Category: reason

Last week, Sen. Rand Paul (R-Ky.) said he was “very concerned” about Supreme Court nominee Brett Kavanaugh’s “position on privacy and the Fourth Amendment.” As Paul explained, “Kavanaugh’s position is basically that national security trumps privacy…that worries me.”

Today, Paul announced that he is no longer worried. “After meeting Judge Kavanaugh and reviewing his record, I have decided to support his nomination,” Paul declared.

Paul’s concerns centered on Judge Kavanaugh’s 2015 statement concurring in the denial of rehearing en banc in Klayman v. Obama, which was then before the U.S. Court of Appeals for the District of Columbia Circuit. That case centered on the constitutionality of the National Security Agency’s controversial information-gathering program, which involved the NSA collecting the telephony metadata of all Americans. “In my view,” Kavanaugh wrote, “the Government’s metadata collection program is entirely consistent with the Fourth Amendment.”

Klayman put Kavanaugh at odds with Paul, who has repeatedly maintained that, “the bulk collection of all Americans’ phone records all of the time is a direct violation of the Fourth Amendment.”

So what caused Paul to stop worrying about Kavanaugh’s Klayman opinion? “In reviewing his record,” Paul announced today, “and through my conversation with him, I have hope that in light of the new precedent in Carpenter v. United States, Judge Kavanaugh will be more open to a Fourth Amendment that protects digital records and property.”

In Carpenter v. United States, decided just last month, the Supreme Court ruled that a warrantless government search of a criminal suspect’s historic cellphone location records violated the Fourth Amendment. This precedent does indeed cut against Kavanaugh’s previous legal justifications for warrantless data collection.

Paul’s announcement today suggests that in his private meeting with Kavanaugh, the SCOTUS nominee signaled his willingness to take a new view of the Fourth Amendment in light of Carpenter. If that is the case, Kavanaugh should say so publicly during his Senate confirmation hearings.

With the nomination of Brett Kavanaugh to the Supreme Court, for the first time in 45 years, the pro-life lobby has a shot at overturning Roe v. Wade, the admittedly flawed Supreme Court ruling that acknowledged that women have a constitutional right to make reproductive choices. However, at the same time, it seems, public support for banning abortion has dipped post-Trump, perhaps due to his harsh talk.

Until now, the pro-life lobby has been very careful not to demonize mother who have abortions. However, now they might be tempted to whip up flailing support by doubling down on their argument that “abortion is murder” and women who opt to have abortions are murderers.

But that would be a big mistake both philosophically and strategically, I note in my column at The Week. Mothers are best placed to balancing and maximizing their own and their child’s wellbeing because they are the only ones who have a direct and vital interest on both sides here. “There is no other situation in life where this is the case,” I note. “The state can regulate murder because in every murder, even one in self-defense, the perpetrator has an interest only in himself, not the person killed. So someone needs to ensure that the victim’s interests are adequately represented. That is not the case with abortion.”

Go here to read the piece.

Ruth Bader Ginsburg, the oldest Supreme Court justice on the bench, says she’s not retiring any time soon.

“I’m now 85,” Ginsburg said Sunday, according to CNN. “My senior colleague, Justice John Paul Stevens, he stepped down when he was 90, so think I have about at least five more years.”

Ginsburg’s comments suggest the liberal justice doesn’t want to give President Donald Trump the chance to pick her replacement. Trump has already nominated two conservative justices—Neil Gorsuch and Brett Kavanaugh—to the Court. The former was confirmed last year, while the Senate has yet to vote on the latter. If Trump gets another pick, he could have the opportunity to solidify the Court’s conservative majority for decades to come.

Ginsburg, nominated by President Bill Clinton, has reportedly hired law clerks to last her through the 2020 term. And she has previously expressed her desire to stay on the Court until she’s no longer able to do so. “As long as I can do the job full steam, I will do it,” she said in October.

Speaking in New York on Sunday after viewing The Originalist, a play about the late Justice Antonin Scalia, Ginsburg said she doesn’t think justices should be forced to step down if they don’t want to. “You can’t set term limits, because to do that you’d have to amend the Constitution,” Ginsburg said. “Article III says…we hold our offices during good behavior.”

As The Washington Post notes, Ginsburg’s fans have obsessed over her well-being ever since Trump became president, particularly after Justice Anthony Kennedy announced his retirement last month.

There’s no denying that Ginsburg is getting up there in age. Kennedy is three years younger than Ginsburg, and the next oldest justice—Stephen Breyer—is 79. According to Business Insider, the average age of the last 11 justices to announce their retirement is 80.

An impending fight over President Donald Trump’s proposed southern border wall could result in another government shutdown.

Since the House has already adjourned for the summer, representatives will have 11 legislative days in September to avoid a government shutdown prior to the midterm elections. The House of Representatives approved a spending package recently that would allocate $1.6 billion to the wall; the vote was mostly split along party lines. The Senate has yet to vote on the question.

Trump tweeted Sunday morning that he was “willing” to shut down the government if the Democrats blocked spending for his immigration policies:

I would be willing to “shut down” government if the Democrats do not give us the votes for Border Security, which includes the Wall! Must get rid of Lottery, Catch & Release etc. and finally go to system of Immigration based on MERIT! We need great people coming into our Country!

— Donald J. Trump (@realDonaldTrump) July 29, 2018

As usual with Trump’s tweets, it is unclear whether this was a serious threat or just a passing thought while his phone was handy.

Trump made the border wall a pillar of his presidential campaign, but at the time insisted that Mexico would foot the bill for the project. Just weeks before his inauguration in 2017, Republican leaders in Congress revealed that the wall would actually be paid for by U.S. taxpayers, not the Mexico. This prompted Trump to tweet a slight revision to his campaign promise, asserting that the funds would actually be “paid back by Mexico later.”

One report says the wall would require an estimated $18 billion over the next 10 years. Maintenance costs would eat up an additional $48.3 billion during that decade decade. And these estimates largely depend on what the Cato Institute has called “unrealistically cheap construction costs.”

Cronyist steel manufacturers are helping to guide the Commerce Department’s opaque system for determining which American companies get exemptions from a 25 percent tariff on imported steel. In the process, they are creating potential shortages and hiking prices along the supply chain.

Steel-consuming businesses are worried about the influence being exerted by domestic manufacturers such as U.S. Steel and Nucor, which have an economic incentive to limit the number of exemptions granted by the Commerce Department. The department allows steelmakers to comment on waiver applications but does not give steel-consuming businesses an opportunity to rebut those claims or to challenge the department’s final decisions in court. With little transparency or due process, the entire waiver procedure is open to abuse.

“The current exclusion process is broken—it’s opaque, unfair, and breathtakingly inconsistent,” says Rep. Jackie Walorski (R-Ind.), whose office has conducted a review of the waiver applications granted and denied by the Commerce Department.

After the Trump administration imposed a 25 percent tariff on imported steel and a 10 percent tariff on imported aluminum, the Commerce Department began accepting applications from American businesses seeking exemptions from those tariffs, which can be granted if domestic supply is insufficient to meet a company’s needs. When a company applies, there is a 30-day comment period that allows anyone, including competitors, to argue for or against the waiver. More than 20,000 waiver applications have been filed, but the department has made decisions on only about 1,100 of them.

Of the applications where decisions have been made, the Commerce Department has yet to approve a single application that prompted U.S. Steel or Nucor to raise an objection, according to Walorski.

In the 550 applications that have been denied, the department routinely provides no explanation for its decisions beyond stating that there is sufficient quantity and quality of domestic supply, or that the application was incomplete. The department provides no explanations of how it reached its decisions and it does not disclose its analysis, Walorski says.

The whole process seems to deliberately favor steelmakers over steel-consuming businesses. That shouldn’t be surprising, since that’s exactly what Trump’s tariff policy does: punish anyone who buys steel in order to prop up domestic steel manufacturers. In more than 5,000 public comments reviewed by Walorski’s office, U.S. Steel and Nucor were the two most prolific commenters.

Steel-consuming businesses believe those manufacturers are manipulating the process to limit exemptions.

“It’s hard not to interpret that the Commerce Department wants domestic suppliers to have an edge,” Daniel Shackell, vice president of Crown Cork & Seal, a Philadelphia-based manufacturer of metal packaging, tells the Associaed Press. The company has made 70 waiver requests to the Department of Commerce; so far, eight have been granted and 12 denied.

In testimony to the House Ways and Means Committee last week, the executive of a Texas-based pipeline builder said the process did not allow adequate time for businesses to respond to objections raised by U.S. Steel and other manufacturers. Once an application is submitted, there is little interaction between the government and the applicant, and there is no opportunity for businesses to “state their case,” said Willie Chiang, vice president of Plains All American GP.

Those are “due process flaws that do not exist with respect to most other government procedures,” Chiang complained.

Out of more than 5,700 objections submitted in response to steel and aluminum exclusion requests, only 54 were posted before the end of the comment period, leaving businesses no opportunity to respond.

“There are major structural issues that are causing uneven outcomes,” says Walorski. “The deck seems to be stacked toward one side right now and it needs to be rebalanced.”

The confusion and cronyism on display in the tariff waiver process is not exactly unexpected. Shortly after the applications started coming in, an unnamed Commerce Department official told The Washington Post that the review process was “going to be so unbelievably random, and some companies are going to get screwed.”

The companies getting screwed include more than just those that have waiver applications denied. With imported steel suddenly much more expensive, domestic suppliers are being overrun with orders and cannot meet demand. That’s causing delays, shortages, and other supply chain problems.

“For us to get the raw plate material to fabricate it used to be we would order steel today and get the steel two months later. Now, it’s five to six months,” said Evan Morrison, vice president of Ohio Structures, Inc., tells the Akron Beacon Journal. The paper reports that these tariff-caused delays are affecting public projects, such as a major highway renovation near Columbus.

And so the Commerce Department is quite literally picking winners and losers. It’s not all that different from what’s happening to American farmers: Many of them stand to lose from a trade war with China, and some of those many are now supposed to receive a $12 billion bailout. Trump’s tariffs are distorting the economy and extending the government’s authority to decide which businesses succeed and which fail. Once upon a time, conservatives would have protested that.

On a cool Virginia day in 2011, Kim Brooks let her son wait in the car for 5 minutes while she ran into the store. Someone saw this, called 911, and got Kim arrested.

But had she literally put her son in harm’s way? No. This was a thought crime—the cops thought up scary scenarios that could happen, no matter how unlikely. That’s all it took.

Now, Brooks has this weekend’s most-read piece in The New York Times: “Motherhood in the Age of Fear.” She writes:

The police seemed to think it was child abuse or neglect — that someone could have hurt or kidnapped my son while I was gone.

When I tried to explain this to my outraged father, he said: “Last I checked, kidnapping is a crime. Someone could break into my house and shoot me in the head, but the police aren’t showing up to arrest me if I forget to lock my door.”

“I don’t think they see it the same way when kids are involved,” I told him.

“The same way,” he said. “You mean rationally?”

Yo go, Dad. And you go, Kim.

In her fantastic new book, Small Animals: Parenthood in the Age of Fear, Brooks eventually moves from shame to anger as she starts digging into this obsession we have with child kidnapping, predators, and all sorts of worst-case scenarios that we use as an excuse to hector moms who dare take their eyes off their kids. After all, she writes:

Statistically speaking, a child is far more likely to be killed in a car on the way to a store than waiting in one that is parked. But we have decided such reasoning is beside the point.

…I was beginning to understand that it didn’t matter if what I’d done was dangerous; it only mattered if other parents felt it was dangerous. When it comes to kids’ safety, feelings are facts.

This decision to act on our fears as if they are real—the definition of panic—has changed both childhood and parenting. If kids are no longer allowed any freedom, parents aren’t either.

The result, for kids, is a childhood where they are monitored, shuttled, and kept inside like prisoners. No wonder childhood diabetes, anxiety, and even suicide are up.

But if children must be guarded, parents must be guards. That means that parenting has gone from teaching kids independence—”Be home by dinner!”—to stunting it.

It also means getting screamed at, or arrested, if you dare to trust your kid and your community.

Brooks argues that moms bear the brunt of this, because when the definition of caregiver becomes “Person whose job is to protect children from ever-looming death,” any distraction is tantamount to endangering a precious child.

But Brooks also thinks we might just be getting sick of this histrionic terror in these safest of times, and that things are beginning to change:

In March, Utah became the first state to pass a law protecting “free-range” parents. Other states may soon follow. Lenore Skenazy, the founder of the Free-Range Kids movement, is the president of Let Grow, a nonprofit that helps parents, teachers and organizations find ways to support childhood independence and resiliency. And among mothers I know, there seems to be a slow-brewing backlash to the idea that we should let our lives be ruled by the twin fears of danger and of disapprobation.

When more states pass Utah-like laws declaring there is a difference between taking your eyes off your kids and neglect, more parents will be able to breathe a little freer. Which means kids will be able to breathe freer. Which means we will all enjoy a freer country, where we can’t arrest parents just because we’ve lost our minds.

You can find an info packet on the Free-Range Parenting law here.

A Virginia Democrat running for the U.S. House of Representatives is going after her Republican opponent’s alleged fascination with Bigfoot erotica.

Democrat Leslie Cockburn, a longtime journalist and progressive activist (and sister-in-law of the late Alexander Cockburn), is facing off against Republican Denver Riggleman, a former Air Force intelligence officer who owns a distillery. The candidates are running in Virginia’s 5th Congressional District.

On Sunday, Cockburn posted screenshots from Riggleman’s Instagram page of two nude illustrations of Bigfoot. The legendary creature’s genitals are censored and Riggleman’s head is superimposed onto the second image. In the captions, Riggleman teased the release of a book titled Mating Habits of Bigfoot and Why Women Want Him and suggested the illustrations would be “cover art.”

Cockburn blasted Riggleman as “a devotee of Bigfoot erotica”—and accused him of “campaigning with a white supremacist” too:

My opponent Denver Riggleman, running mate of Corey Stewart, was caught on camera campaigning with a white supremacist. Now he has been exposed as a devotee of Bigfoot erotica. This is not what we need on Capitol Hill. pic.twitter.com/0eBvxFd6sG

— Leslie Cockburn (@LeslieCockburn) July 29, 2018

From my opponent Denver Riggleman’s Bigfoot erotica collection. pic.twitter.com/ELe0TWJh21

— Leslie Cockburn (@LeslieCockburn) July 29, 2018

Riggleman says the illustrations are nothing more than a joke. As the Charlottesville Daily Progress reports:

According to Riggleman the posts do not originate from “Bigfoot erotica,” but are a joke his military friends played on him. When he posted the images, Riggleman said, he never thought they would be used against him politically and described the tweets from Cockburn as “absurd.”

Riggleman does have an interest in Bigfoot, having co-authored a book titled Bigfoot Exterminators Inc.: The Partially Cautionary, Mostly True Tale of Monster Hunt 2006. According to the Cook Political Report, Riggleman only recently deleted a Facebook author page promoting his “Mating Habits” book.

But it seems more likely that Riggleman has a weird sense of humor than that he’s actually a “devotee of Bigfoot erotica.” After all, the bio on his Instagram page, which has been set to private, suggests he doesn’t take himself too seriously:

Own a distillery, consult on DoD matters and had a fun run for Governor. Love whiskey, hate tyranny and embrace liberty. Whiskey Rebellion always!

It’s not the first time that monster porn has influenced a political race. Paul Evans, a Democratic candidate for Oregon’s state legislature, was criticized in 2014 for writing a vampire erotica novel. Voters must not have cared too much, as Evans defeated his Republican opponent in the general election.

Cockburn’s line of attack seems especially curious. As she mentioned, Riggleman has been accused of campaigning with white supremacist Isaac Smith. If Riggleman sympathizes with white supremacists (he says he doesn’t), then voters have a legitimate reason to reject him in November.

But Riggleman’s interest or lack thereof in Bigfoot erotica has no bearing on how he’ll represent his district on Capitol Hill. Surely it’s time for us to grow as a society and put these dark days of sasquatch-shaming behind us.

“I am honestly undecided. I am very concerned about his position on privacy and the Fourth Amendment.” Those are the words of Sen. Rand Paul (R-Ky.), speaking to Politico last week about whether or not he will vote to confirm Judge Brett Kavanaugh to a seat on the U.S. Supreme Court. With the Senate currently divided almost equally along party lines, Paul’s vote on the Kavanaugh nomination could prove decisive.

“Kavanaugh’s position is basically that national security trumps privacy,” Paul observed. “He said it very strongly and explicitly. And that worries me.”

Paul has reason to be worried. In 2015, Judge Kavanaugh argued that the federal government’s wholesale warrantless collection of every Americans’ telephone record metadata does not violate the Constitution. “In my view,” Kavanaugh wrote, “the Government’s metadata collection program is entirely consistent with the Fourth Amendment.”

Furthermore, Kavanaugh continued, “even if the bulk collection of telephony metadata constitutes a search,” the program is still permissible because the Fourth Amendment “bars only unreasonable searches and seizures. And the Government’s metadata collection program,” he asserted, “readily counts as reasonable” because it “serves a critically important special need—preventing terrorist attacks on the United States.” He concluded: “That critical national security need outweighs the impact on privacy occasioned by this program.”

Such views would seem to put Kavanaugh directly at odds with Paul, who has made a name for himself in the Senate as a prominent voice in favor of broad Fourth Amendment protections.

During his 2013 filibuster over domestic drone strikes, for instance, Paul faulted the Bush administration for “wiretap[ping] phones without a warrant.” Paul then applauded President Obama for saying that “we should have warrants before we tap people’s phones and that we shouldn’t be trolling through people’s records.”

In that same filibuster, Paul lambasted his fellow conservatives for failing to take the Fourth Amendment seriously. “I always kind of joke that if you go to a conservative meeting and you talk about the Second Amendment, everybody pats you on the back and they all love you—until you get to the Fourth Amendment.” But as Paul explained, such conservatives only reveal their constitutionally illiteracy. “How are your guns going to be protected if they can come in your house without a warrant? You have to have the Fourth Amendment.”

Two years later, when he filibustered against the reauthorization of the Patriot Act, Paul doubled down on his Fourth Amendment advocacy while sharply criticizing warrantless government surveillance and bulk metadata collection.

“Is the standard to be if you have nothing to hide, you have nothing to fear but that everything should be exposed to the government, that all of your records can be collected?” Paul asked. His answer: “The bulk collection of all Americans’ phone records all of the time is a direct violation of the Fourth Amendment.” Paul was referring to the very same government program that Kavanaugh described as “entirely consistent with the Fourth Amendment.”

To be sure, it is possible that Kavanaugh has changed his mind about the underlying constitutional issues and now regrets writing that opinion. If so, that would be a welcome development. The members of the Senate Judiciary Committee should press him during his confirmation hearings to further explain his views on this crucial legal matter.

The future of the Fourth Amendment is one of the most significant issues facing the Supreme Court. Given his judicial record in this area, Brett Kavanaugh has given Rand Paul and other critics cause for concern.

A grim picture of privacy and civil liberties at the airport. Under the “Quiet Skies” program, federal air marshals are targeting people who “are not under investigation by any agency and are not in the Terrorist Screening Data Base,” according to an internal Transportation Security Administration (TSA) bulletin from March.

These agents “have begun following ordinary US citizens not suspected of a crime or on any terrorist watch list and collecting extensive information about their movements and behavior,” reports The Boston Globe. The memo says the program aims to catch threats “posed by unknown or partially known terrorists,” but insiders say there’s little consistency or criteria for how or why travelers get tracked.

TSA officials would not confirm to the paper that the program exists. But documents reviewed by the paper show that “thousands of unsuspecting Americans have been subjected to targeted airport and inflight surveillance, carried out by small teams of armed, undercover air marshals,” writes the Globe‘s Jana Winter.

Signs of suspicious behavior include:

• being “abnormally aware of surroundings” (which apparently includes things like boarding last or watching the boarding area “from afar”);
• exhibiting supposed “behavioral indicators” of up-to-no-goodness (including sweating, having body odor, rubbing one’s hands together, face touching, or “other”); and
• sleeping on a flight, either “briefly” or “for most of” it.

Federal agents are also instructed to take notes on whether a traveler has lost or gained wait, changed his or her hair style, shaved, grown a beard, or gotten any tattoos or piercings since last being spied on; whether a traveler checked baggage; whether a traveler possessed a phone and or computer; whether a traveler left the airport via tax, bus, private vehicle, public transit, or a rental car; and how many times he or she go to the bathroom. Winter adds:

Deploying air marshals to gather intelligence on civilians not on a terrorist watch list is a new assignment, one that some air marshals say goes beyond the mandate of the US Federal Air Marshal Service. Some also worry that such domestic surveillance might be illegal. Between 2,000 and 3,000 men and women, so-called flying FAMs, work the skies.

It’s not just federal employees who are spying while you’re flying. The Department of Homeland Security has been training airline and airport staff on how to “spot the signs” of human trafficking, with a list about as asinine and broad as the above TSA criteria. So far, this has led to an array of travelers getting harassed and detained because some airline attendant had a “hunch” that interracial families are probably human traffickers.

The latest example, told in full absurdist splendor by the Daily Mail, involves Hawaiian Airlines flight attendant Wesley Hirata informing the authorities that there was an Asian man with three Caucasian girls on a flight. The Mail calls Hirata and her colleagues “heroes” for “alerting cops to [a] human trafficking suspect who boarded a flight with three young girls.”

Two of the “young girls” were adults. The FBI investigated and found no evidence of anything bad going on. “Regardless,” the Mail reports, “Hirata has said he’s pleased” with himself for calling the FBI on some totally innocent travelers.

FREE MARKETS

Why you can’t download 3D-printed gun plans in Pennsylvania. After Texas nonprofit Defense Distributed published plans for 3D-printing an AR-15 semiautomatic rifle, Pennsylvania authorities filed a lawsuit trying to block residents from downloading the it. In an emergency hearing least night, a federal court agreed that Defense Distributed should block Pennsylvanians from accessing the plans, at least for now.

“In New Jersey, officials also had sought to block downloading of the plans for that state’s residents by means of a cease-and-desist letter,” notes The Inquirer. “But Defense Distributed challenged that effort on Sunday by filing a federal lawsuit in Texas.”

Defense Distributed Director Cody Wilson told the paper: “Americans have the right to this data. We have the right to share it. Pennsylvania has no right to come in and tell us what we can and can’t share on the internet.”

FREE MINDS

New lawsuits accuse federal immigration facilities of quashing freedom of religion. Public defender Lisa Hay filed the suit on behalf of 123 asylum-seekers intercepted by Immigration and Customs Enforcement agents on May 31 and taken to the Sheridan Federal Correctional Facility in Sheridan, Oregon.

The suit claims that the prison is refusing to allow religious accommodations for Sikh and Hindu detainees. “The Sikh detainees have not been allowed to wear turbans and instead have either been uncovered or forced to make do with towels, t-shirts, hats, or other inadequate coverings,” states the suit, and Hindu prisoners are reportedly being denied religious texts.

Hay has also filed petitions on behalf of many of the asylum seekers, alleging a litany of abuses and poor conditions at the facility.

“Here we have come to save our lives but I think we will die here in jail,” one asylum-seeker is quoted in an affidavit.

QUICK HITS

What straws looked like when the Constitution was written vs. the assault straws of today… pic.twitter.com/XDENllfyz6

— Tim Young (@TimRunsHisMouth) July 27, 2018

• Former Trump campaign manager Paul Manafort goes on trial starting tomorrow over his consulting work in Ukraine.
• Does Capitol Hill need more Bigfoot Erotica? Discuss.
• The New York Times is running Trump-administration fanfic now.
• “End demand” prostitution policies are bad for public health, say researchers.
• “In the past decade, nearly 26,000 murders have gone without an arrest in major American cities,” notes The Washington Post. “Of those, more than 18,600 of the victims—almost three‑quarters—were black.”
• The president is reportedly very displeased with brutalist architecture.
• Operation Chokepoint updated for the Trump era? Bank of America citizenship questions are causing alarm to account holders.

  This is 5-year-old Brooke Adams of Santa Rosa. She has a rare life-threatening condition that causes her to have seizures. Her family gives her cannabis oil as a treatment but that is keeping her from attending public schools. The legal fight currently underway @abc7newsbayarea 5 pic.twitter.com/kDF5K5IUA7

  — Carlos Saucedo (@Carlos_Saucedo) July 25, 2018

Take a tough Republican president, a Chinese government committed to help us, and a North Korean government faced with demands for denuclearization, and what do you get? It sounds like breaking news. But the scene comes from 2007, when the Bush administration thought it had achieved a historic breakthrough with North Korea. It was mistaken.

So, it appears, is Donald Trump. In June, he emerged from a summit with Kim Jong Un and tweeted that “everybody can now feel much safer” because there is “no longer a Nuclear Threat from North Korea.” He could have been accused of putting the cart before the horse, writes Steve Chapman, if there were a cart, or a horse.

View this article.