https://t.co/1Hemm5lAib

— Danny Rivero (@TooMuchMe) July 27, 2020

• Newly released research finds “no measurable difference in the number of coronavirus cases among children in Sweden, where schools were left open, compared with neighboring Finland, where schools were shut.”

• More on how mutual aid groups are seeing a big coronavirus-era resurgence.

• It’s time to repeal mandatory minimum sentencing laws, in New Jersey and beyond.

Vermin Supreme Institute

We added the word Institute to my name!

We will be instituting stuff.

The 'the' is implied!

(Of something something is also implied!)

Grand Opening this Monday, July 27!!

countdown:

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— Vermin Supreme (TM) (@VerminSupreme) July 27, 2020

• RIP Regis Philbin.

 

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Police in Golden Valley, Minnesota, used drones to see if anyone was bathing nude or topless on a secluded beach on Twin Lake. Nude and topless sunbathing is illegal, but bathers have been stripping off at that beach for decades. Police Sgt. Randy Mahlen told a local TV station that using drones to police nude sunbathing is “no different than a surveillance camera in a public place for a high-crime area.”

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[This is a serialization, with slight updates, of my 2012 article on the subject; for the Introduction (which also discusses my ambivalence about such laws), see this post.]

I talked earlier about laws that seem to protect a broad range of employee speech; now we turn to ones that seem to be narrower, either because they protect “political opinions” without discussion speech or political activity, because they protect only party affiliation, or because they protect only election-related activities.

[A.] Holding Political Opinions or Beliefs—New Mexico, (to Some Extent) Montana, and Harford, Howard, and Prince George’s Counties (Maryland) and Lansing (Michigan)

New Mexico bars discrimination based on “political opinions.” This could be read broadly, to include discrimination based on speech expressing political views, or narrowly to include only discrimination motivated by disapproval of an employee’s beliefs and to exclude discrimination motivated by worry that the employee’s speech expressing those beliefs is disruptive to the business.

New Mexico: [It is a felony for any employer of an employee] entitled to vote at any election, [to] directly or indirectly discharg[e] or threaten[] to discharge such employee because of the employee’s political opinions or belief[s] or because of such employee’s intention to vote or refrain from voting for any candidate, party, proposition, question, or constitutional amendment.

[It is a felony for any employer of an employee] entitled to vote at any [municipal] election [to] directly or indirectly discharg[e] or penaliz[e] or threaten[] to discharge or penalize such employee because of the employee’s opinions or beliefs or because of such employee’s intention to vote or to refrain from voting for any candidate or for or against any question.

Harford County, Howard County, and Prince George’s County (all in Maryland, and containing about ¼ of the state’s population) also ban discrimination based on “political opinion,” defined as “The opinion of persons relating to government or the conduct of government or related to political parties authorized to participate in primary elections in the state.” Lansing, Michigan, bans discrimination based on “political affiliation or belief,” without defining the terms.

Montana also imposes a similar rule for government contractors, and for health care facilities (including private facilities); the language seems broad enough to bar both discrimination against patrons and discrimination against employees or applicants for employment:

Montana: Every state or local contract or subcontract for construction of public buildings or for other public work or for goods or services must contain a provision that all hiring must be on the basis of merit and qualifications and a provision that there may not be discrimination on the basis of race, color, religion, creed, political ideas, sex, age, marital status, physical or mental disability, or national origin by the persons performing the contract.

All phases of the operation of a health care facility must be without discrimination against anyone on the basis of race, creed, religion, color, national origin, sex, age, marital status, physical or mental disability, or political ideas.

The Montana Constitution provides that “Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas,” but it’s not clear whether the ban on discrimination “in the exercise of … civil … rights” include discrimination in employment.

[B.] Belonging to, Endorsing, or Affiliating With a Political Party—District of Columbia, Iowa, Louisiana, Puerto Rico, Virgin Islands, Broward County (Florida), Urbana (Illinois)

These laws bar employers from discriminating against employees based on party membership. Most of them also bar discrimination based on the party that the employees “endorse” (D.C., Broward, Urbana) or “affiliate” with (Puerto Rico, Virgin Islands), which seems to cover speech expressing support for the party.

District of Columbia: [No employer may discriminate against employees or prospective employees] based upon the actual or perceived … political affiliation [defined as “the state of belonging to or endorsing any political party”] of any individual ….

Iowa: A person commits the crime of election misconduct in the first degree if the person willfully [i]ntimidates, threatens, or coerces, or attempts to intimidate, threaten, or coerce, a person … [t]o exercise [or not exercise] a right under chapters 39 through 53 [including declaring party affiliation, Iowa Code Ann. §§ 43.41-.42]. (For an explanation of why this statute, which generally bans threats, likely also applies to threats of loss of employment, see item 8 in this post.)

Louisiana: No person shall knowingly, willfully, or intentionally: [i]ntimidate …, directly or indirectly, any voter or prospective voter in … any matter concerning the voluntary affiliation or nonaffiliation of a voter with any political party.

Puerto Rico: Any employer who performs any act of prejudicial discrimination against [an employee because he is] … affiliated with a certain political party, shall be guilty … of a misdemeanor ….

Virgin Islands: It shall be an unlawful discriminatory practice … [f]or an employer, because of … [the] political affiliation of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.

Broward County (Florida): It is a discriminatory practice for an employer: … [t]o fail or refuse to hire, to discharge, or to otherwise discriminate against an individual, with respect to compensation or the terms, conditions, or privileges of employment, because of a discriminatory classification [including “political affiliation,” defined as “belonging to or endorsing any political party”] … [except] where these qualifications are bona fide occupational qualifications reasonably necessary to the normal operation of that particular business or enterprise.”

Urbana (Illinois): It shall be an unlawful practice for an employer … [to discriminate against any employee or applicant] based wholly or partially on [an employee’s belonging to or endorsing any political party or organization or taking part in any activities of a political nature] … [except] where such factors are bona fide occupational qualifications necessary for such employment.

As an earlier post noted, Louisiana law also provides many employees protection against dismissal for political activities and not just for party membership.

[C.] Engaging in Electoral Activities—Illinois, New York, Washington

New York and Washington expressly bar employers from discriminating against employees for their election-related speech and political activities. (For more on another New York provision that may be relevant in non-election-related cases, see here.) Illinois law would likely be interpreted the same way, given the likelihood that threats of dismissal from employment would qualify as “intimidation” or “threat.”

Illinois: Any person who, by force, intimidation, threat, deception or forgery, knowingly prevents any other person from (a) registering to vote, or (b) lawfully voting, supporting or opposing the nomination or election of any person for public office or any public question voted upon at any election, shall be guilty of a … felony [and shall be subject to civil liability].

New York: (1) (a) “Political activities” shall mean (i) running for public office, (ii) campaigning for a candidate for public office, or (iii) participating in fund-raising activities for the benefit of a candidate, political party or political advocacy group … .

(2)(a) [No employer may discriminate against an employee or prospective employee because of] an individual’s [legal] political activities outside of working hours, off of the employer’s premises and without use of the employer’s equipment or other property [except when the employee is a professional journalist, or a government employee who is partly funded with federal money and thus covered by federal sta­tu­tory bans on politicking by government employees] … .

(3)(a) [This section shall not be deemed to protect activity which] creates a material conflict of interest related to the employer’s trade secrets, proprietary information or other proprietary or business interest …

(4) [A]n employer shall not be in violation of this section where the employer takes action based on the belief … that: … (iii) the individual’s actions were deemed by an employer or previous employer to be illegal or to constitute habitually poor performance, incompetency or misconduct.

Washington: No employer … may discriminate against an … employee … for … in any way supporting or opposing [or not supporting or opposing] a candidate, ballot proposition, political party, or political committee.

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