Category: reason

By announcing his retirement from the Supreme Court (effective at the end of July), Associate Justice Anthony Kennedy has poured more gas on a political season that’s already in flames. Since joining the Court in the late 1980s, Kennedy has been seen as the key swing vote and, in the words of Reason Senior Editor Damon Root, “perhaps the single most influential jurist alive today,” who “will surely go down in American legal history as one of the most influential justices to serve on the high court.”

In today’s Reason Podcast, I talk with Root, author of the 2014 book Overruled: The Long War for Control of the U.S. Supreme Court, about Kennedy’s crucial role in rulings on issues such as free speech, campaign finance, gay marriage, and abortion. One of the country’s keenest Supreme Court watchers, Root also talks about possible replacements for Kennedy and why he’d like to see the president nominate a jurist like Don Willett, Clint Bolick, or Diane S. Sykes.

Subscribe, rate, and review our podcast at iTunes. Listen at SoundCloud below:

Audio production by Ian Keyser.

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On Thursday, Massachusetts Republican Gov. Charlie Baker signed into law a bill that will raise the minimum wage in his state to $15 an hour by 2023 and authorize a generous paid leave program. The governor’s goal, it seems, was to stave off a threatened reduction in the sales tax at the ballot box.

Baker touted the legislation as a “grand bargain.” But in this case, the winners are those advocating for a higher minimum wage and more mandatory paid leave for workers. The losers, on the other hand, are the voters who won’t be able to decide on these issues for themselves—and the taxpayers and businesses who will have to face the consequences of the new policies alongside high sales taxes.

According to the Associated Press, had voters approved a ballot measure lowering the sales tax from 6.25 percent to 5 percent, the state would have lost about $1.2 billion a year.

By agreeing to a compromise that kept the sales tax issue off the ballot, Baker was trying to ensure the state won’t lose that revenue. At the same time, he also went out of his way to keep voters from deciding whether or not they wanted to lower the state’s sales tax.

The legislation will gradually raise the minimum wage from $11 an hour to $15 an hour by 2023. Tipped workers, meanwhile, will see their minimum pay increase from $3.75 an hour to $6.75 an hour over the next five years. Currently, the only other governors in the country to have signed $15 minimum wage bills into law are Andrew Cuomo of New York and Jerry Brown of California, both Democrats.

Roughly 840,000 worker will get a pay raise, according to the Massachusetts Budget and Policy Center. However, the bill will also eliminate time-and-a-half pay for Sundays by 2023.

Regarding the new paid leave policy, workers will be able to take as much as 12 weeks off if they need to care for either an ill family member or a new baby. They’ll be allowed up to 20 weeks to deal with their own health needs. State Rep. Paul Brodeur (D–Middlesex) said it would be the most generous in the country.

Finally, the bill does not lower the state’s sales tax, though it does institute an annual sales tax holiday in August.

“I am thankful that all parties came together, compromised and found common ground to produce a better set of policies than what the ballot questions represented,” Baker said Thursday. “The Massachusetts workforce continues to grow with more and more people finding jobs and our administration is committed to maintaining the Commonwealth’s competitive economic environment.”

Though business leaders are concerned about raising the minimum wage to $15 an hour, some seem to think that it was better to implement an increase via a compromise rather than through a ballot measure.

“A lot of small businesses out there are fearful and angry over a potential $15-per-hour minimum wage and a new paid leave mandate, but we have to look at the reality of what we might be able to do through a compromise instead of what would occur through a ballot initiative,” Jon B. Hurst, the president of the Retailers Association of Massachusetts, told the Boston Globe. “You don’t reach compromises on the ballot. You reach compromise through the legislative process,” Hurst added.

Almost two decades ago, Donald and Irma Shirkey, who live in Pacific Grove, California, bought a second house for their children and grandchildren to use when they came to visit. To cover the cost of a second home, the Shirkeys rented it out.

Starting in 2010, however, Pacific Grove began to require licenses for property owners who offer short-term rentals. Soon after the ordinance passed, the Shirkeys did what they were supposed to do, making the necessary (and costly) changes to their rental home to satisfy city regulators and obtain a license.

The local government didn’t stop there. Last year, Pacific Grove officials asked the elderly couple to obtain another short-term rental license, this time for an upstairs guest quarters too small to be viable for most renters. The new licenses are granted via an arbitrary lottery system, which means it is possible for homeowners with multiple violations or nuisance complaints to “win” the right to continue renting their space, while more law-abiding homeowners could be denied that option by the luck of the draw. If they do not win the lottery, the Shirkeys will not be able to rent out their second home any longer and consequently might not be able to afford the house.

The Shirkeys are now suing Pacific Grove in the Monterey County Superior Court over these violations of their property rights. It’s one of three lawsuits launched this week by the Goldwater Institute, a free market think tank based in Arizona. Cases also have been filed in Seattle and Miami Beach, where similar regulations are part of “a misguided war on home sharing nationwide,” says Christina Sandefur, Goldwater’s vice president.

“Cities are punishing responsible homeowners simply because a handful of landlords operate nuisance properties,” says Sandefur. “The answer is to use existing laws to crack down on bad actors, not to strip everybody of their property rights.”

In Seattle, people who own more than three homes are prevented from renting them for short periods of time, which harms homeowners who earn their livelihood that way. Goldwater is challenging that rule on behalf of a property owner who has served more than 2,500 customers.

In Miami Beach, outside of certain “rental zones,” landlords can be fined up to $100,000 for renting out one of their properties. Those penalties, city officials acknowledged last year, are “grossly disproportional.” Goldwater’s lawsuit, filed on behalf of woman who got through the 2008 recession by renting out her two properties on Biscayne Bay, notes that the Florida Constitution prohibits excessive fines.

Chicago has slapped motorists with more than $100 million in vehicle impound fines since 2012 under a program that community activists and civil liberties groups say leaves poor defendants bereft of their cars and buried in debt.

Between 2012 and 2017, Chicago imposed $114 million in fines in more than 108,000 impound cases, according to records from Chicago’s vehicle impound database obtained by Reason. Roughly $36 million of that money was collected based on drug violations.

In April, Reason published an investigation into Chicago’s vehicle impound program, detailing how the uniquely punitive system is used to generate revenue for the cash-strapped city, often on the backs of people who can’t afford it:

The city says it is simply enforcing nuisance laws and cracking down on scofflaws. But community activists and civil liberties groups say the laws are predatory, burying guilty and innocent owners alike in debt, regardless of their ability to pay or the effect losing a vehicle will have on their lives.

“There’s plenty of reason to be concerned that there’s injustice being done to people who are mostly poor, people who aren’t in a position to fight back,” says Ben Ruddell, a staff attorney at the American Civil Liberties Union (ACLU) of Illinois. “The city has been perpetuating an exploitative system, charging exorbitant fees in a way that it knows is likely to make it so folks never get their cars out of impoundment.”

The story highlighted the case of Spencer Byrd, a man from Harvey, Illinois, who had been fighting for nearly two years to get his Cadillac DeVille back after the Chicago Police Department impounded it. Byrd was a self-employed auto mechanic, and he said he was giving a client a ride home after a service call when the police pulled him over and discovered heroin in the passenger’s pocket. Even after an Illinois judge ordered Byrd’s car released to him while his state asset forfeiture case was pending, finding he faced substantial financial hardship, the city refused to give it up it until Byrd paid off fines and fees he owed the city.

Although Byrd won the state forfeiture case, a Chicago administrative judge ruled that he was still liable under the city’s municipal code, which only requires a preponderance of evidence to establish guilt, does not give property owners a right to an attorney, and does not allow an “innocent owner” defense in impound cases. Even if a vehicle’s owner is not aware of a violation, as when a teenager borrows his parents’ car, the owner is still liable for thousands of dollars in fines and fees.

Byrd was fined $2,000, an amount he couldn’t afford, since he relied on his car for work. His Cadillac remains in an impound lot to this day.

Byrd’s case is not unusual. Defense attorneys told Reason it was common for clients in drug cases who managed to beat a state forfeiture case to suddenly find they were also facing a Chicago impound case.

Today’s numbers provide additional details on how Chicago uses fines and fees. The most common reason for impounding a car was driving on a suspended license, which accounted for $47 million in fines. Unpaid parking and traffic tickets can lead to driver’s license suspensions in Chicago. The debts can’t be erased through bankruptcy, and even relinquishing one’s car to the city will not count toward paying down fines and fees.

A ProPublica investigation earlier this year found the city raised $246 million in tickets in 2016, when it asked the state to suspend 21,000 licenses. A WBEZ/ProPublica story published Wednesday revealed 20,000 instances in which the city slapped motorists with multiple $200 tickets on the same day for having an expired vehicle sticker, which Chicago requires residents to buy annually.

There are dozens of impoundable offenses on the city’s books. City records show Chicago fined motorists a total of $378,000 between 2012 and 2017 for playing music too loud. Other impoundable offenses include soliciting a prostitute ($831,800 in fines), possessing graffiti materials ($7,000), littering ($20,650), and illegal fireworks ($5,000). And in every one of those cases, the defendant lost his or her car, possibly for good.

Those fines do not include storage fees that accumulate after an impoundment, which often exceed the fine by the time a case is resolved. A case sheet provided by a defense attorney shows one defendant had racked up nearly $16,000 in storage fees on top of a $2,000 narcotics fine by the time his or her case was finally decided.

The records show the total amount of impound fines fell from a peak of $23 million in 2012 to a low of $16.6 million in 2016, followed by a slight uptick the following year.

You can see and download all of the data Reason obtained at GitHub.

Over the past two decades, Mary Jackson has helped countless women, especially women of color, to embrace breastfeeding by promoting its benefits and providing them with valuable techniques. The founder of Reaching Our Sisters Everywhere (ROSE), Jackson is a certified lactation consultant (CLC), one of the two certification options available to those in the business of breastfeeding. She works with women at Atlanta’s Grady Memorial Hospital, and has trained both medical students and doctors around the country on breastfeeding best pactrices.

Yet, under the Georgia Lactation Consultant Practice Act—set to go into law on July 1—Jackson’s certification, along with the credentials of over 800 others, will no longer meet state requirements.

Only four states even require a license for professional lactation consulting. Georgia is the only one that will require lactation consultants to have certification from the International Board of Certified Lactation Consultants (IBCLC).

The IBCLC certification is costly and time-consuming, requiring almost two years worth of classes for information that is near useless in application. That’s why ROSE is suing the state over its burdensome new occupational licensing requirements, with help from the nonprofit Institute for Justice (IJ).

“Everyday I go to work with a smile on my face because I’m doing something I love—helping moms help their newborns,” said Jackson in an interview with IJ. “I don’t want to give that up, and I shouldn’t have to. I’m passionate about breastfeeding and I do everything I can to make sure moms in minority, rural, and at-risk communities, regardless of their socioeconomic status, have access to quality lactation support from qualified lactation supporters.”

“But now, if the courts don’t intervene,” she continued, “hundreds of my colleagues across the state will be out of a job, unable to continue to help their community, and thousands of moms will be left without the help they need.”

Under the new law, there will only be around 400 lactation consultants who meet state requirements to provide their services to new mothers.

ROSE and IJ are now seeking a temporary restraining order to delay the law taking effect. They argue that the new lactation consultant licensing requirements are a violation of the Georgia constitution, which guarantees equal protection and substantive due process. The government cannot license an occupation without there being a “real and substantial” connection between the license and the public good, IJ lawyers note.

Jaime Cavanaugh, the IJ attorney handling this case, put it best when she said: “The state itself concluded in 2013, licensing lactation consultants will only decrease access to breastfeeding support. This law serves no purpose other than to enrich one group of privately certified lactation consultants to the detriment of all others.”

The lawsuit was filed on Monday, June 25.

A Wednesday interview between James Schwab, the former Immigration and Customs Enforcement (ICE) spokesperson-turned-whistleblower, and CBS News’ Jamie Yuccas was interrupted by the arrival of federal agents. According to CBS News, which caught the visit on camera, the guests identified themselves as agents with the Department of Homeland Security Inspector General’s Office and questioned Schwab about the events that ultimately led to his resignation.

Schwab resigned from his position in March after strongly disagreeing with Attorney General Jeff Sessions’ media campaign against Oakland, California, Mayor Libby Schaaf. In February, Schaaf warned immigrants in her city of upcoming ICE raids. She later released a statement regarding the “law-abiding immigrants and families who deserve to live free from the constant threat of arrest and deportation” and believed it to be her “duty and moral obligation as Mayor to give those families fair warning when that threat appears imminent.”

The raids resulted in the arrest of 232 immigrants out of 1,000 possible targets. As Schwab explained in his CBS interview, the arrest results were actually “16 percent higher” than ICE’s estimates. Despite this, Sessions claimed in March that Schaaf was personally responsible for “needlessly [endangering] the lives of our law enforcement officers to promote a radical open-borders agenda.” The attorney general said the warning led to ICE’s failure to make an additional 800 arrests, classifying the unarrested as “800 wanted criminals that are at large.”

Schwab told Yuccas that the statement was “completely false” and said it made him “extremely uncomfortable.” He once argued in March “We were never going to pick up that many people. To say that 100 percent are dangerous criminals on the street, or that those people weren’t picked up because of the misguided actions of the mayor, is just wrong.” When presented with opportunities to clarify, Schwab said that his Washington, D.C., higher-ups instructed him not to dispute Sessions.

“I could not fathom staying at an organization that was OK with lying to the American public. I hate that. In 17 years in the military, at the Department of Defense as a civilian, at NASA, and now at Homeland Security, I have never been asked to lie. I have never been asked to perpetuate a lie, which is the same as lying,” he said, speaking of the eventual decision to resign.

As Schwab and Yuccas were conversing, two men dressed in suits knocked on the door. The men, who introduced themselves as federal agents, told Yuccas their visit was confidential. Following the visit, Schwab revealed that he was asked about Schaaf’s leak. Schwab maintained that he neither met nor contacted the mayor.

Schwab said the interaction as “intimidation.” He then reaffirmed his decision to speak up and empower others in the federal government facing similar dilemmas.

Although Anthony Kennedy joined all three decisions in which the Supreme Court has upheld the constitutional right to keep and bear arms, his retirement probably means the Court will be less reluctant to define the contours of that right. In the decade since the Court first ruled that a law was inconsistent with the Second Amendment, it has passed up almost every opportunity to resolve lingering questions about which forms of gun control are constitutional. It seems clear that Kennedy bears much of the responsibility for that reticence.

It takes four votes to grant Supreme Court review. Two justices, Clarence Thomas and Neil Gorsuch, are on record as criticizing the Court’s neglect of the Second Amendment. On three occasions, Thomas has written dissents arguing that the Court should have agreed to hear a challenge to a gun control law. Last year, in a case involving California’s prohibitive restrictions on carrying guns in public, Gorsuch added his name to one those dissents.

While Samuel Alito did not join any of those dissents, he seems to favor a more aggressive defense of the right to arms recognized in District of Columbia v. Heller, the landmark 2008 decision that overturned a handgun ban in the nation’s capital. Alito wrote the majority opinion in the 2010 case McDonald v. Chicago, which overturned that city’s handgun ban and confirmed that “the Second Amendment right is fully applicable to the States.” Chicago “ask[s] us to treat the right recognized in Heller as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Claus,” Alito observed in that case. Thomas argues that his colleagues have in effect been doing what Chicago wanted it to do: treating the right to armed self-defense as a second-class right, “this Court’s constitutional orphan.” Alito’s concurring opinion in Caetano v. Massachusetts, a 2016 case involving a state ban on stun guns, suggests he is sympathetic to that view.

Ther Supreme Judicial Court of Massachusetts had upheld the law based on the mistaken premise that weapons are covered by the Second Amendment only if they are appropriate for military use and were familiar to Americans in 1791. That assumption was plainly inconsistent with Heller, and the Supreme Court said so in a brief per curiam opinion that stopped short of overturning the law (a step the Massachusetts court took a month later). Alito’s concurring opinion, which Thomas joined, faulted his colleagues for their “grudging” decision and eloquently sympathized with Jaime Caetano, the woman who challenged the ban on stun guns after she was convicted of violating it.

Caetano bought a stun gun to defend herself against an abusive boyfriend and brandished it in a confrontation that might otherwise have ended in serious injury or death. “Under Massachusetts law,” Alito observed, “Caetano’s mere possession of the stun gun that may have saved her life made her a criminal….If the fundamental right of self-defense does not protect Caetano, then the safety of all Americans is left to the mercy of state authorities who may be more concerned about disarming the people than about keeping them safe.”

It seems reasonable to assume that Alito is not one of the justices who is stopping the Court from hearing Second Amendment cases. That leaves Chief Justice John Roberts and Kennedy, both of whom joined the majority in Heller and McDonald but seem disinclined to address important issues those decisions left unresolved, including the right to bear arms outside the home, the constitutionality of bans on particular kinds of firearms (such as “assault weapons”), and the appropriate level of scrutiny for gun control laws.

Given Donald Trump’s avowed intent to pick a replacement for Kennedy from a list of candidates favored by conservatives and the president’s commitment to defending the Second Amendment (which he views as politically important even if he does not really care much about it), his nominee probably will be more inclined than Kennedy to take on these questions. Assuming Alito also wants to hear more Second Amendment cases, Kennedy’s replacement would provide a crucial fourth vote to review decisions upholding gun control laws, forcing Roberts to take sides on controversies he seems keen to avoid.

The Supreme Court announced this morning that it will not reconsider the conviction and life sentence without parole of Ross Ulbricht, convicted for various crimes associated with founding and operating the darkweb site Silk Road. The Supreme Court typically does not explain such rejections.

It’s a shame they aren’t required to explain themselves, because the sea change in Fourth Amendment jurisprudence the Supremes effected with last week’s Carpenter decision definitely means that the ways the government used warrantless searches of Ulbricht’s computer use in arresting and convicting him are far less obviously legal than the 2nd Court of Appeals in considering Ulbricht’s appeal were required to see them by pre-Carpenter precedent.

It’s not that Carpenter, which was about cellphone records and not internet data, unequivocally dictates that Ulbricht should have won on appeal had the Court considered his case. But the entire Fourth Amendment environment under which he was arrested and convicted is so different now that a thorough rethinking was definitely in order.

The Fourth Amendment wasn’t the only issue the Court had an apposite opportunity to rethink with Ulbricht’s case. His life sentence without parole was based on accusations he was never actually tried on—namely that he was involved in planning (uncommitted) murders for hire. That raises important Sixth Amendment questions that at least Justices Thomas and Gorsuch have shown past interest in rethinking if the right case came along.

Ulbricht’s lawyer Kannon Shanmugam wrote in an earlier memo to amici in the case that for the actual crimes he was convicted on, “Ulbricht’s Sentencing Guidelines range would have resulted in a recommended sentence of, at most, 30 years in prison.” Despite the manifest injustice of sentencing based on crimes never proven in court, “the Court has previously declined to grant certiorari on petitions presenting this question” (of sentences based on unadjudicated accusations).

As the cert petition for Ulbricht explained, “it is hard to imagine a better example of the consequences of runaway judicial factfinding than this case. Petitioner, a young man with no criminal history, was sentenced to life imprisonment without the possibility of parole for drug crimes that do not ordinarily carry that sentence, based substantially on numerous factual findings made by the sentencing judge by a preponderance of the evidence.”

Most reasonable people would agree judges shouldn’t hand down sentences for crimes never proven in court. It’s a question that, in addition to the very important Fourth Amendment implications, made Ulbricht’s case one urgently requiring rethinking. Unfortunately and for reasons unknown, the Supreme Court did not agree.

Ulbricht’s mother Lyn has been a tireless crusader explaining the injustices involved in the investigation and sentencing of her son. (See an interview with her in the July print issue of Reason.) In a written statement this morning, she says “This is devastating news for Ross and our family.”

She goes on to explain why even Americans who might have no particular sympathy for her or her son personally should also be discouraged. The Court’s declining to reconsider his case “is also a blow to privacy rights and protections. While the Carpenter decision establishes that the government must obtain a warrant to search our cell phone records, Ross’s case is much more far reaching. With this denial of certiorari and its arguments, the Court continues to permit the government to secretly track our internet browsing history and activity with no warrant, oversight or probable cause. Internet activity offers up a wide range of personal and relevant information, including religious and political affiliations, sexual orientation and activity, medical information, apps, etc. Surely it is in the spirit of the Fourth Amendment that obtaining and using this information, at the least, should require a warrant. Today’s order puts all our privacy in peril and bolsters the surveillance state.”

More than a week after protesters forced the closure of Immigration and Customs Enforcement (ICE) headquarters in Portland, federal officers in riot gear moved in on the demonstrators Thursday in an attempt to reopen the facility.

The Occupy ICE PDX protest started early last week, as demonstrators set up camp along the building and blocked the entrance. They were protesting the Trump administration’s zero tolerance immigration policy which triggered separations of undocumented families apprehended while trying to cross the U.S.-Mexico border.

After issuing several notices reminding the protesters they were breaking the law by blocking the entrance to the building and ordering them to vacate, federal officers made their move early Thursday morning.

“At approximately 5:30 a.m. today, federal law enforcement officers initiated a law enforcement action to reopen the federal facility at 4310 SW Macadam Avenue in Portland,” Federal Protective Service spokesman Robert Sperling said in a statement.

According to KGW News, federal officers only took action to clear the entrance so the facility could be reopened. Many protesters camped along the side of the building were left alone. Still, a Department of Homeland Security spokesperson told KATU News that several protesters were arrested.

Federal officers at ICE building in Southwest Portland. Clearing way for business to resume here. Area that is not federal property and not in way of people coming and going from building appear to be left alone. A few officers are on the roof. @KGWNews @KGWSunrise pic.twitter.com/B6uQ0XgWoi

— Tim Gordon (@TimGordonPDX) June 28, 2018

The demonstrators, who successfully shut down the facility on June 20, have previously said they have no intention of leaving. “This group here is ready to move forward and continue doing what we need to do to make sure we abolish ICE,” said Danialle James, a member of the Occupy ICE PDX movement.

Several hundred people were involved in the protest, some of whom carried signs that said things like “Refugees Welcome” and “Abolish ICE.”

The protest outside ICE headquarters in Portland has sparked similar demonstrations in other major cities across the nation.

Outside ICE’s office in Detroit, for example, demonstrators gathered on Monday with signs, tents, and folding chairs. According to an ICE spokesperson, the protest caused normal operations to be “briefly disrupted.” In Los Angeles, protesters set up camp outside an ICE facility on Saturday, and in New York on Monday, protesters forced the cancellation of all hearings at an ICE processing center.

However, the Occupy ICE movement has attracted the ire of at least one Republican lawmaker. In a Sunday tweet, Rep. Steve King (R–Iowa) suggested that the protests could serve as a lead-up to civil war.

“America is heading in the direction of another Harpers Ferry. After that comes Ft. Sumter,” King wrote, referring to the 1859 attack that served as a precursor to the Civil War.

While being scrutinized for exorbitant spending habits, Environmental Protection Agency (EPA) Administrator Scott Pruitt faces new controversy as a report from The Daily Beast alleges that Pruitt was personally involved in the “ratfucking” of a former aide.

“Ratfucking,” as described by former EPA officials, is a retaliatory campaign that involves calling potential employers to tarnish a former employee’s reputation. The practice is generally used after said employee falls out of favor with an influential boss. In the case of former EPA Scheduling Director Millan Hupp, this moment may have occurred after she testified before Congress that Pruitt had her perform odd personal tasks such as a buying a used mattress from the Trump International Hotel.

The fallout from the testimony nearly cost Hupp her reputation:

According to three sources familiar with the conversations, Pruitt was livid over Hupp’s testimony, which he felt had been particularly humiliating. And he personally reached out to allies in the conservative movement, including some at the influential legal group the Federalist Society, to insist that she had lied about, or at least misunderstood, the request for a used Trump mattress. He also stressed that Hupp could not be trusted—the implication being that she should not be hired at their perspective institutions.

The report goes on to claim that Hupp is not the only aide to receive such treatment. Kevin Chmielewski, Pruitt’s former deputy chief of staff, accused Pruitt of retaliation following accusations that he leaked information on Pruitt’s egregious spending. The Daily Beast‘s source claimed that Pruitt tasked current employees with leaking information about Chmielewski’s own work habits.

The allegation of retaliation joins growing list of Pruitt scandals, which include the commissioning of a $43,000 phone booth and the use of his position to try to obtain a Chick-fil-A franchise for his wife. Pruitt is also accused of excluding certain journalists, namely those perceived to be ‘unfriendly,’ from covering a National Leadership Summit.

Reason‘s Ronald Bailey observed in May that Pruitt’s tactics have quickly undermined his reputation as a deregulatory reformer in the EPA.