Category: reason

Neil Gorsuch Disappoints Libertarians, Votes To Uphold Protectionist Liquor Law

Supreme Court Justice Neil Gorsuch has generally received high marks from libertarian legal observers since joining the Supreme Court in 2017. That is due in part to Gorsuch’s hawkish stance in Fourth Amendment cases, as well as to his sharp rulings against what he sees as executive and legislative malfeasance.

But Gorsuch had very few libertarian admirers this week when he voted in favor of upholding a nakedly protectionist state liquor law. In fact, Gorsuch’s reasoning in the case put him directly at odds with a significant number of libertarian legal thinkers.

The case is Tennessee Wine & Spirits Retailers Association v. Thomas. At issue was a state law imposing a two-year state residency requirement on all applicants seeking a license to operate a liquor store. According to the Supreme Court’s ruling, because this measure “blatantly favors the State’s residents and has little relationship to public health and safety, it is unconstitutional.”

Gorsuch disagreed. The Constitution allows “each State the opportunity to assess for itself the costs and benefits of free trade in alcohol,” he insisted, even if that assessment results in “reduced competition and increased prices.” As for the majority’s view that the Tennessee regulation served no valid public health or safety purpose, Gorsuch countered that the protectionist measure might well benefit the public by “raising prices, and thus reducing demand” for alcoholic beverages.

Among the winning parties in Tennessee Wine & Spirits are a couple named Doug and Mary Ketchum, who own a store called Kimbrough Wine & Spirits. The Ketchums ran head first into the protectionist state law when they purchased that business in 2016, shortly after moving to Memphis from Utah. They retained the libertarian lawyers at the Institute for Justice (I.J.) to represent them in their legal fight against the Tennessee regulation.

In its brief to the Supreme Court, the I.J. legal team stressed a constitutional doctrine known as the “dormant Commerce Clause.” In effect, this doctrine holds that the Commerce Clause, in addition to authorizing Congress to regulate economic activity between the states, also forbids the states from enacting any interstate economic barriers of their own.

“History has repeatedly demonstrated that states will not hesitate to engage in ‘low-level trade war[s]’ unless the judiciary stands ready to vigorously enforce the Commerce Clause’s nondiscrimination principle,” the I.J. lawyers argued. “In the face of persistent and creative state efforts to protect local economic interests, enforcement of that principle is the surest means of preventing the economic Balkinization that the Framers sought to avoid.”

To understand what the framers sought to avoid, consider the words of James Madison. In Federalist 42, Madison explained that one of the main purposes behind the Commerce Clause was to clear away the various tariffs, monopolies, and other interstate economic barriers that the states had erected under the Articles of Confederation. In other words, one of the objectives of the Commerce Clause was to help create what we might refer to today as a domestic free trade zone. “A very material object of this power,” Madison wrote, “was the relief of the States which import and export through other states from the improper contributions levied on them.” Tennessee’s protectionist liquor law fits that Madisonian definition of “improper.”

This week’s ruling in Tennessee Wine & Spirits is not the first time that the libertarians at the Institute for Justice have argued and won a dormant Commerce Clause case at the Supreme Court. In 2005, the I.J. team was among the winning litigators in Granholm v. Heald, which struck down protectionist state laws banning the direct sale of wine to consumers from out-of-state wineries. As I.J. lawyer (and current Arizona Supreme Court justice) Clint Bolick said during oral arguments, “Our clients,” a small, family-run winery, “cannot compete with the liquor distributors in the political marketplace…. They can, however, compete in the economic marketplace. The Commerce Clause protects that right, that level playing field.” According to Bolick, the regulations at issue deserved to be struck down because “the state is engaged, not in legitimate regulation, but in economic protectionism.”

The Supreme Court agreed with Bolick.

Which brings us back to Gorsuch. In his Tennessee Wine & Spirits dissent, Gorsuch dismissed the dormant Commerce Clause as an “implied doctrine” and criticized it as a source of “judicial activism.” In contrast to the position championed by the Institute for Justice, which called for the judiciary “to vigorously enforce the Commerce Clause’s nondiscrimination principle,” Gorsuch suggested that the Court should have stayed out of the matter entirely. “The regulation of alcohol wasn’t left to the imagination of a committee of nine sitting in Washington,” he wrote, “but to the judgment of the people themselves and their local elected representatives.”

Thankfully for the libertarians, Gorsuch’s view was the losing one this time around.

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Neil Gorsuch Disappoints Libertarians, Votes To Uphold Protectionist Liquor Law

Supreme Court Justice Neil Gorsuch has generally received high marks from libertarian legal observers since joining the Supreme Court in 2017. That is due in part to Gorsuch’s hawkish stance in Fourth Amendment cases, as well as to his sharp rulings against what he sees as executive and legislative malfeasance.

But Gorsuch had very few libertarian admirers this week when he voted in favor of upholding a nakedly protectionist state liquor law. In fact, Gorsuch’s reasoning in the case put him directly at odds with a significant number of libertarian legal thinkers.

The case is Tennessee Wine & Spirits Retailers Association v. Thomas. At issue was a state law imposing a two-year state residency requirement on all applicants seeking a license to operate a liquor store. According to the Supreme Court’s ruling, because this measure “blatantly favors the State’s residents and has little relationship to public health and safety, it is unconstitutional.”

Gorsuch disagreed. The Constitution allows “each State the opportunity to assess for itself the costs and benefits of free trade in alcohol,” he insisted, even if that assessment results in “reduced competition and increased prices.” As for the majority’s view that the Tennessee regulation served no valid public health or safety purpose, Gorsuch countered that the protectionist measure might well benefit the public by “raising prices, and thus reducing demand” for alcoholic beverages.

Among the winning parties in Tennessee Wine & Spirits are a couple named Doug and Mary Ketchum, who own a store called Kimbrough Wine & Spirits. The Ketchums ran head first into the protectionist state law when they purchased that business in 2016, shortly after moving to Memphis from Utah. They retained the libertarian lawyers at the Institute for Justice (I.J.) to represent them in their legal fight against the Tennessee regulation.

In its brief to the Supreme Court, the I.J. legal team stressed a constitutional doctrine known as the “dormant Commerce Clause.” In effect, this doctrine holds that the Commerce Clause, in addition to authorizing Congress to regulate economic activity between the states, also forbids the states from enacting any interstate economic barriers of their own.

“History has repeatedly demonstrated that states will not hesitate to engage in ‘low-level trade war[s]’ unless the judiciary stands ready to vigorously enforce the Commerce Clause’s nondiscrimination principle,” the I.J. lawyers argued. “In the face of persistent and creative state efforts to protect local economic interests, enforcement of that principle is the surest means of preventing the economic Balkinization that the Framers sought to avoid.”

To understand what the framers sought to avoid, consider the words of James Madison. In Federalist 42, Madison explained that one of the main purposes behind the Commerce Clause was to clear away the various tariffs, monopolies, and other interstate economic barriers that the states had erected under the Articles of Confederation. In other words, one of the objectives of the Commerce Clause was to help create what we might refer to today as a domestic free trade zone. “A very material object of this power,” Madison wrote, “was the relief of the States which import and export through other states from the improper contributions levied on them.” Tennessee’s protectionist liquor law fits that Madisonian definition of “improper.”

This week’s ruling in Tennessee Wine & Spirits is not the first time that the libertarians at the Institute for Justice have argued and won a dormant Commerce Clause case at the Supreme Court. In 2005, the I.J. team was among the winning litigators in Granholm v. Heald, which struck down protectionist state laws banning the direct sale of wine to consumers from out-of-state wineries. As I.J. lawyer (and current Arizona Supreme Court justice) Clint Bolick said during oral arguments, “Our clients,” a small, family-run winery, “cannot compete with the liquor distributors in the political marketplace…. They can, however, compete in the economic marketplace. The Commerce Clause protects that right, that level playing field.” According to Bolick, the regulations at issue deserved to be struck down because “the state is engaged, not in legitimate regulation, but in economic protectionism.”

The Supreme Court agreed with Bolick.

Which brings us back to Gorsuch. In his Tennessee Wine & Spirits dissent, Gorsuch dismissed the dormant Commerce Clause as an “implied doctrine” and criticized it as a source of “judicial activism.” In contrast to the position championed by the Institute for Justice, which called for the judiciary “to vigorously enforce the Commerce Clause’s nondiscrimination principle,” Gorsuch suggested that the Court should have stayed out of the matter entirely. “The regulation of alcohol wasn’t left to the imagination of a committee of nine sitting in Washington,” he wrote, “but to the judgment of the people themselves and their local elected representatives.”

Thankfully for the libertarians, Gorsuch’s view was the losing one this time around.

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Kamala Harris Won the Democratic Debate by Fudging Her Record

The chattering classes have crowned Kamala Harris the winner of Thursday night’s Democratic presidential primary debate. As is so often the case with the senator from California and former top cop for that state, Harris earned her positive press with whoppers and attack lines carefully calculated for viral marketing potential. She may indeed have what it takes to be a winner—so did Donald Trump, whose propensity for bold and easily disproved falsehoods is also a hallmark Harris trait. 

What did Harris fudge the truth about? Let’s start with the big ones. 

Harris told viewers that she disagreed with President Obama’s policy of informing Immigration and Customs Enforcement (ICE) when undocumented immigrants were arrested for state or local crimes. But “as district attorney of San Francisco, Kamala Harris supported a city policy that required law enforcement to turn over undocumented juvenile immigrants to federal immigration authorities if they were arrested and suspected of committing a felony, regardless of whether they were actually convicted of a crime,” CNN notes. 

Another whopper: Harris claimed last night to have been one of the earliest and biggest proponents of police-worn body cameras. But as recently as 2015, she was arguing against making it California’s official statewide policy. “I as a general matter believe that we should invest in the ability of law enforcement leaders in specific regions and with their departments to use … discretion to figure out what technology they are going to adopt based on needs that they have and resources that they have,” Harris said at the time. 

She told debate viewers that as attorney general, she had required “that all my special agents would wear body cameras.” That’s true—Harris did require it of the small set of officers working directly for her, but not for officers statewide. 

Asked about the economy, Harris implied that low unemployment numbers in America are simply a reflection of poor people having to work two or three jobs just to get by. But that’s not how the employment numbers work. And as The Washington Post points out, “there are 7.8 million people who hold more than one job right now, just 5 percent of Americans with jobs. The percentage has been roughly steady since the Great Recession, and in fact is lower than in the mid-1990s, when it hovered around 6 percent.” 

In addition to these direct misrepresentations, Harris also made comments with at least a fuzzy relationship to reality. 

Harris spoke at one point of wanting rape victims to be able to run out into the street, flag down a cop, and be taken seriously and treated with respect. But when one underage girl in California did pretty much just that—running into an officer from Alameda County (Harris’ old prosecutorial stomping grounds) as she was fleeing a violent pimp—that cop instead started a sexual relationship with the girl and, later, so did several of his colleagues, while others helped cover these relationships up. When the young woman finally came forward, her lawyers begged Harris’s office to intervene and conduct an independent investigation into the Oakland Police Department. No dice. Harris was busy bringing charges against the website Backpage—charges she knew were barred by federal law (thanks, Section 230!)—and running a campaign for the U.S. Senate. 

(Speaking of Backpage, check out this excellent new ReasonTV piece on the government’s war against the website, its founders, and sex workers at large, if you haven’t already. Harris makes plenty of villainous appearances alongside her many Republican counterparts in this tale.) 

Aside from a Trump-like propensity for twisting the truth, Harris also shares the current president’s hunger (and that of his predecessor) for executive power. Last night, and throughout her campaign, Harris promised to override Congress and use executive orders to pass any policy she wants. 

Harris’ most talked-about moment of the debate last night was her argument with Biden over his erstwhile opposition to a federally mandated, nationwide busing program to help racially integrate public schools. Biden worked “to oppose busing, and there was a little girl in California who was part of the second class to integrate her public schools and she was bused to school every day, and that little girl was me,” said Harris—and lo and behold, her campaign was already selling t-shirts with that slogan by the end of the night.

Having previously opposed abolishing private health insurance, last night Harris was an enthusiastic champion of such plans. “In a January CNN town hall, Harris said she supported the measure, then walked those comments back almost immediately after,” Reason‘s Billy Binion noted. At last night’s debate, however, Harris was “one of two candidates to raise their hands when asked by moderators if they would eradicate all private insurance companies.”

Asked how she would pay for all these programs, Harris was evasive, saying that no one asked Republicans that. (Oh, yeah?) 

Of course, Harris was far from the only one to stink up the stage last night. Check out more Reason coverage of the second Democratic debate night below: 

QUICK HITS

  • Every candidate in last night’s Democratic debate said they would include undocumented immigrants in their universal health coverage plans. 
  • Tulsi Gabbard, Elizabeth Warren, and Cory Booker were the most searched Democratic presidential candidates after the first Democratic debate in Miami. After last night, Americans were searching for Harris, Pete Buttigieg, and Marianne Williamson:

  • Small government got a very small shoutout during last night’s debate: 

  • Hickenlooper also credited himself for Colorado’s legalization of marijuana. About that… 

  • Joe Biden got in one good line against Harris. Alas, this is kind of rich coming from someone who still supports the 1994 crime bill: 

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Kamala Harris Won the Democratic Debate by Fudging Her Record

The chattering classes have crowned Kamala Harris the winner of Thursday night’s Democratic presidential primary debate. As is so often the case with the senator from California and former top cop for that state, Harris earned her positive press with whoppers and attack lines carefully calculated for viral marketing potential. She may indeed have what it takes to be a winner—so did Donald Trump, whose propensity for bold and easily disproved falsehoods is also a hallmark Harris trait. 

What did Harris fudge the truth about? Let’s start with the big ones. 

Harris told viewers that she disagreed with President Obama’s policy of informing Immigration and Customs Enforcement (ICE) when undocumented immigrants were arrested for state or local crimes. But “as district attorney of San Francisco, Kamala Harris supported a city policy that required law enforcement to turn over undocumented juvenile immigrants to federal immigration authorities if they were arrested and suspected of committing a felony, regardless of whether they were actually convicted of a crime,” CNN notes. 

Another whopper: Harris claimed last night to have been one of the earliest and biggest proponents of police-worn body cameras. But as recently as 2015, she was arguing against making it California’s official statewide policy. “I as a general matter believe that we should invest in the ability of law enforcement leaders in specific regions and with their departments to use … discretion to figure out what technology they are going to adopt based on needs that they have and resources that they have,” Harris said at the time. 

She told debate viewers that as attorney general, she had required “that all my special agents would wear body cameras.” That’s true—Harris did require it of the small set of officers working directly for her, but not for officers statewide. 

Asked about the economy, Harris implied that low unemployment numbers in America are simply a reflection of poor people having to work two or three jobs just to get by. But that’s not how the employment numbers work. And as The Washington Post points out, “there are 7.8 million people who hold more than one job right now, just 5 percent of Americans with jobs. The percentage has been roughly steady since the Great Recession, and in fact is lower than in the mid-1990s, when it hovered around 6 percent.” 

In addition to these direct misrepresentations, Harris also made comments with at least a fuzzy relationship to reality. 

Harris spoke at one point of wanting rape victims to be able to run out into the street, flag down a cop, and be taken seriously and treated with respect. But when one underage girl in California did pretty much just that—running into an officer from Alameda County (Harris’ old prosecutorial stomping grounds) as she was fleeing a violent pimp—that cop instead started a sexual relationship with the girl and, later, so did several of his colleagues, while others helped cover these relationships up. When the young woman finally came forward, her lawyers begged Harris’s office to intervene and conduct an independent investigation into the Oakland Police Department. No dice. Harris was, at the time, busy bringing charges against the website Backpage—charges she knew were barred by federal law (thanks, Section 230!)—and running a campaign for the U.S. Senate. 

(Speaking of Backpage, check out this excellent new ReasonTV piece on the government’s war against the website, its founders, and sex workers at large, if you haven’t already. Harris makes plenty of villainous appearances alongside her many Republican counterparts in this tale.) 

Aside from a Trump-like propensity for twisting the truth, Harris also shares the current president’s hunger (and that of his predecessor) for executive power. Last night, and throughout her campaign, Harris promised to override Congress and use executive orders to pass any policy she wants. 

Harris’ most talked-about moment of the debate last night was her argument with Biden over his erstwhile opposition to a federally mandated, nationwide busing program to help racially integrate public schools. Biden worked “to oppose busing, and there was a little girl in California who was part of the second class to integrate her public schools and she was bused to school every day, and that little girl was me,” said Harris—and lo and behold, her campaign was already selling t-shirts with that slogan by the end of the night.

Having previously opposed abolishing private health insurance, last night Harris was an enthusiastic champion of such plans. “In a January CNN town hall, Harris said she supported the measure, then walked those comments back almost immediately after,” Reason‘s Billy Binion noted. At last night’s debate, however, Harris was “one of two candidates to raise their hands when asked by moderators if they would eradicate all private insurance companies.”

Asked how she would pay for all these programs, Harris was evasive, saying that no one asked Republicans that. (Oh, yeah?) 

Of course, Harris was far from the only one to stink up the stage last night. Check out more Reason coverage of the second Democratic debate night below: 

QUICK HITS

  • Every candidate in last night’s Democratic debate said they would include undocumented immigrants in their universal health coverage plans. 
  • Tulsi Gabbard, Elizabeth Warren, and Cory Booker were the most searched Democratic presidential candidates after the first Democratic debate in Miami. After last night, Americans were searching for Harris, Pete Buttigieg, and Marianne Williamson:

  • Small government got a very small shoutout during last night’s debate: 

  • Hickenlooper also credited himself for Colorado’s legalization of marijuana. About that… 

  • Joe Biden got in one good line against Harris. Alas, this is kind of rich coming from someone who still supports the 1994 crime bill: 

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Government Officials So Sorry That Their Own Rules Make Them Leave Kids in Filth

Refusals by federal facilities to accept donations of diapers, soap, toothpaste, and other goods intended to alleviate the miserable conditions in which detained immigrant children are being held made the rounds this week courtesy of a report on the issue by The Texas Tribune. Federal officials improbably insist they need no help, and also point to the Antideficiency Act, which can be interpreted as prohibiting the acceptance of donations in most circumstances. It’s an awful but hardly isolated case of government—a rule-making entity if there ever was one—insisting that it’s bound to do terrible things by rules that it created.

The thwarted donations were motivated by recent reports about nasty conditions at immigrant detention facilities.

Inspectors “observed immediate risks or egregious violations of detention standards at facilities in Adelanto, CA, and Essex County, NJ, including nooses in detainee cells, overly restrictive segregation, inadequate medical care, unreported security incidents, and significant food safety issues,” according to a June 3 report from the Department of Homeland Security’s Inspector General. With specific regard to the matter of toiletries, “detainees were not provided appropriate clothing and hygiene items to ensure they could properly care for themselves.”

This was just days after the same agency found overcrowding at another detention facility.

“The conditions within which they are held could be compared to torture facilities,” reported Dolly Lucio Sevier after inspecting two detention facilities for children in Texas. “To deny parents the ability to wash their infant’s bottles is unconscionable and could be considered intentional mental and emotional abuse.”

Partially in response to reports of appalling conditions, the Trump administration requested $4.5 billion in emergency border funds, which the House approved this week. That would seem to confirm that the federal government took on bigger duties at the border than it was prepared to support, and that donations should have been welcome.

But, so sorry, the feds say, the law doesn’t let us accept donated goods.

Well, maybe.

What the Antideficiency Act actually stipulates is that “an officer or employee of the United States Government or of the District of Columbia government may not accept voluntary services for either government or employ personal services exceeding that authorized by law except for emergencies involving the safety of human life or the protection of property.”

So, government officials and agencies aren’t supposed to accept freebies and uncompensated favors. But that exception for “emergencies involving the safety of human life” would seem to leave a little wiggle room for donations of hygiene supplies intended to offset conditions so unsafe and unsanitary that a physician compares them to “torture facilities” and the government seeks emergency funding.

After all, the Federal Emergency Management Agency, also under the Department of Homeland Security, has a whole set of procedures for accepting life-saving donations and even a handout “to help citizens understand how FEMA manages donated goods.”

But the immigrant detentions are part of a high-profile border policy under multiple administrations, on which the Trump White House has placed special emphasis. To accept donations would be to concede that, despite all the noise the federal government has made about the border “crisis,” it’s not up to the job of supplying toothpaste, diapers, and lice shampoo to the kids it makes sleep on concrete floors.

Conceding that would be embarrassing.

Pointing to the rules as disallowing donations, then, becomes a way for government officials to avoid admitting that they’re just not up to the mission they’ve taken on. Make enough rules and you can bind yourself to all sorts of convenient actions and inactions!

As a crowd-pleasing, vote-buying measure, Illinois officials expanded their state Medicaid plan back in 2014. Hundreds of thousands of new enrollees signed up—far more than anticipated. Unable to find the money to fund the swollen program, Illinois officials just didn’t pay the tab for patients treated by medical providers. They argued that Medicaid wasn’t a “core priority” that had to be funded first and in full, unlike payroll and pensions for government employees. Sorry we can’t pay our bills, but that would be against the rules we set for ourselves… 

When the unpaid bills tallied up to a whopping $3 billion, a federal judge ordered Illinois to cough up the cash and put the state government on a payment schedule. (Providers say they’re still getting stiffed.)

What connects the unconscionable circumstances of border detainees with Illinois’s deadbeatery?

Both are reminders that announcing grandiose policies is what politicians do, often to cheers and popular support. Following through, however, can be terribly inconvenient. It’s very handy to have rules in place that you can point to as the reason you fail to live up to obligations and instead do irresponsible and awful things.

Irresponsible and awful implementation of grandiose promises can result in unpaid bills and sick kids lying on filthy floors. Sure, government does terrible things intentionally, but perhaps it’s at its most contemptible when officials make promises and then tie their own hands so that they can act only in a half-assed way, making matters worse. They even—as we see in the case of the border detention centers—tie their hands so that they can avoid a bit of humiliation by letting members of the public undo some of the damage that has been done.

“We are looking at the possibility of using some of those donations going forward,” a Customs and Border Protection official told reporters Tuesday. That raises the possibility that a few diapers and fresh lice combs might make their way to the detained kids even before new federal funds filter through the system—courtesy, I guess, of a newly convenient interpretation of the law.

It’s fascinating to watch competing public relations priorities at work as outrage overwhelms embarrassment.

Fundamentally, nothing will have changed in the way government does what it does. Look for officials to continue making rules that “force” them to do terrible things when they don’t want to do what’s right.

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Justice Breyer’s opinion in the FUCT Trademark Case and the Neurology of Language

Penn Linguistics Prof. Mark Liberman has an interesting Language Log post expressing doubt about one aspect of Justice Breyer’s approach in his Iancu v. Brunetti dissent. Here’s an excerpt from the opening:

Justice Stephen Breyer’s opinion, “concurring in part and dissenting in part”, cites neurological evidence for what might be a constitutionally defensible form of “linguistic regulation” [emphasis added]:

“[S]cientific evidence suggests that certain highly vulgar words have a physiological and emotional impact that makes them different in kind from most other words. See M. Mohr, Holy S***: A Brief History of Swearing 252 (2013) (Mohr) (noting the ’emotional impact’ of certain profane words that ‘excite the lower-brain circuitry responsible for emotion,’ resulting in ‘electrical impulses that can be measured in the skin’). These vulgar words originate in a different part of our brains than most other words. Id., at 250. And these types of swear words tend to attract more attention and are harder to forget than other words.” …

Mohr indeed tells us on p. 250 that

“Scientists have found that swearing most likely originates in the right hemisphere of the brain, and within that half, in the ‘primitive’ part of the brain, the limbic system. The right half of the brain [which] is responsible for nonpropositional or automatic speech, which includes greetings, conventional expressions such as ‘not at all,’ counting, song lyrics, and swearwords. Propositional speech—words strung together in syntactically correct forms to create an original meaning—occurs in the left hemisphere.”

But the evidence for this conclusion is weak, in my opinion. It seems to consist (almost?) entirely in the observation that when the dominant (usually left) hemisphere is out of commission, for whatever reason, the right hemisphere has limited abilities to initiate speech, including some cussing among other things….

This tells us that the non-dominant hemisphere can usually say only a few stereotyped and overlearned things, and those badly. It doesn’t tell us that the right hemisphere is in control when someone with an intact brain produces a filled pause like “um”, counts to three, or cusses — the fact that the non-dominant hemisphere can cuss doesn’t mean that the dominant hemisphere can’t.

Click here to read the whole post.

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Government Officials So Sorry That Their Own Rules Make Them Leave Kids in Filth

Refusals by federal facilities to accept donations of diapers, soap, toothpaste, and other goods intended to alleviate the miserable conditions in which detained immigrant children are being held made the rounds this week courtesy of a report on the issue by The Texas Tribune. Federal officials improbably insist they need no help, and also point to the Antideficiency Act, which can be interpreted as prohibiting the acceptance of donations in most circumstances. It’s an awful but hardly isolated case of government—a rule-making entity if there ever was one—insisting that it’s bound to do terrible things by rules that it created.

The thwarted donations were motivated by recent reports about nasty conditions at immigrant detention facilities.

Inspectors “observed immediate risks or egregious violations of detention standards at facilities in Adelanto, CA, and Essex County, NJ, including nooses in detainee cells, overly restrictive segregation, inadequate medical care, unreported security incidents, and significant food safety issues,” according to a June 3 report from the Department of Homeland Security’s Inspector General. With specific regard to the matter of toiletries, “detainees were not provided appropriate clothing and hygiene items to ensure they could properly care for themselves.”

This was just days after the same agency found overcrowding at another detention facility.

“The conditions within which they are held could be compared to torture facilities,” reported Dolly Lucio Sevier after inspecting two detention facilities for children in Texas. “To deny parents the ability to wash their infant’s bottles is unconscionable and could be considered intentional mental and emotional abuse.”

Partially in response to reports of appalling conditions, the Trump administration requested $4.5 billion in emergency border funds, which the House approved this week. That would seem to confirm that the federal government took on bigger duties at the border than it was prepared to support, and that donations should have been welcome.

But, so sorry, the feds say, the law doesn’t let us accept donated goods.

Well, maybe.

What the Antideficiency Act actually stipulates is that “an officer or employee of the United States Government or of the District of Columbia government may not accept voluntary services for either government or employ personal services exceeding that authorized by law except for emergencies involving the safety of human life or the protection of property.”

So, government officials and agencies aren’t supposed to accept freebies and uncompensated favors. But that exception for “emergencies involving the safety of human life” would seem to leave a little wiggle room for donations of hygiene supplies intended to offset conditions so unsafe and unsanitary that a physician compares them to “torture facilities” and the government seeks emergency funding.

After all, the Federal Emergency Management Agency, also under the Department of Homeland Security, has a whole set of procedures for accepting life-saving donations and even a handout “to help citizens understand how FEMA manages donated goods.”

But the immigrant detentions are part of a high-profile border policy under multiple administrations, on which the Trump White House has placed special emphasis. To accept donations would be to concede that, despite all the noise the federal government has made about the border “crisis,” it’s not up to the job of supplying toothpaste, diapers, and lice shampoo to the kids it makes sleep on concrete floors.

Conceding that would be embarrassing.

Pointing to the rules as disallowing donations, then, becomes a way for government officials to avoid admitting that they’re just not up to the mission they’ve taken on. Make enough rules and you can bind yourself to all sorts of convenient actions and inactions!

As a crowd-pleasing, vote-buying measure, Illinois officials expanded their state Medicaid plan back in 2014. Hundreds of thousands of new enrollees signed up—far more than anticipated. Unable to find the money to fund the swollen program, Illinois officials just didn’t pay the tab for patients treated by medical providers. They argued that Medicaid wasn’t a “core priority” that had to be funded first and in full, unlike payroll and pensions for government employees. Sorry we can’t pay our bills, but that would be against the rules we set for ourselves… 

When the unpaid bills tallied up to a whopping $3 billion, a federal judge ordered Illinois to cough up the cash and put the state government on a payment schedule. (Providers say they’re still getting stiffed.)

What connects the unconscionable circumstances of border detainees with Illinois’s deadbeatery?

Both are reminders that announcing grandiose policies is what politicians do, often to cheers and popular support. Following through, however, can be terribly inconvenient. It’s very handy to have rules in place that you can point to as the reason you fail to live up to obligations and instead do irresponsible and awful things.

Irresponsible and awful implementation of grandiose promises can result in unpaid bills and sick kids lying on filthy floors. Sure, government does terrible things intentionally, but perhaps it’s at its most contemptible when officials make promises and then tie their own hands so that they can act only in a half-assed way, making matters worse. They even—as we see in the case of the border detention centers—tie their hands so that they can avoid a bit of humiliation by letting members of the public undo some of the damage that has been done.

“We are looking at the possibility of using some of those donations going forward,” a Customs and Border Protection official told reporters Tuesday. That raises the possibility that a few diapers and fresh lice combs might make their way to the detained kids even before new federal funds filter through the system—courtesy, I guess, of a newly convenient interpretation of the law.

It’s fascinating to watch competing public relations priorities at work as outrage overwhelms embarrassment.

Fundamentally, nothing will have changed in the way government does what it does. Look for officials to continue making rules that “force” them to do terrible things when they don’t want to do what’s right.

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Facial Recognition Tech Straight Out of ‘Robocop’ Could Be a Real Threat to Civil Liberties

Nearly a decade ago, the spokesman for a company that produces Tasers and body cameras for police departments envisioned the day when “every cop is Robocop.” He was referring to then-nascent facial-recognition software, which lets police nab suspects based on an image grabbed from a camera, and a science-fiction movie about crime-fighting cyborg cops.

Technology advances at such rapid speeds that such a day already is here in authoritarian China. It’s also gaining a foothold within American law-enforcement agencies that use body cameras. Such cameras have become ubiquitous for good reason. By recording police interactions with the public, the cameras depict police interactions with the public. They are a tool for improving accountability and building community trust.

But police departments—spurred by tech companies that might make a fortune selling high-technology products to government agencies—are turning this public-spirited tool into a means of constant surveillance. Evolving software applications will let police record every encounter and match up a citizen’s face with a database, thus enabling an officer to make an arrest or call in a SWAT team based solely on an algorithm.

There are myriad problems here. But it’s best to start with that “Robocop” analogy. The 1987 blockbuster pointed to a terrifying future where a nefarious corporation takes over policing in gang-infested Detroit. Its droid gruesomely kills an innocent person. The company then relies on the half-man, half-machine Robocop. The movie takes swipes at corruption, privatization and authoritarianism, but ultimately is about the triumph of humanity over machinery.

Civil-liberties concerns have driven California lawmakers to consider Assembly Bill 1215, which would ban police agencies from using facial and biometric tracking devices as part of their body cameras.

“Having every patrol officer constantly scanning faces of everyone that walks into their field of view to identify people, run their records, and record their location and activities is positively Orwellian,” said ACLU attorney Peter Bibring.

This technology is creepy, especially when one considers the next step that’s under active development: Tying facial-recognition software into security cameras that are practically everywhere. The bill’s author, Assemblyman Phil Ting (D–San Francisco), points to an incident in China where the authorities used recognition software to grab someone from a crowd of 20,000 people during a concert.

Opponents of the ban naively insist that there’s no difference between using such software and looking at a mugshot—and that police are still required to follow the Constitution’s Fourth Amendment restraints on unreasonable searches. That’s nonsensical. Police admit that they want to use these cameras as part of wholesale dragnets, by scanning everyone at public events and not only those that they suspect of having committed a crime.

In its official opposition to the bill, the Riverside Sheriffs’ Association argues that, “Huge events…and scores of popular tourist attractions should have access to the best available security—including the use of body cameras and facial-recognition technology.” There you have it. The goal of police is to scan our faces at every event.

This is far more intrusive than those checkpoints in totalitarian countries where people must constantly show their papers. In this emerging Robocop world, every American will always be identifiable to the authorities simply by walking around in public. If your face alarms the software, the police will get you.

There are many practical concerns, as well. Let’s say I get pulled over for driving 75 MPH on the freeway and the officer approaches my vehicle. His body camera scans my face and compares it to tens of thousands of photos of older, bald, overweight white guys. It triggers a match and instantly the officer draws his gun or calls for backup. In other words, this software can turn a simple stop into a potentially dangerous situation.

That’s of particular concern given how inaccurate facial-recognition software can be. “Facial recognition technology has misidentified members of the public as potential criminals in 96 per cent of scans so far in London, new figures reveal,” according to a May report in the Independent. A Commerce Department study found a high rate of accuracy, but misidentification still was common. How would you like to be wrongly tagged as a gang-banger?

According to the Assembly analysis, the ACLU used such software to compare photos of all federal legislators and “incorrectly matched 28 members of Congress with people who had been arrested. The test disproportionately misidentified African-American and Latino members of Congress as the people in mug shots.” The company that produced the software disputed the ACLU’s approach, but this is disturbing, especially in terms of racial bias.

Republicans often complain about big government and creeping socialism, yet the only Republican to thus far support this bill is state Assemblyman Tyler Diep (R–Orange County), who was born in communist Vietnam. Good for him. “Robocop” provided dystopian warnings about the creation of a police state. It wasn’t a model for a free society.

This column was first published in the Orange County Register.

Steven Greenhut is Western region director for the R Street Institute. Write to him at sgreenhut@rstreet.org.

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Justice Breyer’s opinion in the FUCT Trademark Case and the Neurology of Language

Penn Linguistics Prof. Mark Liberman has an interesting Language Log post expressing doubt about one aspect of Justice Breyer’s approach in his Iancu v. Brunetti dissent. Here’s an excerpt from the opening:

Justice Stephen Breyer’s opinion, “concurring in part and dissenting in part”, cites neurological evidence for what might be a constitutionally defensible form of “linguistic regulation” [emphasis added]:

“[S]cientific evidence suggests that certain highly vulgar words have a physiological and emotional impact that makes them different in kind from most other words. See M. Mohr, Holy S***: A Brief History of Swearing 252 (2013) (Mohr) (noting the ’emotional impact’ of certain profane words that ‘excite the lower-brain circuitry responsible for emotion,’ resulting in ‘electrical impulses that can be measured in the skin’). These vulgar words originate in a different part of our brains than most other words. Id., at 250. And these types of swear words tend to attract more attention and are harder to forget than other words.” …

Mohr indeed tells us on p. 250 that

“Scientists have found that swearing most likely originates in the right hemisphere of the brain, and within that half, in the ‘primitive’ part of the brain, the limbic system. The right half of the brain [which] is responsible for nonpropositional or automatic speech, which includes greetings, conventional expressions such as ‘not at all,’ counting, song lyrics, and swearwords. Propositional speech—words strung together in syntactically correct forms to create an original meaning—occurs in the left hemisphere.”

But the evidence for this conclusion is weak, in my opinion. It seems to consist (almost?) entirely in the observation that when the dominant (usually left) hemisphere is out of commission, for whatever reason, the right hemisphere has limited abilities to initiate speech, including some cussing among other things….

This tells us that the non-dominant hemisphere can usually say only a few stereotyped and overlearned things, and those badly. It doesn’t tell us that the right hemisphere is in control when someone with an intact brain produces a filled pause like “um”, counts to three, or cusses — the fact that the non-dominant hemisphere can cuss doesn’t mean that the dominant hemisphere can’t.

Click here to read the whole post.

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Facial Recognition Tech Straight Out of ‘Robocop’ Could Be a Real Threat to Civil Liberties

Nearly a decade ago, the spokesman for a company that produces Tasers and body cameras for police departments envisioned the day when “every cop is Robocop.” He was referring to then-nascent facial-recognition software, which lets police nab suspects based on an image grabbed from a camera, and a science-fiction movie about crime-fighting cyborg cops.

Technology advances at such rapid speeds that such a day already is here in authoritarian China. It’s also gaining a foothold within American law-enforcement agencies that use body cameras. Such cameras have become ubiquitous for good reason. By recording police interactions with the public, the cameras depict police interactions with the public. They are a tool for improving accountability and building community trust.

But police departments—spurred by tech companies that might make a fortune selling high-technology products to government agencies—are turning this public-spirited tool into a means of constant surveillance. Evolving software applications will let police record every encounter and match up a citizen’s face with a database, thus enabling an officer to make an arrest or call in a SWAT team based solely on an algorithm.

There are myriad problems here. But it’s best to start with that “Robocop” analogy. The 1987 blockbuster pointed to a terrifying future where a nefarious corporation takes over policing in gang-infested Detroit. Its droid gruesomely kills an innocent person. The company then relies on the half-man, half-machine Robocop. The movie takes swipes at corruption, privatization and authoritarianism, but ultimately is about the triumph of humanity over machinery.

Civil-liberties concerns have driven California lawmakers to consider Assembly Bill 1215, which would ban police agencies from using facial and biometric tracking devices as part of their body cameras.

“Having every patrol officer constantly scanning faces of everyone that walks into their field of view to identify people, run their records, and record their location and activities is positively Orwellian,” said ACLU attorney Peter Bibring.

This technology is creepy, especially when one considers the next step that’s under active development: Tying facial-recognition software into security cameras that are practically everywhere. The bill’s author, Assemblyman Phil Ting (D–San Francisco), points to an incident in China where the authorities used recognition software to grab someone from a crowd of 20,000 people during a concert.

Opponents of the ban naively insist that there’s no difference between using such software and looking at a mugshot—and that police are still required to follow the Constitution’s Fourth Amendment restraints on unreasonable searches. That’s nonsensical. Police admit that they want to use these cameras as part of wholesale dragnets, by scanning everyone at public events and not only those that they suspect of having committed a crime.

In its official opposition to the bill, the Riverside Sheriffs’ Association argues that, “Huge events…and scores of popular tourist attractions should have access to the best available security—including the use of body cameras and facial-recognition technology.” There you have it. The goal of police is to scan our faces at every event.

This is far more intrusive than those checkpoints in totalitarian countries where people must constantly show their papers. In this emerging Robocop world, every American will always be identifiable to the authorities simply by walking around in public. If your face alarms the software, the police will get you.

There are many practical concerns, as well. Let’s say I get pulled over for driving 75 MPH on the freeway and the officer approaches my vehicle. His body camera scans my face and compares it to tens of thousands of photos of older, bald, overweight white guys. It triggers a match and instantly the officer draws his gun or calls for backup. In other words, this software can turn a simple stop into a potentially dangerous situation.

That’s of particular concern given how inaccurate facial-recognition software can be. “Facial recognition technology has misidentified members of the public as potential criminals in 96 per cent of scans so far in London, new figures reveal,” according to a May report in the Independent. A Commerce Department study found a high rate of accuracy, but misidentification still was common. How would you like to be wrongly tagged as a gang-banger?

According to the Assembly analysis, the ACLU used such software to compare photos of all federal legislators and “incorrectly matched 28 members of Congress with people who had been arrested. The test disproportionately misidentified African-American and Latino members of Congress as the people in mug shots.” The company that produced the software disputed the ACLU’s approach, but this is disturbing, especially in terms of racial bias.

Republicans often complain about big government and creeping socialism, yet the only Republican to thus far support this bill is state Assemblyman Tyler Diep (R–Orange County), who was born in communist Vietnam. Good for him. “Robocop” provided dystopian warnings about the creation of a police state. It wasn’t a model for a free society.

This column was first published in the Orange County Register.

Steven Greenhut is Western region director for the R Street Institute. Write to him at sgreenhut@rstreet.org.

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