Category: reason

Sweeping reforms signed into law by Florida Gov. Ron DeSantis on Tuesday will loosen or abolish occupational licensing regulations across more than 30 professions, cutting red tape for potentially thousands of workers in the state.

The Occupational Freedom and Opportunity Act, which cleared the state legislature with overwhelming bipartisan support earlier this year, “will save thousands of Floridians both time and money for years to come,” DeSantis said in a statement announcing his signing of the bill.

State Rep. Blaise Ingoglia (R–Spring Hill), the bill’s sponsor, called it the largest license deregulation effort in Florida history. According to the Institute for Justice, a libertarian law firm that advocates for licensing reform and sues states over unfair licensing laws, Florida’s House Bill 1193 (H.B. 1193) might be an even bigger deal. In a statement, the institute said the bill “repeals more occupational licensing laws than any licensing reform ever passed by any other state.”

The bill fully repeals some of the state’s most unnecessary licensing laws, including those that previously governed interior designers, hair braiders, and boxing match timekeepers. It loosens the state’s cosmetology licensing laws to allow a wide range of hair and nail styling activities to take place outside of licensed salons—a particularly timely reform in the midst of the coronavirus pandemic, as it will pave the way for stylists to make house calls.

Dieticians and nutritionists will be able to work without fear of being targetted by sting operations and threatened with jail time simply for the supposed crime of giving out tips about healthy eating. The new law will allow “any person who provides information, wellness recommendations, or advice concerning nutrition” to do so without a license as long as they do not provide those services to individuals under the direct care of a physician for medical reasons, or advertise themselves as medical professionals.

The bill also eliminates separate business licenses for architects, geologists, and landscape architects who already hold individual licenses in those fields. (Although that does raise the question of why geologists and landscape architects need to be licensed in the first place; hopefully DeSantis will get around to fixing that next.)

Importantly, the new law follows on some reforms passed by Arizona last year to expand the recognition of out-of-state licenses. Barbers and cosmetologists licensed in other states will be allowed to practice their trades in Florida without having to get re-licensed, and the law instructs the state Department of Business and Professional Regulation to begin the process of identifying other professions where similar reciprocity could be offered.

The new law also clears up a longstanding disagreement over whether state or local officials control the licensing process for food trucks by placing health and safety issues under state authority. Local officials will still be able to keep food trucks out of certain areas with zoning laws, but they won’t be able to pile additional licensing requirements on top of existing state rules to block vendors from operating. Florida is just the third state to pass such a law, according to the Institute for Justice.

“Florida’s reform will fuel economic growth and open up opportunity to entry-level entrepreneurs throughout the state,” says Scott Bullock, president of the Institute for Justice.

Licensing reform is on the agenda in many state capitols. More than 1,000 licensing reform bills were introduced last year, according to the National Conference of State Legislatures, which tracks state-level legislation. But lawmakers everywhere are now chasing Florida, which has raised the bar for what should be considered achievable.

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Derek Chauvin, the now-former Minneapolis police officer who kneeled on George Floyd’s neck for more than eight minutes while arresting him for passing a counterfeit $20 bill on Memorial Day, has been charged with murder and manslaughter for causing Floyd’s death by using excessive force. But whether or not Chauvin is convicted, it is not clear that he would be liable under 42 USC 1983, a federal statute that allows lawsuits against police officers who violate people’s constitutional rights.

Benjamin Crump, an attorney who represents Floyd’s family, plans to file a lawsuit under that statute. Given the relevant precedents in the 8th Circuit, which includes Minnesota, it is by no means a surefire winner. The uncertainty speaks volumes about the leeway that courts tend to give cops in excessive force cases and the extent to which the doctrine of qualified immunity, which bars claims under 42 USC 1983 when the rights police allegedly violated were not “clearly established,” shields them from liability for outrageous conduct.

Chauvin, assisted by two other officers who also face criminal charges, kneeled on Floyd’s neck while he was handcuffed and restrained in a prone position. The autopsy report from the Hennepin County Medical Examiner’s Office describes the cause of death as “cardiopulmonary arrest complicating law enforcement subdual, restraint, and neck compression.” An independent autopsy commissioned by Floyd’s family said he died from “mechanical asphyxiation.” Both reports agreed that the manner of death was homicide.

In two recent cases with broadly similar facts—a handcuffed detainee who died while restrained in a prone position by several officers—the U.S. Court of Appeals for the 8th Circuit blocked claims under 42 USC 1983. Those cases may not be dispositive, since both involved detainees who were actively resisting. Although Chauvin and the other officers said Floyd initially resisted their attempts to put him in a squad car, he was under control and posed no apparent threat to them while Chauvin was kneeling on his neck. But the 8th Circuit does not seem to have previously addressed a situation quite like that, and the lack of sufficiently specific precedent is enough to trigger qualified immunity.

In the 2017 case Ryan v. Armstrong, the 8th Circuit considered the 2012 death of Jerome Harrell, who surrendered himself at the Stearns County jail in St. Cloud, Minnesota, because he had outstanding traffic warrants. During his night in jail, the court noted, Harrell “scream[ed], howl[ed], and bang[ed] against his cell door for eight hours.” The next morning, when correctional officers tried to remove him from his cell, Harrell resisted them. They handcuffed him, shackled his legs, tased him twice, and pinned him to the floor face down for three minutes.

Five minutes after the officers entered Harrell’s cell, he was no longer responsive, and jail staff could not revive him. He was pronounced dead at a hospital later that morning. The official autopsy report described the incident as a “sudden unexpected death during restraint.”

The 8th Circuit ruled that the use of force against Harrell was objectively reasonable in the circumstances. “Harrell was actively resisting the extraction procedure by
ignoring directives to lie down on his bunk and resisting the defendants’ efforts to
subdue him once they entered his cell,” the court said. “We, therefore, conclude that the defendants are entitled to qualified immunity on the trustee’s excessive force claim.”

The 2020 case Lombardo v. City of St. Louis involved the death of Nicholas Gilbert, who was arrested by St. Louis police officers in 2015 for trespassing in a condemned building and failure to appear in court after receiving a traffic ticket. “While Gilbert was in the cell,” the court noted, “the officers observed him engaging in unusual behavior, including waving his hands in the air, rattling the bars of his cell, throwing his shoe, and bobbing up and down.” One officer “observed Gilbert tie an article of clothing around the bars of his cell and his neck.” Worried that Gilbert was trying to hang himself, another officer entered the cell but found him with nothing around his neck.

The officer nevertheless started to handcuff Gilbert, precipitating a struggle in which several officers eventually handcuffed him, shackled his legs, and pinned him to the ground on his stomach. “Throughout the altercation,” the court said, “the officers controlled Gilbert’s limbs at his shoulders, biceps, legs, and lower or middle torso. While continuing to resist, Gilbert tried to raise his chest up and told the officers to stop because they were hurting him. After fifteen minutes of struggle in the prone position, Gilbert stopped resisting and the officers rolled him from his stomach onto his side.”

At that point, Gilbert had already stopped breathing, and the officers could not find a pulse. He was transported to a hospital, where he was pronounced dead. The official autopsy report said “the cause of death was arteriosclerotic heart disease exacerbated by methamphetamine and forcible restraint.” An independent medical report commissioned by Gilbert’s family said the cause was “forcible restraint inducing asphyxia.”

Citing its decision in Ryan, the 8th Circuit concluded that “the Officers’ actions did not amount to constitutionally excessive force.” The court noted that “the Officers held Gilbert in the prone position only until he stopped actively fighting against his restraints and the Officers.” And “once he stopped resisting, the Officers rolled Gilbert out of the prone position.”

By contrast with Harrell and Gilbert, Floyd was not resisting at the time of his death, except to repeatedly complain that he could not breathe. Presumably, that distinction would make a difference in the constitutional analysis, although we can’t be sure.

Another seemingly relevant difference is that Chauvin used a neck restraint, while the defendants in Ryan and Lombardo applied pressure to other parts of the detainees’ bodies. Other federal appeals courts have ruled that neck restraints are reasonable under the Fourth Amendment in some situations, primarily when the suspect is violently resisting and/or has a history of doing so, and unreasonable in others, primarily when those circumstances are lacking.

Even if the 8th Circuit followed that general trend and concluded that Chauvin’s actions were unconstitutional, it could still decide that the law on that point was not clearly established at the time of Floyd’s arrest, meaning the excessive force claim would be barred by qualified immunity. It could even reach the latter conclusion without resolving the constitutional question, as courts have commonly done since 2009, when the Supreme Court began allowing that shortcut.

Other 8th Circuit decisions have recognized that the gratuitous use of force during an arrest violates the Fourth Amendment, even when the outcome is not fatal. But that general principle is not enough to defeat qualified immunity in cases with different details.

Last year, for example, the 8th Circuit granted qualified immunity to a Nebraska sheriff’s deputy who, while responding to an erroneous “domestic assault” report, lifted the purported victim in a bear hug and threw her to the ground, knocking her unconscious and breaking her collarbone. “It was not clearly established in May 2014 that a deputy was forbidden to use a takedown maneuver to arrest a suspect who ignored the deputy’s instruction to ‘get back here’ and continued to walk away from the officer,” the court concluded. Last month the Supreme Court declined to review that decision.

To avoid dismissal of their claims, says UCLA law professor Joanna Schwartz, a leading critic of qualified immunity, Floyd’s family “would have to find cases in which earlier defendants were found to have violated the law in precisely the same way.” Thanks to qualified immunity, suggests Brett Kittredge, director of communications at the Mississippi Center for Public Policy, “Floyd’s family would likely have their claims against the officers dismissed because there isn’t a case in the 8th Circuit…or the U.S. Supreme Court specifically holding that it is unconstitutional for police to kneel on the neck of a handcuffed man for nine minutes.”

We may never find out. Last year, the city of Minneapolis reached a $20 million settlement with the family of Justine Ruszczyk Damond, who was shot to death by Officer Mohamed Noor after she called 911 to report a possible assault in the alley behind her house. Noor had already been convicted of third-degree murder. The Minneapolis Star Tribune reports that “legal experts” think the payout in Floyd’s case could “dwarf” that settlement.

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Sweeping reforms signed into law by Florida Gov. Ron DeSantis on Tuesday will loosen or abolish occupational licensing regulations across more than 30 professions, cutting red tape for potentially thousands of workers in the state.

The Occupational Freedom and Opportunity Act, which cleared the state legislature with overwhelming bipartisan support earlier this year, “will save thousands of Floridians both time and money for years to come,” DeSantis said in a statement announcing his signing of the bill.

State Rep. Blaise Ingoglia (R–Spring Hill), the bill’s sponsor, called it the largest license deregulation effort in Florida history. According to the Institute for Justice, a libertarian law firm that advocates for licensing reform and sues states over unfair licensing laws, Florida’s House Bill 1193 (H.B. 1193) might be an even bigger deal. In a statement, the institute said the bill “repeals more occupational licensing laws than any licensing reform ever passed by any other state.”

The bill fully repeals some of the state’s most unnecessary licensing laws, including those that previously governed interior designers, hair braiders, and boxing match timekeepers. It loosens the state’s cosmetology licensing laws to allow a wide range of hair and nail styling activities to take place outside of licensed salons—a particularly timely reform in the midst of the coronavirus pandemic, as it will pave the way for stylists to make house calls.

Dieticians and nutritionists will be able to work without fear of being targetted by sting operations and threatened with jail time simply for the supposed crime of giving out tips about healthy eating. The new law will allow “any person who provides information, wellness recommendations, or advice concerning nutrition” to do so without a license as long as they do not provide those services to individuals under the direct care of a physician for medical reasons, or advertise themselves as medical professionals.

The bill also eliminates separate business licenses for architects, geologists, and landscape architects who already hold individual licenses in those fields. (Although that does raise the question of why geologists and landscape architects need to be licensed in the first place; hopefully DeSantis will get around to fixing that next.)

Importantly, the new law follows on some reforms passed by Arizona last year to expand the recognition of out-of-state licenses. Barbers and cosmetologists licensed in other states will be allowed to practice their trades in Florida without having to get re-licensed, and the law instructs the state Department of Business and Professional Regulation to begin the process of identifying other professions where similar reciprocity could be offered.

The new law also clears up a longstanding disagreement over whether state or local officials control the licensing process for food trucks by placing health and safety issues under state authority. Local officials will still be able to keep food trucks out of certain areas with zoning laws, but they won’t be able to pile additional licensing requirements on top of existing state rules to block vendors from operating. Florida is just the third state to pass such a law, according to the Institute for Justice.

“Florida’s reform will fuel economic growth and open up opportunity to entry-level entrepreneurs throughout the state,” says Scott Bullock, president of the Institute for Justice.

Licensing reform is on the agenda in many state capitols. More than 1,000 licensing reform bills were introduced last year, according to the National Conference of State Legislatures, which tracks state-level legislation. But lawmakers everywhere are now chasing Florida, which has raised the bar for what should be considered achievable.

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Derek Chauvin, the now-former Minneapolis police officer who kneeled on George Floyd’s neck for more than eight minutes while arresting him for passing a counterfeit $20 bill on Memorial Day, has been charged with murder and manslaughter for causing Floyd’s death by using excessive force. But whether or not Chauvin is convicted, it is not clear that he would be liable under 42 USC 1983, a federal statute that allows lawsuits against police officers who violate people’s constitutional rights.

Benjamin Crump, an attorney who represents Floyd’s family, plans to file a lawsuit under that statute. Given the relevant precedents in the 8th Circuit, which includes Minnesota, it is by no means a surefire winner. The uncertainty speaks volumes about the leeway that courts tend to give cops in excessive force cases and the extent to which the doctrine of qualified immunity, which bars claims under 42 USC 1983 when the rights police allegedly violated were not “clearly established,” shields them from liability for outrageous conduct.

Chauvin, assisted by two other officers who also face criminal charges, kneeled on Floyd’s neck while he was handcuffed and restrained in a prone position. The autopsy report from the Hennepin County Medical Examiner’s Office describes the cause of death as “cardiopulmonary arrest complicating law enforcement subdual, restraint, and neck compression.” An independent autopsy commissioned by Floyd’s family said he died from “mechanical asphyxiation.” Both reports agreed that the manner of death was homicide.

In two recent cases with broadly similar facts—a handcuffed detainee who died while restrained in a prone position by several officers—the U.S. Court of Appeals for the 8th Circuit blocked claims under 42 USC 1983. Those cases may not be dispositive, since both involved detainees who were actively resisting. Although Chauvin and the other officers said Floyd initially resisted their attempts to put him in a squad car, he was under control and posed no apparent threat to them while Chauvin was kneeling on his neck. But the 8th Circuit does not seem to have previously addressed a situation quite like that, and the lack of sufficiently specific precedent is enough to trigger qualified immunity.

In the 2017 case Ryan v. Armstrong, the 8th Circuit considered the 2012 death of Jerome Harrell, who surrendered himself at the Stearns County jail in St. Cloud, Minnesota, because he had outstanding traffic warrants. During his night in jail, the court noted, Harrell “scream[ed], howl[ed], and bang[ed] against his cell door for eight hours.” The next morning, when correctional officers tried to remove him from his cell, Harrell resisted them. They handcuffed him, shackled his legs, tased him twice, and pinned him to the floor face down for three minutes.

Five minutes after the officers entered Harrell’s cell, he was no longer responsive, and jail staff could not revive him. He was pronounced dead at a hospital later that morning. The official autopsy report described the incident as a “sudden unexpected death during restraint.”

The 8th Circuit ruled that the use of force against Harrell was objectively reasonable in the circumstances. “Harrell was actively resisting the extraction procedure by
ignoring directives to lie down on his bunk and resisting the defendants’ efforts to
subdue him once they entered his cell,” the court said. “We, therefore, conclude that the defendants are entitled to qualified immunity on the trustee’s excessive force claim.”

The 2020 case Lombardo v. City of St. Louis involved the death of Nicholas Gilbert, who was arrested by St. Louis police officers in 2015 for trespassing in a condemned building and failure to appear in court after receiving a traffic ticket. “While Gilbert was in the cell,” the court noted, “the officers observed him engaging in unusual behavior, including waving his hands in the air, rattling the bars of his cell, throwing his shoe, and bobbing up and down.” One officer “observed Gilbert tie an article of clothing around the bars of his cell and his neck.” Worried that Gilbert was trying to hang himself, another officer entered the cell but found him with nothing around his neck.

The officer nevertheless started to handcuff Gilbert, precipitating a struggle in which several officers eventually handcuffed him, shackled his legs, and pinned him to the ground on his stomach. “Throughout the altercation,” the court said, “the officers controlled Gilbert’s limbs at his shoulders, biceps, legs, and lower or middle torso. While continuing to resist, Gilbert tried to raise his chest up and told the officers to stop because they were hurting him. After fifteen minutes of struggle in the prone position, Gilbert stopped resisting and the officers rolled him from his stomach onto his side.”

At that point, Gilbert had already stopped breathing, and the officers could not find a pulse. He was transported to a hospital, where he was pronounced dead. The official autopsy report said “the cause of death was arteriosclerotic heart disease exacerbated by methamphetamine and forcible restraint.” An independent medical report commissioned by Gilbert’s family said the cause was “forcible restraint inducing asphyxia.”

Citing its decision in Ryan, the 8th Circuit concluded that “the Officers’ actions did not amount to constitutionally excessive force.” The court noted that “the Officers held Gilbert in the prone position only until he stopped actively fighting against his restraints and the Officers.” And “once he stopped resisting, the Officers rolled Gilbert out of the prone position.”

By contrast with Harrell and Gilbert, Floyd was not resisting at the time of his death, except to repeatedly complain that he could not breathe. Presumably, that distinction would make a difference in the constitutional analysis, although we can’t be sure.

Another seemingly relevant difference is that Chauvin used a neck restraint, while the defendants in Ryan and Lombardo applied pressure to other parts of the detainees’ bodies. Other federal appeals courts have ruled that neck restraints are reasonable under the Fourth Amendment in some situations, primarily when the suspect is violently resisting and/or has a history of doing so, and unreasonable in others, primarily when those circumstances are lacking.

Even if the 8th Circuit followed that general trend and concluded that Chauvin’s actions were unconstitutional, it could still decide that the law on that point was not clearly established at the time of Floyd’s arrest, meaning the excessive force claim would be barred by qualified immunity. It could even reach the latter conclusion without resolving the constitutional question, as courts have commonly done since 2009, when the Supreme Court began allowing that shortcut.

Other 8th Circuit decisions have recognized that the gratuitous use of force during an arrest violates the Fourth Amendment, even when the outcome is not fatal. But that general principle is not enough to defeat qualified immunity in cases with different details.

Last year, for example, the 8th Circuit granted qualified immunity to a Nebraska sheriff’s deputy who, while responding to an erroneous “domestic assault” report, lifted the purported victim in a bear hug and threw her to the ground, knocking her unconscious and breaking her collarbone. “It was not clearly established in May 2014 that a deputy was forbidden to use a takedown maneuver to arrest a suspect who ignored the deputy’s instruction to ‘get back here’ and continued to walk away from the officer,” the court concluded. Last month the Supreme Court declined to review that decision.

To avoid dismissal of their claims, says UCLA law professor Joanna Schwartz, a leading critic of qualified immunity, Floyd’s family “would have to find cases in which earlier defendants were found to have violated the law in precisely the same way.” Thanks to qualified immunity, suggests Brett Kittredge, director of communications at the Mississippi Center for Public Policy, “Floyd’s family would likely have their claims against the officers dismissed because there isn’t a case in the 8th Circuit…or the U.S. Supreme Court specifically holding that it is unconstitutional for police to kneel on the neck of a handcuffed man for nine minutes.”

We may never find out. Last year, the city of Minneapolis reached a $20 million settlement with the family of Justine Ruszczyk Damond, who was shot to death by Officer Mohamed Noor after she called 911 to report a possible assault in the alley behind her house. Noor had already been convicted of third-degree murder. The Minneapolis Star Tribune reports that “legal experts” think the payout in Floyd’s case could “dwarf” that settlement.

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Flattening the curve on COVID-19 has meant flattening the curve on tax season, too, pushing everything down the line a bit so that the final day to hand over the government’s cut of our hard-earned income comes up on July 15. That’s given us an unparalleled opportunity in a time of crisis to assess what we’re getting for our money. Amidst the smoking ruins of 2020, it’s understandable if you regret every penny you’ve ever surrendered to a tax collector.

The year 2020 should stand forever as evidence that, rather than a solution, government is often a cup of gasoline just waiting to be thrown on a fire. The spark this time was a tiny, but deadly, virus.

From the beginning, President Trump minimized the danger posed by COVID-19 even as the Centers for Disease Control and Prevention (CDC) and the Food and Drug Administration (FDA)—agencies of the federal government over which he presides—fumbled developing a test for the disease and kneecapped academic, commercial, and hospital efforts that could do better. The FDA only belatedly eased rules standing in the way of expanding the supply of ventilators, masks, hand sanitizer, and other supplies.

When companies found it challenging to navigate the ever-shifting regulatory landscape, the president invoked the Defense Production Act to force them to produce what the government wanted, when it was wanted.

To add to the fun, the CDC kept Americans entertained with contradictory advice as to whether or not wearing masks could be helpful.

Taking the chaos in D.C. as a challenge to their own abilities at confusing and dismaying the public, state governors feuded with the Trump administration as well as with local officials who were busy baffling us with their own efforts.

Perhaps the CDC’s test-fumbling was seen as insufficiently deadly; governors of some states, including New Jersey and New York, required nursing homes to accept COVID-19 patients against all advice. Such facilities have accounted for about 40 percent of all U.S. deaths during the pandemic.

In the name of delaying the spread of COVID-19, states and localities issued draconian and arbitrary shutdown rules that closed businesses, choked-off travel, interrupted personal relationships, and threatened many people with economic ruin and despair. To make it worse, some of the governors issuing them promptly ignored or gamed their own rules.

That this has been to questionable benefit should go without saying—we’re seeing a new round of mandated closures now, after Americans’ patience and limited ability to weather orders that shut businesses and kill jobs is greatly eroded. In fact, by the end of May, Americans were unemployed, aggravated, at wit’s end and ready to explode.

Despite spending years fueling conflict between police and the public, and then confining the population to stew at home over health concerns and the prospect of unpaid bills and poverty, officials seemed astonished that the country erupted in anger at the latest law-enforcement outrage.

“Police abuse remains a problem that needs to be addressed by policymakers and police professionals,” the federal government’s National Institute of Justice warned in 2000.

Twenty years later, with little done to address the issue and lots of time and frustration on their hands, Americans marched, protested, and some also rioted. The killing of George Floyd, mistreatment of African-Americans, and anger at police brutality in general, sent people into the streets to demand change—in forms good, bad, indifferent, and undefined.

How that change will shake out is anybody’s guess; as with the pandemic, Republicans and Democrats have turned dealing with police reform and racism into new excuses for political point-scoring. Will officials back enforcers to the hilt, go with tearing down random statues misunderstood by the mob, or make the difficult effort to rein-in their own out-of-control enforcers? Hang on while political professionals wet their fingers and hold them in the air.

What is clear is that this turmoil has a big price tag, which will probably generate more turmoil. As of June 26, the Federal Reserve Bank of Atlanta projects a 39.5 percent decline in GDP for the second quarter.

For the year overall, the Federal Reserve Bank’s projection of a 6.5 percent decline in GDP is actually optimistic compared to the roughly 8 percent drops predicted by the International Monetary Fund (IMF) and the Organization for Economic Cooperation and Development (OECD).

“The COVID-19 pandemic pushed economies into a Great Lockdown, which helped contain the virus and save lives, but also triggered the worst recession since the Great Depression,” writes Gita Gopinath, director of the IMF’s research department.

The U.S. government tried to offset the economic fallout of the pandemic and of the lockdown orders, but it did so very badly. Of the money paid out to alleviate the pain, $1.4 billion went to dead people who are already well beyond the reach of stimulus efforts, according to the U.S. Government Accountability Office.

The checks that went to living recipients didn’t do much more good.

“Stimulus checks increase spending particularly among low-income households, but very little of the additional spending flows to the businesses most affected by the COVID shock; and loans to small businesses have little impact on employment rates,” concludes a paper from a Harvard University economic research team published earlier this month.

For all of this, we’ll be paying over the course of many years to come.

The Congressional Budget Office “projects that over the 11-year horizon, cumulative real output (in 2019 dollars) will be $7.9 trillion, or 3.0 percent of cumulative real GDP, less than what the agency projected in January.” That is, America over the next decade is expected to be a poorer place than it was on track to be. That’s not entirely because of matters under human control—COVID-19 is a creation of nature—but human government officials played an enormous role in creating the conditions in which we find ourselves.

So we’re getting quite a lot for our money. Whether all of that incompetence, in-fighting, obstructionism, authoritarianism, and waste is worth what we’re paying is a matter for each of us to decide. We’ll have time to contemplate the return on our investment as we await the arrival of this year’s tax day, and to consider if we’re happy with what we’re getting for our money.

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There is much to admire in Justice Kagan’s Seila Law dissent. She wrote a robust historical analysis about the removal power. And, to be frank, Chief Justice Roberts didn’t bother responding to most of her claims. But there is at least one weak spot in Kagan’s analysis: she misread Hamilton in Federalist No. 77. To Kagan, Hamilton thought the Constitution required Senatorial consent for a Presidential removal. Kagan’s reading is all-too-common. Indeed, in Myers v. United States, both Chief Justice Taft and Justice Brandeis accepted this understanding of Federalist No. 77. 

This reading, however, is not the best reading of Federalist No. 77. In that paper, Hamilton was discussing the appointment power, not the removal power. He stated what should be an uncontroversial point: when a new President wants to “displace”–that is replace or substitute–a holdover appointed by his predecessor, the Senate must provide “advice and consent” for the new position. Hamilton was not discussing whether the Senate must consent before the President removes an officer of the United States. He was talking about what happens after the removal: the Senate must provide advice-and-consent to fill the vacancy.

In Federalist No. 77, Hamilton begins by praising the “stability” of the new government when one administration concludes and a new administration begins:

IT HAS been mentioned as one of the advantages to be expected from the co-operation of the Senate, in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint. A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected, if he were the sole disposer of offices.

Let’s consider an example. When President Washington’s term concludes, and President Adams’s term begins, President Adams would need the Senate’s consent to “displace as well as to appoint.” That is, Adams would need the Senate’s consent to “appoint” people to fill vacant positions. That conclusion is not controversial. And Adams would need the Senate’s consent to “displace” some holdovers from the Washington administration. What does it mean to “displace”?

That displacement process can take one of two forms. First, Adams could ask the holdover to resign, which he probably would. If so, the position is now vacant, and the President could seek advice-and-consent to fill it. Second, if the holdovers refuses to resign, Adams could remove the holdover. At that point, now the position is vacant, and the President could seek advice-and-consent to fill it. In short, the Senate’s role in “displace[ment]” does not concern asking an Officer to resign, or removing an Officer. Rather, the Senate’s role arises on the back-half of this process: replacing, or substituting a new person for that position.

In Federalist No. 77, Hamilton was not discussing the President’s removal power; he was trying to sell the Constitution to the people of New York, who were worried about a new executive who will create chaos.  Hamilton makes this point expressly in the next two sentences of Federalist No. 77:

Where a man in any station had given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him, by the apprehension that a discountenance of the Senate might frustrate the attempt, and bring some degree of discredit upon himself. Those who can best estimate the value of a steady administration, will be most disposed to prize a provision which connects the official existence of public men with the approbation or disapprobation of that body which, from the greater permanency of its own composition, will in all probability be less subject to inconstancy than any other member of the government.

Hamilton was discussing a simple proposition: a new President could not unilaterally appoint new members to the executive branch; he would need the Senate’s consent. Thus, the Senate wold ensure there was some be “stability” from administration to administration, rather than a “violent or so general a revolution.” Senate advice-and-consent on the appointment power maintains stability. In other words, the President could not simply fire everyone as a means to appoint new people. If he chooses to fire people, without an eye to the Senate, he would be stuck with vacancies in critical positions, thereby undermining his own administration. Hamilton was prescient: the parallels to present circumstances should be apparent.

At one point in her opinion, Justice Kagan seems to understand the phrase “displace” to mean replace, or substitute. Indeed, she uses the phrase “substituting.”

Delegates to the Constitutional Convention never discussed whether or to what extent the President would have power to remove executive officials. As a result, the Framers advocating ratification had no single view of the matter. In Federalist No. 77, Hamilton presumed that under the new Constitution “[t]he consent of [the Senate] would be necessary to displace as well as to appoint” officers of the United States. Id., at 515. He thought that scheme would promote”steady administration”: “Where a man in any station had given satisfactory evidence of his fitness for it, a new president would be restrained” from substituting “a person more agreeable to him.” Ibid.

Again, Hamilton wrote, “Where a man in any station had given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him…” Kagan changed “from attempting a change in favor of” to “from substituting.” Here Kagan, perhaps inadvertently, nailed it. But she still drew the same conclusion Taft and Brandeis drew: that “displace” was synonymous with “remove.” The better conclusion is that “displace” means “substitute,” which is a multi-step process.

This reading also accounts for Hamilton’s general reading of a robust, “vigorous” executive. In Myers, Chief Justice Taft wrote that Hamilton “changed his view of this matter” with respect to Washington’s proclamation of neutrality. Hamilton didn’t change his mind, or state a “heterodox” position in Federalist No. 77. He simply used the word “displace” in a different fashion.

Seth Barrett Tillman wrote about this issue a decade ago in a paper, fittingly titled, “The Puzzle of Hamilton’s Federalist No. 77.” Once again, Seth shined a light on constitutional puzzles that few others saw. I am always grateful for his careful and prescient scholarship.

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After A&E canceled the police ride-along reality show Live PD in response to growing criticism and activism about how police officers treat black people, host Dan Abrams insisted that part of the purpose of the show is to provide additional transparency into how officers operate in the field. Abrams said that he thought the show actually furthered the cause of police accountability.

But a new investigation by The Marshall Project, in partnership with The Daily Beast, raises questions about the influence of the police departments with whom the show partnered.

The Marshall Project sought out records and emails between the 47 law enforcement agencies that worked with Live PD and the show’s production company. From the 20 agencies who responded to their records requests, they found documentation that police officers reviewed footage before it aired and that, in 13 cases, police asked Live PD to not broadcast specific encounters.

Not all of Live PD was aired live. The show frequently followed police and recorded footage to be aired for future episodes. And even for the footage aired “live,” there was actually a 10- to 25-minute delay so that the footage could be reviewed. The show said it only edited footage to remove private information or censor footage that could jeopardize a case or cause a security risk.

But The Marshall Project found that law enforcement agencies asked that footage be cut for other reasons. In one such case, police in Warwick, Rhode Island, confronted a man on a skateboard with a shopping cart who was suspected of shoplifting. As a police car chased the man on a skateboard, it appeared (though it’s not fully clear) that the officer driving the car opened the door to knock the skater down while the vehicle was moving.

This is a pretty dangerous tactic for catching a shoplifter and could have hurt the man. A captain with the police department wrote to Live PD and told them that the method used to catch the shoplifter was “way outside of [their] policy and [they] would be opening up some scrutiny issues with the city and our insurance company if they were to see this.” He said that the incident was “too ‘wild west'” for how they typically behave in the department. Following that email, the incident never aired on Live PD.

The investigation also found footage of a sheriff’s deputy in Spokane, Washington, forcefully removing a woman from her own home after she apparently called them over a domestic violence incident. The woman told officers they had to get a search warrant in order to enter her home and then tried to close the door. Instead of leaving, or waiting peacefully outside the home, the officers dragged the woman out of her house while waiting for a judge to sign a warrant.

Once again, representatives from the sheriff’s department asked Live PD not to air the encounter due to “procedural issues” with how the deputies behaved. The show’s producers tried to edit the footage, but the department was still not satisfied. The encounter never aired.

Big Fish Entertainment, which produced Live PD, told The Marshall Project that the incident didn’t air because they were concerned about the woman and a child in the home being identified, not because of the sheriff’s department request. In fact, in each incident they were asked about, the production company had a different reason for censoring or cutting footage, and told The Marshall Project that it was not due to police concerns.

The Marshall Project obtained the footage of these encounters and have embedded the videos in its story, so you can review for yourself whether this behavior looks like police misconduct.

These incidents where police departments attempted to influence what Live PD put on the show is precisely why I cast doubt on claims that this type of programming actually shines a light on how police treat people. Real transparency means letting the public witness police mistakes.

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